Nebraska Advance Sheets
TORRES v. MORALES 587
Cite as 287 Neb. 587
Orfa I. Torres, appellant, v.
Benjamin H. Morales, appellee.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-106.
1. Injunction: Judgments: Appeal and Error. A protection order pursuant to Neb.
Rev. Stat. § 42-924 (Cum. Supp. 2012) is analogous to an injunction. Thus, the
grant or denial of a protection order is reviewed de novo on the record. In such
de novo review, an appellate court reaches conclusions independent of the factual
findings of the trial court. However, where the credible evidence is in conflict on
a material issue of fact, the appellate court considers and may give weight to the
circumstances that the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another.
2. Constitutional Law: Judgments. Because the intrusion on a respondent’s liberty
interests is limited, the procedural due process afforded in a protection order
hearing is likewise limited.
3. Judges. A judge must be careful not to appear to act in the dual capacity of judge
and advocate.
4. Judges: Trial. A judge must be impartial, his or her official conduct must be free
from even the appearance of impropriety, and a judge’s undue interference in a
trial may tend to prevent the proper presentation of the cause of action.
5. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias
or prejudice bears a heavy burden of overcoming the presumption of judi-
cial impartiality.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed in part, and in part reversed.
Mark T. Bestul, of Legal Aid of Nebraska, for appellant.
No appearance for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
P er Curiam.
INTRODUCTION
Orfa I. Torres sought a domestic abuse protection order
against Benjamin H. Morales. After a show cause hearing, the
district court dismissed the case and taxed the costs to Torres.
Torres appeals. We affirm in part, and in part reverse.
BACKGROUND
The Protection from Domestic Abuse Act, Neb. Rev. Stat.
§ 42-901 et seq. (Reissue 2008 & Cum. Supp. 2012), permits
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588 287 NEBRASKA REPORTS
a victim of domestic abuse to file a petition and affidavit seek-
ing a protection order pursuant to § 42-924.
On January 7, 2013, Torres applied for a protection order
against her boyfriend, Morales. Torres described three inci-
dents that she felt warranted the protection order. The district
court issued an order to show cause. On January 17, the court
held a show cause hearing. Torres appeared with counsel;
Morales appeared pro se. The district court judge first called
Torres to the witness stand and questioned her regarding the
incidents cited in her affidavit.
The first incident Torres described involved an allegedly
intoxicated Morales yelling at Torres and her son on Christmas
Eve of 2012. Torres testified that after their disagreement, she
tried to retrieve her things from Morales’ grandparents’ home
where they had been visiting, but that Morales blocked her
in the hallway. Torres pushed Morales, and Morales grabbed
Torres’ shirt, causing her to fall on top of him. Torres then spit
on Morales.
The second incident took place approximately 11⁄2 weeks
after the first. Torres described the incident generally as
Morales’ constantly yelling and calling her names while she
tried to avoid him.
The final incident cited by Torres occurred approximately
a year prior to the first incident, when Torres was 3 months’
pregnant. Torres testified that Morales had been drinking alco-
hol and that the pair had been arguing. Morales attempted to
leave, and, concerned about him driving while intoxicated,
Torres came up behind him and held the door closed with her
hand. Morales fell backward, on top of Torres. Torres testified
that Morales elbowed her in her ribs, so she bit him. Concerned
about her pregnancy, Torres went to the emergency room the
next morning.
When Torres finished describing the three incidents, the
judge called Morales to testify and asked him about the same
incidents. Morales recalled the first two events similarly but
stated that he was not drinking during the second incident.
At one point during his testimony, Morales admitted, “We
have a lot of verbal arguments, and, you know, this might
be a good thing for both of us, this order to go in effect.”
Nebraska Advance Sheets
TORRES v. MORALES 589
Cite as 287 Neb. 587
The court then asked Morales whether he was opposing the
order. Morales said that he was not. The court asked Morales
if he understood the consequences of the court’s issuing
the order, and Morales asked what the consequences were.
The court listed potential legal consequences, including a
prohibition on possessing weapons and a potential effect on
future child custody issues. Morales expressed concern that
the protection order could possibly affect his job. The court
then asked Morales to continue giving his version of the
alleged incidents.
Morales described the third incident similarly as well, but
stated that he did not recall elbowing Torres and was only
pushing her so that he could get out the door to leave.
When Morales finished testifying, the court vacated its
order to show cause and dismissed the case. In its written
order, the court required Torres to pay the costs of the action.
Torres appeals.
ASSIGNMENTS OF ERROR
Torres assigns, reordered, the following errors of the district
court: (1) taxing the costs of the protection order to her with-
out making findings by clear and convincing evidence that the
statements in the petition and affidavit were false and that the
order was sought in bad faith; (2) not allowing her counsel to
participate in the proceedings, question Torres, or present any
additional evidence; (3) not allowing her counsel to cross-
examine Morales; (4) providing legal advice to Morales; (5)
failing to inquire whether the actions of Morales caused her
bodily injury or placed her in fear of bodily injury; (6) deny-
ing Torres a hearing before an impartial decisionmaker; and (7)
failing to issue a domestic abuse protection order.
STANDARD OF REVIEW
[1] A protection order pursuant to § 42-924 is analogous to
an injunction. Thus, the grant or denial of a protection order
is reviewed de novo on the record. In such de novo review, an
appellate court reaches conclusions independent of the factual
findings of the trial court. However, where the credible evi-
dence is in conflict on a material issue of fact, the appellate
court considers and may give weight to the circumstances that
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590 287 NEBRASKA REPORTS
the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another.1
ANALYSIS
Costs of Action.
In Torres’ first assignment of error, she asserts that the dis-
trict court erred in taxing costs of the action to her without
making findings by clear and convincing evidence that the
statements contained in her petition and affidavit were false
and that the protection order was sought in bad faith.
Section 42-924.01 states in part:
Fees to cover costs associated with the filing of a peti-
tion for a protection order or the issuance or service of a
protection order seeking only the relief provided by the
Protection from Domestic Abuse Act shall not be charged,
except that a court may assess such fees and costs if the
court finds, by clear and convincing evidence, that the
statements contained in the petition were false and that
the protection order was sought in bad faith.
In its order dismissing the case, the district court did not state
that it found the facts stated in Torres’ affidavit to be untrue by
clear and convincing evidence. Furthermore, because Morales
described the incidents similarly, our review of the record does
not support a finding that the facts stated were untrue.
Black’s Law Dictionary defines bad faith as “[d]ishonesty of
belief or purpose.”2 No evidence was presented suggesting that
Torres sought the order for any purpose other than protection
for herself or her children. Morales agreed that the parties often
did not get along. Even though the district court found the inci-
dents described did not warrant a protection order, it does not
appear that the order was sought in bad faith.
Without findings that the facts in the affidavit were not true
or that the order was sought in bad faith, the district court erred
in taxing the costs of the action to Torres.
1
Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999).
2
Black’s Law Dictionary 159 (9th ed. 2009).
Nebraska Advance Sheets
TORRES v. MORALES 591
Cite as 287 Neb. 587
Participation of Counsel.
In Torres’ second and third assignments of error, she asserts
that the court erred in not allowing her counsel to participate
in the proceedings, ask questions of either party, or present any
additional evidence.
[2] We have said that because the intrusion on a respondent’s
liberty interests is limited, the procedural due process afforded
in a protection order hearing is likewise limited.3
In Elstun v. Elstun,4 the trial court explicitly denied requests
from counsel for the opposing party to question his client and
cross-examine the appellant during a show cause hearing for
a protection order. In that case, we quoted Neb. Rev. Stat.
§ 27-614(1) (Reissue 2008), which states that “[t]he judge
may, on his own motion or at the suggestion of a party,
call witnesses, and all parties are entitled to cross-examine
witnesses thus called.” We therefore found the appellant’s
statutory right to cross-examine the witnesses had been vio-
lated. Similarly, in Hronek v. Brosnan,5 the Nebraska Court
of Appeals found the appellant’s due process rights were
violated when the court made a blanket statement that it
was not going to allow counsel to examine or cross-examine
witnesses.
In this case, there was no request by either party to question
either witness or present additional evidence. Without such a
request, or any indication from the court that such a request
would be denied, we cannot find that Torres’ right to cross-
examine Morales was violated.
The district court did not err by questioning Torres and
Morales at the hearing, and absent a request from counsel
to participate in the hearing, the court did err in not permit-
ting Torres’ counsel to question Morales or present addi-
tional evidence.
3
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). See, also,
Hronek v. Brosnan, 20 Neb. App. 200, 823 N.W.2d 204 (2012).
4
Elstun, supra note 1.
5
Hronek, supra note 3.
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Advising Pro Se Litigant.
In Torres’ fourth assignment of error, she asserts that the
district court erred in providing legal advice to Morales.
[3] We have held that “[a] judge must be careful not to
appear to act in the dual capacity of judge and advocate.”6
Torres argues that when Morales stated the protection order
might be a good idea and that the court advised Morales of the
consequences of having a protection order issued, “[t]he court
seemed to advocate that [Morales] change his mind . . . .”7
In Sherman v. Sherman,8 the Court of Appeals addressed
the trial judge’s actions regarding a pro se petitioner. In that
case, the petitioner applied for a domestic abuse protection
order, but at the hearing, the court, sua sponte, asked the bailiff
to retrieve a harassment protection order and stated that the
petitioner wanted to amend her petition. The Court of Appeals
held that
when presented with a situation in which an ex parte
domestic abuse protection order has been entered, but
at the hearing, it becomes apparent that the matter may
more properly be considered as a harassment protection
order, the judge should explain the requirements for both
domestic abuse and harassment protection orders and
allow the petitioner to choose which theory to pursue.9
Similarly, there are times when trial judges must inform a party
of the legal consequences of an order without directing the
party’s decision.
In this case, the court did not tell Morales whether to con-
test the protection order, it simply advised him of the con-
sequences of the order. Torres’ fourth assignment of error is
without merit.
6
Jim’s, Inc. v. Willman, 247 Neb. 430, 434, 527 N.W.2d 626, 630 (1995),
disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637
N.W.2d 898 (2002).
7
Brief for appellant at 17.
8
Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).
9
Id. at 347, 781 N.W.2d at 620.
Nebraska Advance Sheets
TORRES v. MORALES 593
Cite as 287 Neb. 587
Questions From Court.
In Torres’ fifth assignment of error, she asserts that the
district court erred in failing to inquire whether the actions
of Morales caused her bodily injury or placed her in fear of
bodily injury.
Under § 42-903(1), for the order to be issued, Torres needed
to prove that Morales had subjected her to domestic abuse,
defined as one or more of the following between house-
hold members: “(a) Attempting to cause or intentionally and
knowingly causing bodily injury with or without a dangerous
instrument; (b) Placing, by means of credible threat, another
person in fear of bodily injury; [or] (c) Engaging in sexual
contact or sexual penetration without consent as defined in sec-
tion 28-318[.]”
The judge told Torres he was going to allow both witnesses
an opportunity to give their side of the story for each of the
incidents provided in the petition and affidavit. Aside from a
few clarification questions, the judge allowed Torres to provide
a narrative of each of the events. The judge similarly allowed
Morales to provide a narrative of the events.
At one point, the judge asked Morales, “So on January 5th,
I take it — I haven’t heard from either one of you that there
was any physical contact or threats of any nature made by
anybody?” Even upon hearing this statement, Torres’ coun-
sel did not ask the court if he could question either Torres
or Morales.
Torres does not cite any legal authority for the proposi-
tion that the judge was required to ask any certain ques-
tion, rather than to allow her to provide, in narrative form,
details for the events she felt warranted the order. Torres’
counsel did not ask the court if he could ask additional
questions of Torres. Furthermore, the questions suggested in
Torres’ brief—whether Torres was injured or placed in fear of
injury—would not have been sufficient to warrant a protection
order under § 42-903, because that section requires intentional
injury or credible threats. Torres’ fifth assignment of error is
without merit.
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594 287 NEBRASKA REPORTS
Impartial Decisionmaker.
In Torres’ sixth assignment of error, she argues that the total-
ity of this case—questioning by the judge, advising Morales,
failing to ask whether Torres was injured or put in fear of
bodily injury, and taxing costs to Torres—indicates that Torres
was denied an impartial decisionmaker.
[4,5] We have held, “[a] judge must be impartial, his or
her official conduct must be free from even the appearance
of impropriety, and a judge’s undue interference in a trial
may tend to prevent the proper presentation of the cause of
action.”10 “[A] party alleging that a judge acted with bias or
prejudice bears a heavy burden of overcoming th[e] presump-
tion [of judicial impartiality].”11
Our analyses of the other assignments of error in this case
do not support a finding of partiality. The judge had statutorily
granted discretion to elect to question witnesses, and counsel
did not request leave to ask any additional questions. The
judge informed Morales of the legal consequences of the order
without telling him how he should proceed in the case. The
judge asked Torres to describe the events she felt warranted
a protection order and was not required to ask whether she
was injured or put in fear of bodily injury. Although the judge
improperly taxed costs to Torres, this alone is not enough to
overcome a presumption of impartiality. Torres’ sixth assign-
ment of error is without merit.
Protection Order.
In Torres’ seventh assignment of error, she asserts that the
district court erred in failing to issue a domestic abuse protec-
tion order based on the evidence presented in the case.
We have stated that even on de novo review, where
the credible evidence is in conflict on a material issue of
fact, the appellate court considers and may give weight to
10
Jim’s, Inc. v. Willman, supra note 6, 247 Neb. at 434, 527 N.W.2d at 630.
11
In re Interest of Jamyia M., 281 Neb. 964, 976, 800 N.W.2d 259, 268-69
(2011).
Nebraska Advance Sheets
SOURCEGAS DISTRIB. v. CITY OF HASTINGS 595
Cite as 287 Neb. 595
the circumstances that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
than another.12
For the order to be issued, Torres would have needed to
provide at least some evidence of abuse as defined under
§ 42-903(1). Based on her own testimony, the only bodily harm
inflicted on Torres was what appears to have been an acciden-
tal elbowing—this certainly falls short of the “intentionally and
knowingly” requirement of subsection (1)(a). Torres did not
present any evidence that Morales threatened her as required
by subsection (1)(b). And, finally, Torres did not present any
evidence of any nonconsensual sexual contact as required by
subsection (1)(c).
The district court did not err in failing to issue the protec-
tion order.
CONCLUSION
For the foregoing reasons, the order dismissing the cause is
affirmed, but the portion of the order requiring Torres to pay
the costs of the action is reversed.
Affirmed in part, and in part reversed.
Heavican, C.J., participating on briefs.
12
Elstun, supra note 1.
SourceGas Distribution LLC, a Delaware limited
liability company, appellant, v. City of H astings,
Nebraska, a municipal corporation, for and
on behalf of the board of public works
of the City of H astings, appellee.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-239.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law
that an appellate court independently reviews.
2. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
Torres v. Morales
Combined Opinion