D.W. v. A.G.

Summary

The Nebraska Supreme Court reviewed consolidated appeals concerning a sexual assault protection order and a harassment protection order. It held that entering the harassment protection order without sufficient notice and an opportunity to be heard violated the respondent’s procedural due process rights, and remanded with directions to vacate that order. The court affirmed the dismissal of the sexual assault protection order, finding no plain error because the evidence regarding consent and capacity was conflicting.

Holdings

1. The county court had subject matter jurisdiction because it had authority to hear and determine cases within the general class of harassment protection-order proceedings, even though D.W.'s petition sought a sexual assault protection order.
2. The entry of the harassment protection order violated A.G.'s procedural due process rights because he was not given sufficient notice that a harassment protection order was being sought and was not given an opportunity to present evidence and argument against that theory.
3. The county court did not plainly err in dismissing the sexual assault protection order because the evidence concerning consent and D.W.'s capacity to consent was conflicting and required credibility determinations.
4. When a party's brief fails to comply with Neb. Ct. R. App. P. § 2-109(D)(1), the appellate court may treat the party as having failed to file a brief or may examine the proceedings for plain error.

Questions Presented

1. Whether the county court lacked subject matter jurisdiction to enter a harassment protection order when D.W. had petitioned only for a sexual assault protection order.
2. Whether entering the harassment protection order after the close of evidence, without notice and an opportunity for A.G. to defend against that theory, violated procedural due process.
3. Whether the evidence supported the dismissal of the sexual assault protection order and whether the county court committed plain error in doing so.
4. Whether the county court's sua sponte conversion or refiling of the proceeding improperly made the court an advocate.

Disposition

reversed_and_remanded