S.P. v. Wells
| Decision Date | 17 November 2015 |
| Docket Number | No. A-14-917.,A-14-917. |
| Parties | S.P., APPELLEE, v. CLIFTON WELLS, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge. Appeal dismissed.
William R. Harris for appellant.
No appearance for appellee.
Clifton Wells appeals from an order of the district court for Douglas County granting S.P. a harassment protection order against him. We find that the protection order has, by its terms, expired and become moot, and therefore dismiss the appeal.
S.P. filed a "Petition and Affidavit to Obtain Harassment Protection Order" with the district court for Douglas County on August 4, 2014, naming Wells as the respondent. The affidavit sets forth that S.P. gave a statement to an investigator on July 30. S.P. then describes a meeting (no date provided) between her family and the church minister (no name was provided in the affidavit; we can only assume that Wells is the church minister because that is who S.P. named as the respondent). Upon her exit from the minister's office, S.P. states that "he grabbed my butt," and this made her "uncomfortable around him and angry that he had violated me and the Church by touching me on my body inappropriately." S.P. further indicated that she was afraid the minister would retaliate because she had given a statement to the police. An ex parte harassment protection order was signed on August 4, and file stamped on August 5; it advised that a request for hearing had to be returned to the clerk of the district court within 5 days after service. The service return indicates that Wells was personally served on August 7. Wells' request for hearing was not filed until August 13; and because the request was received after 5 days from the date of service, no hearing was scheduled. On September 8, Wells filed an affidavit indicating that (1) he was served with the petition and affidavit on August 7; (2) his mother-in-law suffered a heart attack and he had been at the hospital daily; and (3) he mistakenly thought he had until August 13 to file his request for hearing. A hearing took place on October 3; S.P. and Wells were present, along with Wells' attorney. The court first took up Wells' motion to request a hearing out of time. Although initially denying the request, after further discussion, the district court granted the request and allowed the matter to proceed to hearing on the protection order.
The court called S.P. to the stand and proceeded to question her about the petition she filed against Wells. The court asked S.P., "[D]o you stand by the statements you made in your petition that you filed." S.P. replied, "Yes." After indicating that she knew Wells because he was her evangelist pastor at the church she attended, S.P. testified as to why she sought the protection order, stating:
Because while I was at the church I felt uncomfortable being around him and the way he would look at me and provocatively and touch me, like, inappropriately. I felt uncomfortable. And when I was able to leave the church I left the church, and now that this is coming out I feel like I'm not safe and I feel uncomfortable and I would feel more -- I will feel more safe if I were to have this protection order.
The court then questioned S.P. as follows:
The court then turned the questioning over to Wells' attorney for cross-examination, who asked whether the alleged incident occurred over three years ago when S.P. was 16 years old. S.P. replied, "Between 16 and 18." When asked why she waited three years to file a protection order, S.P. replied, At that point she was interrupted by Wells' attorney and he proceeded to elicit testimony from S.P. indicating that she had not "been to church since [she] was 18, which [was] a year ago"; that Wells "touched [her] butt" when she was 18; that at every church service "we shake hands and it's, like, I would get grabbed, like, around my waist or somewhere I don't feel comfortable"; that she attended church every Sunday; that she waited until now to file the protection order "[b]ecause now that I see that he's doing it to my little cousin, I don't know who else he's done it to"; that Wells tried to add S.P. on Facebook; that Wells called S.P. within the last year (although S.P. could not remember the exact date) and that she only spoke with Wells because her mother gave her the phone.
After Wells' attorney concluded his questioning of S.P., the court asked S.P. to explain further about S.P.'s Facebook comment. S.P. claimed that Wells sent her a friend request on Facebook, but that she This occurred "a little bit before August" of 2014. The court further inquired about the phone conversation between S.P. and Wells, to which S.P. responded, "I can't quite remember the conversation because I really wasn't interested in it, honestly."
Wells then testified that he was a retired firefighter and was the presiding pastor of his church. Wells stated that he met S.P. 2½ years ago when S.P. came to church with her mother. Wells said that in July 2014, S.P.'s mother told him that S.P. said Wells had touched her. Wells told S.P.'s mother, "I wouldn't do that to your daughter," and "[t]hat was the first time I heard anything in two and a half years that I allegedly touched her." Wells further testified that he had seen S.P. only two times in the last six months, once when S.P.'s grandmother was sick at the hospital and Wells was asked to come to anoint and pray for her, and the other time was whenS.P.'s parents invited him to their house for a taco dinner. Wells claimed he did not have S.P.'s telephone number, that S.P. is "not my Facebook friend," and that he never attempted to Facebook her or anyone else.
The court then asked S.P. if she had any evidence to rebut what Wells had said; S.P. indicated she had the Facebook request. Over counsel's objection, the court allowed S.P. to show the court her phone. S.P. stated that the phone indicated that Wells sent her a friend request, and although no date was indicated, she said it was "around July and August." Wells' attorney disputed that it was a friend request, and argued that it was a suggested friend, which was due to S.P. and Wells having mutual friends. Neither the phone, nor any photos of what was viewed by the court, were offered into evidence.
A form "Harassment Protection Order" was filled out indicating that the August 4, 2014, harassment protection order would remain in effect for one year from the date of the original order. The order was signed by the court on October 3, 2014, and file stamped on October 6. Wells timely appealed from that order.
Wells assigns that the district court erred (1) by acting as an advocate for S.P.; and (2) in concluding there was sufficient evidence to enter a harassment protection order.
A protection order is analogous to an injunction; the grant or denial of a protection order is reviewed de novo on the record. Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
Mootness does not prevent appellate jurisdiction. But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, we have reviewed mootness determinations under the same standard of review as other jurisdictional questions. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009...
To continue reading
Request your trial