Mahmood v. Mahmud

Nuzhat M ahMood, appellee , v.
R ajul-I-haque M ahMud, appellaNt.
778 N.W.2d 426
Filed February 5, 2010. 	No. S-09-511.
1. Judgments: Injunction: Appeal and Error. A protection order is analogous to
an injunction. Accordingly, the grant or denial of a protection order is reviewed
de novo on the record.
2. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
3. Jurisdiction. The issue of subject matter jurisdiction can be raised at any time.
4. Pleadings. A party is only required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
5. Pleadings: Notice. Plaintiffs are not required to plead legal theories or cite appro-
priate statutes so long as the pleading gives fair notice of the claims asserted.
6. Judgments: Pleadings. The contested factual hearing in protection order pro-
ceedings is a show cause hearing, in which the fact issues before the court are
whether the facts stated in the sworn application are true.
7. Pleadings: Proof: Records. The allegations of a petition require proof by evi-
dence incorporated in the bill of exceptions.
8. Pleadings: Trial: Evidence. A prima facie case may be established by a form
petition and affidavit, but the petition and affidavit cannot be considered as evi-
dence until offered and accepted at the trial as such.
9. Judgments: Proof. An ex parte order does not relieve the petitioner of the burden
to establish by a preponderance of the evidence the truth of the facts supporting
a protection order.
Appeal from the District Court for Douglas County: CRaIg
q. MCdeRMott, County Judge. Reversed and remanded with
directions.
John C. Wieland and Kevin J. McCoy, of Smith, Gardner,
Slusky, Lazer, Pohren & Rogers, L.L.P., for appellant.
Elizabeth S. Borchers, P.C., and Tyler C. Block, of Marks,
Clare & Richards, L.L.C., for appellee.
heavICaN, 	C.j., 	WRIght, 	C oNNolly, 	geRRaRd, 	StephaN,
MCC oRMaCk, and MIlleR-leRMaN, JJ.
MCC oRMaCk, J.
NATURE OF CASE
Rajul-I-Haque Mahmud (Rajul) appeals from a harassment
protection order entered in favor of Nuzhat Mahmood (Nuzhat).
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www.nebraska.gov/apps-courts-epub/
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We determine that the court had jurisdiction to issue the order
even though Nuzhat filed a petition for an abuse protection
order instead of a harassment protection order and even though
she did not request that a judge of the county court, as opposed
to a judge of the district court, hear her case. But we reverse
due to the lack of evidence presented at the hearing.
BACKGROUND
Nuzhat filed, in the district court for Douglas County, a form
petition and affidavit to obtain a domestic abuse and protection
order under Neb. Rev. Stat. § 42-924 (Reissue 2008). In the
petition and affidavit, Nuzhat averred that since her divorce
from Rajul in 2002, protection orders had been entered in
2002, 2003, and 2005. Nuzhat further averred that Rajul was
calling her home several times a week, and sometimes several
times a day, and that he had sent her roughly 100 letters over
the previous 2 years. The subject of Rajul’s correspondence
was to convince her that their marriage was still valid under
Islamic law and that they should reconcile. Nuzhat explained
that “[w]hile [Rajul] is careful to not use any words that may
be construed as threatening, the tone of his voice is menacing
and the frequency of his letters and phone calls have greatly
disturbed my peace.”
Nuzhat averred that she sought the protection order because
she was recovering from surgery for a torn anterior cruciate
ligament and felt she would be unable to protect herself. She
stated that Rajul had recently “threat[ened]” to “‘come see
[her].’” Nuzhat specifically requested that the court enter a pro-
tection order prohibiting Rajul from (1) imposing any restraint
upon her or her liberty; (2) threatening, assaulting, molesting,
or attacking her or otherwise disturbing her peace; and (3)
telephoning, contacting, or otherwise communicating with her.
Nuzhat also sought an order that Rajul stay away from her
residence and workplace. The petition was filed in the Douglas
County District Court on March 13, 2009, and was marked as
being “[a]ssigned to Judge McDermott,” who is a judge of the
county court for Douglas County.
On that same day, Judge Craig Q. McDermott found that
a harassment protection order pursuant to Neb. Rev. Stat.
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§ 28-311.09 (Reissue 2008) should be issued for a period of
1 year. The court found that it reasonably appeared from the
facts in the affidavit that irreparable harm would result before
the matter could be heard upon notice, so the court issued the
order ex parte. Rajul was served with a copy of the order and
informed that he had the right to appear and show cause why
the order should not remain in effect. On March 20, 2009,
Rajul requested a hearing.
At the hearing, Rajul appeared pro se and read a written
statement to the court and answered questions by the court.
Nuzhat’s counsel interjected some comments. No evidence was
formally admitted, nor was any sworn testimony presented.
The court concluded that although Rajul was not necessarily
“threatening” Nuzhat, he was “bothering” her, and it ordered
that the protection order remain in place.
ASSIGNMENTS OF ERROR
Rajul assigns that the district court erred because (1) the
court lacked jurisdiction to issue a harassment protection order
upon Nuzhat’s petition and affidavit; (2) issuance of a harass-
ment protection order upon a petition and affidavit for a
domestic abuse protection order was invalid because it did not
comport with applicable statutes; (3) issuance of a harassment
protection order upon a petition and affidavit for a domestic
abuse protection order, and a hearing without notice to the pro
se respondent as to the type of order being defended against,
prejudiced Rajul and violated his due process rights; (4) the
evidence did not support issuance of a domestic abuse protec-
tion order; and (5) the evidence did not support issuance of a
harassment protection order.
STANDARD OF REVIEW
[1] A 	protection 	order 	is 	analogous 	to 	an 	injunction.1
Accordingly, the grant or denial of a protection order is
reviewed de novo on the record.2
1 See Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999).
2 Id.
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[2] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision.3
ANALYSIS
juRISdICtIoN
We first address Rajul’s arguments that the district court
lacked jurisdiction because the matter was heard by a judge of
the county court, not the district court. In his first assignment
of error, Rajul asserts that the county court judge could not be
deemed “‘appointed’”4 to hear the matter by the district court
because Nuzhat failed to request a hearing before a county
court judge. Rajul asserts that such a request is required under
Neb. Rev. Stat. § 25-2740 (Reissue 2008) and that without it,
a harassment protection case must be heard in district court.
Section 25-2740(2) states:
The party shall state in the petition or complaint whether
such party requests that the proceeding be heard by a
county court judge or by a district court judge. If the party
requests the case be heard by a county court judge, the
county court judge assigned to hear cases in the county
in which the matter is filed at the time of the hearing is
deemed appointed by the district court and the consent of
the county court judge is not required.
The standard application form provided to Nuzhat did not con-
tain an option to choose between a district court judge and a
county court judge.
We find that the county court judge’s authority was not
invoked by § 25-2740. Rather, the county court judge had
authority to hear the proceedings pursuant to Neb. Rev. Stat.
§ 24-312(3) (Reissue 2008). Under that section, no formal
appointment or request is necessary. Instead, under § 24-312(3),
domestic matters are distributed between the county and dis-
trict court judges as part of an annual plan to more efficiently
administer the caseload of these courts:
3 State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).
4 Brief for appellant at 12.
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In an effort to more efficiently administer the caseload,
the presiding judges of the district court and county court
in each judicial district may assign between the courts
cases involving domestic relations matters . . . . The
presiding judges shall annually review the caseload of
the two benches and determine whether to reassign cases
involving domestic relations matters . . . . The consent of
the parties shall not be required for such cases . . . . The
annual plan on the case assignments shall be sent to the
Supreme Court . . . .
On January 5, 2009, the presiding judges of the district and
county courts of Douglas County filed a letter, pursuant to
§ 24-312(3), explaining that for the year 2009, they had agreed
to split equally all domestic and harassment protection order
cases between the two courts. It is apparent that this is the
reason Nuzhat’s petition was heard by a county court judge.
Jurisdiction under § 24-312(3) is separate from the invocation
of jurisdiction under § 25-2740, and we find no jurisdictional
defect based on the absence of a specific request in the petition
that a county court judge hear the case. Therefore, we find no
merit to Rajul’s first assignment of error.
[3] In his second assignment of error, Rajul argues that even
if the county court could hear the petition, it lacked statu-
tory authority to issue a harassment protection order, because
Nuzhat’s petition was for a domestic abuse protection order
and she never filed an amended petition for a harassment pro-
tection order. We note that there is no record of Rajul’s object-
ing to the alleged defect in the petition, but we will address the
argument to the extent that Rajul asserts that the court lacked
subject matter jurisdiction to issue the order. The issue of sub-
ject matter jurisdiction can be raised at any time.5
Rajul argues that a filing of the correct form is strictly nec-
essary under § 28-311.09(6), which states:
The clerk of the district court shall make available stan-
dard application and affidavit forms for a harassment
protection order with instructions for completion to be
5 See McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 748
N.W.2d 66 (2008).
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used by a petitioner. The clerk and his or her employees
shall not provide assistance in completing the forms. The
State Court Administrator shall adopt and promulgate the
standard application and affidavit forms provided for in
this section as well as the standard temporary and final
harassment protection order forms and provide a copy of
such forms to all clerks of the district courts in this state.
These standard temporary and final harassment protec-
tion order forms shall be the only such forms used in
this state.
Rajul also relies on subsection (1) of § 28-311.09 insofar as it
states that the judge may issue a harassment protection order
“[u]pon the filing of such a petition and affidavit . . . .”
We find no merit to Rajul’s argument that § 28-311.09 is
jurisdictional or that it changes the rules of notice pleading
generally applicable to civil actions. A similar argument was
rejected by the Washington Court of Appeals in Emmerson v.
Weilep.6 The court therein explained that although the appli-
cable statute required that the administrator for the courts
develop model forms and make such forms available, the stat-
ute did not expressly require petitioners to use those forms.
While Nebraska’s § 28-311.09(6) provides that the standard
forms shall be the only ones used, this does not mean that
without the proper standard form, the court lacks authority
to act.
Moreover, in this case, Nuzhat used a standard form—she
merely used the standard form for abuse instead of harass-
ment. Our review of the two forms reveals that they are barely
distinguishable. The differences between the two forms are
that they contain different titles, that the abuse protection form
asks for the relationship of the respondent, and that the abuse
protection form asks the petitioner to list the most recent inci-
dents of “domestic abuse,” instead of the most recent incidents
of “harassment.”
[4,5] We find that the county court judge in this case prop-
erly looked to what Nuzhat was asking for instead of simply
the title of the petition. Under the rules of notice pleading in
6 Emmerson v. Weilep, 126 Wash. App. 930, 110 P.3d 214 (2005).
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effect since 2003,7 Nebraska’s pleading practices have now
been liberalized.8 A party is only required to set forth a short
and plain statement of the claim showing that the pleader is
entitled to relief.9 Plaintiffs are not required to plead legal theo-
ries or cite appropriate statutes so long as the pleading gives
fair notice of the claims asserted.10 The rationale for this liberal
notice pleading standard is that
when a party has a valid claim, he should recover on it
regardless of [a] failure to perceive the true basis of the
claim at the pleading stage, provided always that a late
shift in the thrust of the case will not prejudice the other
party in maintaining a defense upon the merits.11
The thrust of Nuzhat’s petition was to seek a harassment
protection order. In accordance with § 28-311.09, the peti-
tion set forth the events and date of the acts constituting the
alleged harassment. Nuzhat described a history of numerous
telephone calls and letters, but she did not allege violence.
And in accordance with the statutory description of harassment
protection orders, the petition sought to enjoin the respondent
from (1) imposing any restraint upon the person or liberty of
the petitioner; (2) harassing, threatening, assaulting, molesting,
attacking, or otherwise disturbing the peace of the petitioner;
or (3) telephoning, contacting, or otherwise communicating
with the petitioner.12 This provided fair notice of the claim
asserted and was sufficient to confer authority on the court to
issue the order. Therefore, we find no merit to Rajul’s second
assignment of error. And, because Rajul neither objected to the
7 See Neb. Ct. R. Pldg. §§ 6-1101 to 6-1116.
8 See Vande Guchte v. Kort, 13 Neb. App. 875, 703 N.W.2d 611 (2005).
9 Id.
10 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008); Wynder v. McMahon, 360
F.3d 73 (2d Cir. 2004); Slaney v. The Intern. Amateur Athletic Federation,
244 F.3d 580 (7th Cir. 2001); Rymal v. Baergen, 262 Mich. App. 274,
686 N.W.2d 241 (2004); Toney v. Bouthillier, 129 Ariz. 402, 631 P.2d 557
(Ariz. App. 1981).
11 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1219 at 282-83 (3d ed. 2004).
12 See § 28-311.09(1).
396 	279 NEBRASKA REPORTS

proceedings nor was prejudiced by the notice he received, we
also reject his third assignment of error.
SuffICIeNCy of evIdeNCe
Having determined that the court had jurisdiction, we next
address the underlying merits of Rajul’s appeal. We find dis-
positive Rajul’s argument that the evidence was insufficient.
We need not address whether the facts alleged could be consid-
ered “harassment” under Neb. Rev. Stat. § 28-311.02 (Reissue
2008), but conclude simply that the proceedings were so infor-
mal that there was no evidence properly admitted for the
court’s consideration.
[6] In so holding, we are mindful of the fact that the con-
tested factual hearing in protection order proceedings is a show
cause hearing, in which the fact issues before the court are
whether the facts stated in the sworn application are true.13
Numerous cases have held that because the intrusion on the
respondent’s liberty interests is limited, the procedural due
process afforded in a harassment protection hearing is likewise
limited.14 The Nebraska Court of Appeals has explained that
protection proceedings are summary in nature and that the
court in such proceedings is justified in excluding evidence
if its probative value is substantially outweighed by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.15
[7] Nevertheless, some evidence must be presented. In
this case, the proceedings were so informal that we have
been left with no evidence at all. The record contains no
sworn testimony or exhibits. Instead, the bill of exceptions
reflects only the informal discussion of the parties at the show
cause hearing. We have said that evidence consists of facts
13 Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).
14 See, Gourley v. Gourley, 158 Wash. 2d 460, 145 P.3d 1185 (2006); H.E.S.
v. J.C.S., 175 N.J. 309, 815 A.2d 405 (2003); McKinney v. McKinney, 820
N.E.2d 682 (Ind. App. 2005); Paschal v. Hazlinsky, 803 So. 2d 413 (La.
App. 2001).
15 Zuco v. Tucker, supra note 13. See, also, Neb. Rev. Stat. § 27-403 (Reissue
2008).
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admitted at a trial to establish or disprove the truth of allega-
tions put in issue by the pleadings.16 And the allegations of
a petition require proof by evidence incorporated in the bill
of exceptions.17
[8,9] We agree with Nuzhat that a prima facie case may be
established by a form petition and affidavit. But the petition
and affidavit cannot be considered as evidence until offered and
accepted at the trial as such. The ex parte order does not relieve
the petitioner of the burden to establish by a preponderance
of the evidence the truth of the facts supporting a protection
order.18 Nuzhat’s “Petition and Affidavit” was never entered
into evidence; nor were the prior protection orders or any other
evidence. The written statement Rajul read to the court cannot
be considered evidence when he was not put under oath. While
we do not expect show cause harassment protection hearings to
reflect the full panoply of procedures common to civil trials,
we do hold that at a minimum, testimony must be under oath
and documents must be admitted into evidence before being
considered. In light of the fact that the court had no evidence
upon which it could base its findings, we find in our de novo
review that the evidence is insufficient to support the protec-
tion order.
CONCLUSION
For the foregoing reasons, we reverse, and remand with
directions to vacate the harassment protection order.
R eveRSed aNd ReMaNded WIth dIReCtIoNS.
16 Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d
439 (1998).
17 Everts v. School Dist. No. 16, 175 Neb. 310, 121 N.W.2d 487 (1963).
18 See, Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (1991);
People ex rel. Minteer v. Kozin, 297 Ill. App. 3d 1038, 697 N.E.2d 891,
232 Ill. Dec. 149 (1998).
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