Opinion
No. A-12-378
10-02-2012
RICHARD J. FAESSLER, APPELLANT, v. LORI L. FAESSLER, APPELLEE.
Paul W. Snyder, of Smith, Snyder & Petitt, G.P., for appellant. Robert M. Brenner, of Robert M. Brenner Law Office, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Morrill County: LEO DOBROVOLNY, Judge. Reversed and vacated.
Paul W. Snyder, of Smith, Snyder & Petitt, G.P., for appellant.
Robert M. Brenner, of Robert M. Brenner Law Office, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
Richard J. Faessler appeals from an April 13, 2012, domestic abuse protection order entered against him and in favor of his spouse, Lori L. Faessler, in the district court for Morrill County. Because Lori did not file a cross-petition or a counterpetition seeking a protection order pursuant to Neb. Rev. Stat. § 42-924.03 (Reissue 2008), we find that the entry of the April 13 order against Richard was an abuse of the district court's discretion. Thus, we reverse and vacate that order.
BACKGROUND
On April 4, 2012, while dissolution of the parties' marriage was pending, Richard filed a petition and affidavit to obtain a domestic abuse protection order against Lori in the Morrill County District Court. At that time, an order of January 12, 2011, was in effect with regard to the dissolution case, providing, among other things, "Both parties are mutually restrained from molesting or disturbing the peace of the other party." An evidentiary hearing on the domestic protection matter was held on April 11, 2012.
At the domestic protection proceeding, Richard testified that on the afternoon of Sunday, April 1, 2012, he was sitting on the front step of his residence with the parties' two daughters, one who was a minor child born in February 1995 and the other who was an adult, and the parties' grandson. Richard testified that he gave his grandson a ride to the mailbox on his 4-wheeler, at which time he noticed Lori's pickup truck being driven rapidly down the highway and pulling into his driveway. He testified that Lori drove by him and eventually made her way inside his residence.
Richard testified that he followed Lori inside the house, whereupon he observed broken glass "all over" the kitchen floor, so he grabbed Lori and proceeded to remove her from the house. Richard testified, "I bear hugged her and just carried her outside to the front step and released her at the front step." Richard described what happened thereafter as follows:
She went down the first two flights of stairs and at that time after she went down the first two flights of stairs, . . . my grandson, was behind me, and [my minor daughter] was to my left and when I released Lori, she turned around and squared up to me like she wanted to hit me. So then I pushed her down to the two flights of stairs to the lower level and that's when she turned around and grabbed a big rock out of the garden there, turned, and looked at me, and threw the rock at me where it went between me and [my minor daughter] and hit the back door.Richard testified that the rock Lori threw was the size of a grapefruit and that it "gouged" the back door.
Richard testified that after Lori threw the rock at him, she grabbed a metal lawn ornament, pulled it out of the ground, and flung it in Richard's direction, hard enough that it stuck in the ground. He testified that the lawn ornament had sharp "piercings" on the end of it. Richard testified that after that, he went up to Lori, grabbed her, and pinned her to the ground. He testified that he told his daughters to call the 911 emergency dispatch service, which they did. Richard kept Lori pinned down until the county sheriff arrived. The sheriff testified that he drove Lori to her residence in order to separate her and Richard and that he asked the parties' daughters to return Lori's vehicle to her.
Richard also testified about an incident that occurred on March 31, 2012. He testified that on that evening, he went out to dinner with a woman he had been dating and that when he returned home around 10:30 p.m., he discovered damage to his home and to his pickup truck, which he did not drive that night. Specifically, he observed broken shutters on his bedroom window, a double-pane window that was broken out in his bedroom, and a rock that was lying on the floor of his bedroom. He also observed that the windshield of his pickup was completely broken out and that three large rocks were sitting beside the vehicle. He also noticed hammer marks on the hood of his pickup.
Lori admitted that she was at Richard's property on the evening of March 31, 2012, and that she caused damage to his home. There was no testimony elicited as to the specific damage. Lori testified she caused the damage because she was upset after being contacted that night by friends who told her Richard was out at a bar with his new girlfriend. Lori testified that she and Richard had been engaging in a sexual relationship leading up to these incidents and that she had hoped they were going to work things out. As for the April 1 ordeal, Lori testified that her daughters had lied to her about their whereabouts, so she decided to drive to Richard's house and see what was really going on. Lori's version of what occurred after she entered Richard's residence on April 1 diverges significantly from Richard's version. Without recounting every detail, suffice it to say that she claims she did not mean to throw the rock or the lawn ornament at Richard, that she felt Richard was being overly aggressive with her, and that he was using excessive force to restrain her.
At the conclusion of the protection order hearing, the court explained that it would be entering a mutual domestic abuse protection order. The court found that each party was engaged in conduct that would be sufficient for the entry of such under Neb. Rev. Stat. § 42-903(1)(a) and (b) (Reissue 2008), which provides:
For purposes of the Protection from Domestic Abuse Act, unless the context otherwise requires:The court stated that it found Lori's actions on the night of March 31, 2012, indicative of her anger "and that anger seems to spill over into the next day." With regard to Richard, the court found that his actions in responding to Lori were "completely inappropriate." The court stated that the parties can "gain some relief" from the mutual protection order by demonstrating, for example, that they have attended professional counseling to deal with a "very explosive, and violent, and harmful situation to [their] children."
(1) Abuse means the occurrence of one or more of the following acts between household members:
(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;
(b) Placing, by physical menace, another person in fear of imminent bodily injury[.]
A modified domestic abuse protection order was filed on April 13, 2012, in favor of Richard and against Lori. Also on April 13, the district court filed a domestic abuse protection order in favor of Lori and against Richard. Richard now appeals.
ASSIGNMENT OF ERROR
Richard alleges, consolidated and restated, that the trial court abused its discretion by entering a domestic protection order against Richard when Lori never requested such relief.
STANDARD OF REVIEW
An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
ANALYSIS
Pursuant to § 42-924.03, a court shall grant a respondent a protection order only if "(1) the respondent files a cross or counter petition seeking a protection order and (2) the issuing court makes specific findings of domestic or family abuse against the respondent and determines that the respondent is entitled to a protection order." In this case, Lori did not file a cross-petition or a counterpetition requesting a protection order against Richard. Rather, the court entered such sua sponte after hearing the evidence and finding that both parties' actions fell within § 42-903(1)(a) and (b).
Whether a decision by the trial court conforms to the law is by definition a question of law. Zahl v. Zahl, supra. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the trial court. Id. A court's determination of questions raised by the facts, but not presented in the pleadings, should not come at the expense of due process. Id.
We find that the district court's act of entering a domestic abuse protection order against Richard, when the pleadings do not seek one and no cross-petition or counterpetition was filed by Lori, was an abuse of discretion.
CONCLUSION
For the foregoing reasons, we reverse and vacate the April 13, 2012, domestic abuse protection order entered against Richard and in favor of Lori.
REVERSED AND VACATED.