## Facts

- Barbara A. Cloeter and Kurt D. Cloeter are divorced and share two daughters; the younger child lived with Barbara.
- Barbara sought a domestic abuse protection order based on incidents in June 2008.
- Barbara received a series of one-letter text messages from Kurt that, when combined, appeared to spell “behead,” and she interpreted them as threats to behead her or her children.
- Near a visitation exchange, Kurt sent additional text letters (“B” and “E”), which Barbara connected to the earlier messages and again viewed as threatening.
- After Kurt’s release from jail on an unrelated matter, Barbara found a 2-by-4 board in her driveway; she associated it with an earlier remark by Kurt about beating her with a 2-by-4 and viewed the board as a threat.
- Barbara also expressed concern that Kurt abused animals in the younger child’s presence during visitation.
- At the show-cause hearing, Kurt denied intending to threaten Barbara with texts, claiming unfamiliarity with texting and stating he sent random letters to signal his arrival.
- Kurt denied placing the 2-by-4 and pointed to nearby construction as an alternative explanation for its presence.
- The district court found Barbara’s fear credible and continued the protection order (with limited modifications); Kurt appealed.

## Issues

1. Whether the evidence established “abuse” under Nebraska’s Protection from Domestic Abuse Act by showing a “physical menace” that placed Barbara in fear of imminent bodily injury.
2. Whether written communications (text messages) and ambiguous circumstances (an unexplained 2-by-4) can satisfy the statutory requirement of a physical menace and imminence.

## Decision

- The Nebraska Court of Appeals reversed the order continuing the domestic abuse protection order.
- The case was remanded with directions to vacate the protection order and dismiss the action.
- The court held the evidence did not show a physical menace placing Barbara in fear of imminent bodily injury as required by the statute.

## Legal Principles

- For a domestic abuse protection order based on fear, the conduct must constitute a “physical menace,” meaning a physical act or physically manifested threat; words alone, including written or electronic messages, are insufficient without a physical component.
- The fear must be of imminent bodily injury; speculative, ambiguous, or temporally attenuated circumstances do not satisfy the imminence requirement.
- Appellate review is de novo on the record with deference to credibility findings, but an order cannot stand when the proven conduct fails to meet the statutory definition of abuse.

## Conclusion

The court required proof of a physically manifested, imminent threat to sustain a domestic abuse protection order and concluded that frightening text messages and an unexplained 2-by-4 in a driveway, without an accompanying physical act creating an immediate risk of harm, did not meet that standard.


Cloeter v. Cloeter, 770 N.W.2d 660 (Neb. Ct. App. 2009)