Cloeter v. Cloeter

BarBara a. C loeter , appellee , v.
Kurt D. C loeter , appellant.
770 N.W.2d 660
Filed June 30, 2009. 	No. A-08-1079.
1. Injunction. A protection order pursuant to Neb. Rev. Stat. § 42-924 (Reissue
2008) is analogous to an injunction.
2. Judgments: Appeal and Error. The grant or denial of a protection order is
reviewed de novo on the record.
3. ____: ____. In a de novo review, an appellate court reaches conclusions inde-
pendent 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.
4. Legislature: Words and Phrases. The Nebraska Legislature specifically limited
the definition of abuse within Neb. Rev. Stat. § 42-903(1)(b) (Reissue 2008) to
instances involving physical menace.
5. Words and Phrases. Physical menace as used in Neb. Rev. Stat. § 42-903(1)(b)
(Reissue 2008) means a physical threat or act and requires more than
mere words.
6. ____. Imminent bodily injury within the context of Neb. Rev. Stat. § 42-903(1)(b)
(Reissue 2008) means a certain, immediate, and real threat to one’s safety which
places one in immediate danger of bodily injury, that is, bodily injury is likely to
occur at any moment.
Appeal from the District Court for Lancaster County: John
a. C olBorn, Judge. Reversed and remanded with directions.
Dana M. London for appellant.
B. Gail Steen, of Steen Law Office, for appellee.
I rwIn, Carlson, and Moore, Judges.
Moore, Judge.
INTRODUCTION
Barbara A. Cloeter filed a petition for a domestic abuse
protection order against her ex-husband, Kurt D. Cloeter. The
Lancaster County District Court entered an ex parte order
granting the request. Kurt requested a hearing to show cause
why the order should not remain in effect, following which,
the court affirmed the protection order. This case was submit-
ted without oral argument pursuant to Neb. Ct. R. App. P.
§ 2-111(B)(1). For the reasons set forth herein, we reverse,
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

and remand with directions to vacate the protection order and
dismiss the action.
BACKGROUND
Barbara and Kurt are divorced and have two children: a
daughter who was born in 1990 and resides with Kurt and
a daughter who was born in 2003 and resides with Barbara.
Kurt has visitation with the younger daughter every other
weekend from 6 p.m. on Friday to 6 p.m. on Sunday and every
other Wednesday from 6 p.m. to the following Thursday morn-
ing at 8 a.m.
On July 11, 2008, Barbara filed a petition requesting a
domestic abuse protection order against Kurt and an affidavit
containing allegations supporting the request. Barbara’s affi-
davit described the three most recent incidents of domestic
abuse which occurred on June 6, 18, and 20, 2008. Barbara
alleged that on June 6 at approximately 6:45 a.m., she received
a text message from Kurt with the letters “e,” “A,” and “D.”
She sent him a text message which asked what that meant and
received no response. Barbara alleged that Kurt then began
sending one-letter text messages, and she reported this to the
police. A police officer who responded noted that when the
letters in the text messages were combined, they spelled out
the word “behead.” Barbara stated that she was very fright-
ened by this threat and was afraid Kurt would behead her or
her children.
Barbara’s affidavit alleged the second incident occurred on
June 18, 2008, at about 6:15 p.m. Kurt arrived at her home
to take the younger daughter for visitation and sent Barbara a
text message with the letters “B” and “e.” She stated that on
June 11, Kurt sent her the text messages which spelled out the
word “behead” and she notified the police and understood that
the police contacted Kurt regarding the message. It is unclear
from the record whether the June 11 incident was the same
or a different incident from that which Barbara described as
occurring on June 6. Barbara stated again that she feared he
would attempt to behead her or her daughter. Barbara also
stated that she was concerned that Kurt had abused animals in
the younger daughter’s presence during visitation and that this
was harmful to her.
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The final incident that Barbara described in her affidavit
occurred on June 20, 2008. She stated that she found a 2- by
4-inch piece of wood (2 by 4) in her driveway. This was sig-
nificant to her because previously, when she expressed to Kurt
her fear that he would hurt her with a baseball bat, he allegedly
responded: “‘Why would I buy baseball bats when I could do
the same with a 2 [by] 4?’” Barbara stated that Kurt had been
released from jail the day before she found the 2 by 4 in her
driveway and that therefore she viewed this as a threat.
The district court entered an ex parte domestic abuse protec-
tion order. The court found that Barbara had stated facts show-
ing that Kurt attempted to cause, or intentionally, knowingly,
or recklessly caused, bodily injury to Barbara, or by physical
menace, placed Barbara in fear of imminent bodily injury. The
order excluded Kurt from Barbara’s residence, the hospital
where Barbara worked, and a specific church. On July 11,
2008, Kurt was served with a copy of the protection order, and
on July 14, he requested a hearing to show cause why the order
should not remain in effect.
On September 12, 2008, the district court entered an amended
domestic abuse protection order which allowed Kurt to be
present at the younger daughter’s school for school purposes
and the hospital where Barbara worked to attend any medical
appointments or treatments of the children.
On September 22, 2008, the district court held a hearing at
Kurt’s request allowing him to show cause why the protection
order should not remain in effect. Both Kurt and Barbara testi-
fied at the hearing.
Kurt testified that during the past year when he had visi-
tation with the younger daughter, he would normally pick her
up at Barbara’s home and would communicate that he had
arrived by sending Barbara a text message. Kurt testified that
to send Barbara a text message, he would usually select her
telephone number and then “hit a couple letters or something.”
Kurt testified that he was “not an avid text messager,” so his
text messages had no words in them, “just randomly selected
letters.” Kurt testified that he never intended to send Barbara
a text message, either at one time or in a series over a period
of time, which would spell out the word “behead.” With regard
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to the text message Barbara alleged she received from him on
June 6, 2008, Kurt testified that there was no significance to
the letters “e,” “A,” and “D,” that he would have no reason to
send her a text message at 6:45 a.m., that normally he would
only send Barbara a text message right before he picked up his
younger daughter, and that he would not have picked her up on
that date at that time. With regard to the 2 by 4 that Barbara
found in her driveway on June 20, Kurt offered into evidence
four photographs, taken by the older daughter. Those photo-
graphs depict Barbara’s home, as well as the home directly
across the street from hers, which was undergoing construc-
tion and demolition work. Kurt testified that he did not place
the 2 by 4 in Barbara’s driveway, did not have anything to do
with a 2 by 4’s being placed in her driveway, and believed
that it could have come from the demolition project across
the street. Kurt also denied killing animals in front of the
younger daughter.
Barbara also testified at the hearing. She testified that she
received Kurt’s comment, “why would I use baseball bats
when I could do the same thing with a [2 by 4],” in an e-mail
approximately 2 years earlier. She could not recall what the
rest of the e-mail said. Barbara also testified that the house
across the street from her had been in that condition for more
than a year and that there had been no other incidents in which
a 2 by 4 or other spare building materials appeared in her
driveway. According to Barbara, the 2 by 4 appeared in her
driveway the day after Kurt was released from jail for violating
a previous protection order against him. However, she did not
see anyone put the 2 by 4 in her driveway. Barbara also testi-
fied that Child Protective Services was still investigating her
allegation that Kurt killed animals in the younger daughter’s
presence and that she was still concerned for her and her
children’s safety. With regard to the text messages Kurt would
send to her when he arrived to pick up the younger daughter,
Barbara testified that he had previously sent a text message
with the letter “A,” and she did not remember him ever send-
ing a text message with any other letter. On cross-examination,
Kurt’s attorney asked Barbara, “[I]s it correct that you didn’t
know if those text messages even spelled out the word ‘behead’
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until [a police] officer brought it to your attention?” Barbara
responded, “I wasn’t sure what he was trying to say.” Barbara
was also not sure whether the days on which those text mes-
sages were sent were the same days as Kurt had scheduled visi-
tation with Rachel, but she acknowledged that if she received
the messages on an alternating Friday or Wednesday, it would
have been on the day of his visitation.
On September 22, 2008, the court entered an order which
affirmed the domestic abuse protection order as amended on
September 12. The district court made no specific factual find-
ings, but concluded that Barbara had shown that Kurt “(1)
attempted to cause, or intentionally, knowingly, or recklessly
caused, bodily injury to [Barbara], or (2) by physical men-
ace, placed [Barbara] in fear of imminent bodily injury.” Kurt
now appeals.
ASSIGNMeNT OF eRROR
Kurt asserts, restated, that the trial court erred in affirming
the domestic abuse protection order based on the evidence
adduced at the hearing.
STANDARD OF ReVIeW
[1-3] A protection order pursuant to Neb. Rev. Stat. § 42-924
(Reissue 2008) is analogous to an injunction. Elstun v. Elstun,
257 Neb. 820, 600 N.W.2d 835 (1999). Accordingly, the grant
or denial of a protection order is reviewed de novo on the
record. Id. In such de novo review, an appellate court reaches
conclusions independent of the factual findings of the trial
court. Id. 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. Id.
ANALYSIS
The Protection from Domestic Abuse Act, Neb. Rev. Stat.
§ 42-901 et seq. (Reissue 2008), allows any victim of domes-
tic abuse to file a petition and affidavit for a protection order
pursuant to § 42-924. Abuse is defined under § 42-903(1)
as follows:
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the occurrence of one or more of the following acts
between household members:
(a) Attempting to cause or intentionally and know-
ingly causing bodily injury with or without a dangerous
instrument;
(b) Placing, by physical menace, another person in fear
of imminent bodily injury; or
(c) engaging in sexual contact or sexual penetration
without consent as defined in section 28-318.
The act defines “household member” to include a former
spouse. § 42-903(3).
In the present case, the district court’s form order states
that Barbara showed that Kurt “(1) attempted to cause, or
intentionally, knowingly, or recklessly caused, bodily injury to
[Barbara], or (2) by physical menace, placed [Barbara] in fear
of imminent bodily injury.” However, Barbara did not allege,
nor does the record show, that Kurt had caused her bodily
injury. Accordingly, we limit our consideration to whether
Barbara has shown that Kurt, by physical menace, placed her in
fear of imminent bodily injury as required by §§ 42-903(1)(b)
and 42-924. Kurt argues that there is no credible evidence
that he engaged in any conduct constituting abuse as defined
in § 42-903. He submits that even if Barbara’s allegations are
assumed to be true, the alleged conduct does not rise to the
level of abuse within the meaning of the statute.
The terms “physical menace” and “imminent” as used
in § 42-903(1)(b) are not defined within the statute. Two
other Nebraska statutes contain the same terms as § 42-903:
Neb. Rev. Stat. § 28-323(1)(b) (Reissue 2008), which pro-
scribes third degree domestic assault, and Neb. Rev. Stat.
§ 29-404.02(1)(c)(ii) (Reissue 2008), which sets forth the
instances in which a police officer may make a warrantless
arrest; however, our research reveals no Nebraska case law
construing the term “physical menace.”
[4,5] Case law construing “menace” is most common in the
context of an assault cause of action. Kurt points to a Nebraska
Supreme Court decision in which the court held that the term
“menacing,” as used in Neb. Rev. Stat. § 28-310 (Reissue 2008),
which proscribes third degree assault, “commonly includes
746 	17 NeBRASKA APPeLLATe RePORTS

the showing of an intention to do harm.” In re Interest of
Siebert, 223 Neb. 454, 456, 390 N.W.2d 522, 524 (1986) (cit-
ing Webster’s Third New International Dictionary, Unabridged
1409 (1981)). See State v. Smith, 267 Neb. 917, 678 N.W.2d
733 (2004). Webster’s Third New International Dictionary,
Unabridged, supra, defines “menace” as “to make a show
of intention to harm: make a threatening gesture, statement,
or act against.” In its noun form, the word “menace” gener-
ally means a threat. See Webster’s encyclopedic Unabridged
Dictionary of the english Language 894 (1983) (“something
that threatens to cause evil, harm, injury, etc.”); American
Heritage Dictionary of the english Language, 4th ed. 1096
(2000) (“[t]he act of threatening”). However, in § 42-903(1)(b)
the Nebraska Legislature specifically limited the definition of
abuse to instances involving “physical menace.” Other courts
that have construed “physical menace” in the context of stat-
utes proscribing assault have determined that the term neces-
sarily requires more than words, that is, there must be some
physical act on the part of the defendant. See, People ex rel.
R.L.G., 707 N.W.2d 258 (S.D. 2005); People v. Sylla, 7 Misc.
3d 8, 792 N.Y.S.2d 764 (2005); McDonald v. State, 784 So. 2d
261 (Miss. App. 2001) (Southwick, Presiding Judge, concur-
ring; McMillin, Chief Judge, and Thomas, Judge, join). We
agree and therefore conclude that “physical menace” as used
in § 42-903(1)(b) means a physical threat or act and requires
more than mere words.
[6] The facts presented here also require us to construe the
word “imminent,” which neither § 42-903(1)(b) nor Nebraska
case law defines. Black’s Law Dictionary defines “imminent
danger” as “an immediate, real threat to one’s safety that justi-
fies the use of force in self-defense” or “[t]he danger result-
ing from an immediate threatened injury sufficient to cause a
reasonable and prudent person to defend himself or herself.”
Black’s Law Dictionary 421 (8th ed. 2004). See, also, Loyd
v. Moore, 390 S.W.2d 951, 955 (Mo. App. 1965) (“imminent
peril” as used in humanitarian doctrine requires peril to be
“imminent, that is to say, certain, immediate and impending.
A likelihood or a bare possibility of injury is not sufficient to
create imminent peril”); Webster’s encyclopedic Unabridged
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Dictionary of the english Language, supra at 712 (“likely to
occur at any moment”). We conclude that “imminent” bodily
injury within the context of § 42-903(1)(b) means a certain,
immediate, and real threat to one’s safety which places one
in immediate danger of bodily injury, that is, bodily injury is
likely to occur at any moment.
We now turn to the facts to determine whether Barbara suf-
fered abuse within the meaning of § 42-903(1)(b), specifically
whether Kurt, by physical menace, placed Barbara in fear
of imminent bodily injury. Barbara alleges several incidents
in which Kurt sent her text messages containing letters that
combine to form the word “behead.” However, these text mes-
sages cannot be construed to be within the meaning of physical
menace, as words alone are not a physical threat or act within
the purview of the statute. Therefore, the text messages are not
instances of abuse which could sustain the entry of a domes-
tic abuse protection order within the meaning of §§ 42-903
and 42-924.
Barbara also alleges that Kurt placed a 2 by 4 in her drive-
way to threaten her. We assume without deciding that such
allegation satisfies the meaning of “physical menace” within
§ 42-903(1)(b). However, even if we allow Barbara the benefit
of that assumption, the record does not support a conclusion
that, as a result of this incident, Barbara was placed in fear
of imminent bodily injury. Barbara testified that the comment
Kurt made regarding a 2 by 4 occurred 2 years prior to the
incident and that she did not see anyone place the 2 by 4 in
her driveway. Kurt denied placing the 2 by 4 or having any-
thing to do with its appearance in Barbara’s driveway. There is
no evidence that Kurt was on or near the premises at the time
Barbara noticed the 2 by 4; therefore, we cannot conclude that
Barbara was placed in fear of an immediate, real threat to her
safety which placed her in immediate danger of bodily injury,
because bodily injury was not likely to occur at any moment.
Barbara testified that she viewed this incident as a threat, but
there is no evidence to support that either Kurt or the 2 by 4
was an immediate, real threat to Barbara’s safety which placed
her in immediate danger of bodily injury. As such, this inci-
dent is not an instance of abuse which could sustain the entry
748 	17 NeBRASKA APPeLLATe RePORTS

of a domestic abuse protection order within the meaning of
§§ 42-903 and 42-924.
With regard to the allegations regarding animal abuse, we
likewise conclude that the record is insufficient to support that
this is an instance of abuse.
We note that in 1998, the Legislature enacted 1998 Neb.
Laws, L.B. 218, which created a cause of action for a harass-
ment protection order pursuant to Neb. Rev. Stat. § 28-311.09
(Cum. Supp. 1998) separate from a cause of action for a domes-
tic abuse protection order pursuant to § 42-924 (Reissue 1998).
Prior to the enactment of L.B. 218, §§ 42-903 and 42-924
included language which provided a means by which a victim
of stalking, harassment, or domestic abuse could file a peti-
tion for a protection order. See, § 42-903 (Cum. Supp. 1996);
§ 42-924 (Supp. 1997). L.B. 218 essentially transferred the lan-
guage relating to stalking and harassment from §§ 42-903 and
42-924 to §§ 28-311.02 and 28-311.09. See, § 42-903 (Reissue
1998); § 42-924 (Reissue 1998); § 28-311.02 (Cum. Supp.
1998); § 28-311.09 (Cum. Supp. 1998). Some states’ statutes
which provide a cause of action for obtaining a protection
order include more expansive language similar to that which
was contained in §§ 42-903 and 42-924 prior to L.B. 218. See,
750 Ill. Comp. Stat. Ann. 60/203(a) (LexisNexis 2009) (peti-
tion for order of protection shall allege that petitioner has been
abused by respondent); 750 Ill. Comp. Stat. Ann. 60/103(1)
(LexisNexis 2009) (“[a]buse” means physical abuse, harass-
ment, intimidation of dependent, interference with personal lib-
erty or willful deprivation). We note that under § 28-311.09(1)
(Reissue 2008) (formerly § 42-924(1)), a victim who has
been harassed as defined by § 28-311.02 (Reissue 2008), may
seek a harassment protection order. Section 28-311.02 defines
“harass” as “to engage in a knowing and willful course of
conduct directed at a specific person which seriously terrifies,
threatens, or intimidates the person and which serves no legiti-
mate purpose.” We do not speculate, however, as to the result
in the instant case if Barbara had pursued a harassment protec-
tion order pursuant to § 28-311.09 instead of a domestic abuse
protection order pursuant to § 42-924 (Reissue 2008). Rather,
we point out this legislative history only to indicate that we are
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bound by the language contained in the specific statutes under
which Barbara sought a protection order.
In our de novo review, we find that the facts Barbara alleged
in the present case do not constitute abuse within the con-
templation of § 42-903 (Reissue 2008). As such, the record
does not support the district court’s entry of a protection
order pursuant to § 42-924. Accordingly, we conclude that the
district court’s order affirming the domestic abuse protection
order should be reversed, and we direct the district court to
enter an order dismissing the domestic abuse protection order
against Kurt.
CONCLUSION
For the aforementioned reasons, we reverse, and remand
with directions to vacate the protection order against Kurt and
dismiss the action.
reverseD anD reManDeD wIth DIreCtIons.
Joshua M. Jones , appellant, v.
JIllIan Z. BelguM, appellee .
770 N.W.2d 667
Filed June 30, 2009. 	No. A-09-200.
1. Child Support: Rules of the Supreme Court: Records: Appeal and Error.
The record on appeal from an order imposing or modifying child support shall
include any applicable Nebraska Child Support Guidelines worksheets with the
trial court’s order. Failure to include such worksheets in the record will result in
summary remand of the trial court’s order.
2. Jurisdiction: Appeal and Error. After an appeal to an appellate court has been
perfected in a civil case, a lower court is without jurisdiction to hear a case
involving the same matter between the same parties.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
roBert r. otte, Judge. Motion overruled, and cause remanded
with direction.
Kelly T. Shattuck, of Vacanti Shattuck, for appellant.
No appearance for appellee.
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