Domestic Abuse Protection Orders in Omaha
A recent case shows how a protection orders are reviewed by a higher court on appeal. This information is not only important for deciding whether to appeal a domestic abuse protection order ruling, but also for understanding some of the issues that come up in protection order hearings.
Some of the consequences of a domestic abuse protection order hearing In this case the issues were: (1) Whether Jamie was properly served by the sheriff; (2) Whether there was sufficient evidence to support the domestic abuse protection order.
Facts: William filed a domestic abuse protection order against his daughter, Jamie, asserting William was a victim of domestic abuse. Specifically, William stated on the affidavit that he called law enforcement to remove Jamie from his home because she was verbally abusive and refuse to leave upon law enforcement request, among others. The district court entered an order to show cause, and for the order and petition to be served on Jamie. The sheriff attempted service on Jamie and left a ‘card,’ but was later able to successfully complete personal service on Jamie two days before the show cause hearing. Jamie did not appear at the show cause hearing and the court entered a domestic abuse protection order against her based on “evidence…adduced.” Because Jamie filed for a bill of exceptions out of time, the court only considered the transcript of the show cause hearing on appeal.
Issues: (1) Whether Jamie was properly served by the sheriff. (2) Whether there was sufficient evidence to support the domestic abuse protection order.
Holding: (1) A sheriff’s return of service is presumed to be correct. In the absence of evidence to the contrary, it may be presumed that public officers faithfully performed their duties and that absent evidence showing misconduct or disregard of law, the regularity of official acts is presumed. The transcript in this case contains a return of service that shows the sheriff recorded personal service on Jamie at the parties’ shared home and served her with, inter alia, the complaint for domestic abuse protection order and the order to show cause which set the hearing date. Absent any evidence before us to support Jamie’s claim to the contrary, an appellate court is presumed the return of service in the trial court record is accurate.
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(2) In the absence of a complete bill of exceptions, an appellate court presumes that the issues of fact in the order of the trial court were supported by the evidence and were correctly determined. An appellant may not successfully assert that the evidence was insufficient to support a lower court’s order when the record on appeal affirmatively demonstrates that sufficient evidence was considered by the lower court, with notice to and without objection by the appellant. The transcript states William filed a petition and an affidavit to obtain a domestic abuse protection order against Jamie. The order of the district court states that at the hearing
to show cause, “[e]vidence [was] adduced,” and the court found that William was entitled to a protection order. Because William filed a petition and an affidavit, and the district court considered evidence, an appellate court is required to presume that this evidence supports the district court’s order granting a protection order against Jamie.
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