Dean D. v. Rachel S. , 26 Neb. Ct. App. 678 ( 2018 )

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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678Dean D. and Michelle D., appellants,
v. R achel S., appellee.
___ N.W.2d ___
Filed December 18, 2018. No. A-17-1260.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s grant of a motion to dismiss de novo, accepting
all the allegations in the complaint as true and drawing all reasonable
inferences in favor of the nonmoving party.
2. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, an appellate court reviews mootness determinations under
the same standard of review as other jurisdictional questions.
3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, its determination is a matter
of law, which requires an appellate court to reach a conclusion indepen-
dent of the decisions made by the lower courts.
4. Parties: Standing: Jurisdiction. A party must have standing before a
court can exercise jurisdiction, and either a party or the court can raise a
question of standing at any time during the proceeding.
5. Standing. Under the doctrine of standing, a court may decline to deter-
mine merits of a legal claim because the party advancing it is not prop-
erly situated to be entitled to its judicial determination. The focus is on
the party, not the claim itself.
6. Standing: Jurisdiction. Standing requires that a litigant have such a
personal stake in the outcome of a controversy as to warrant invocation
of a court’s jurisdiction and justify exercise of the court’s remedial pow-
ers on the litigant’s behalf.
7. Standing: Words and Phrases. Standing is the legal or equitable right,
title, or interest in the subject matter of the controversy which entitles a
party to invoke the jurisdiction of the court.
8. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 6789. Moot Question: Words and Phrases. A case becomes moot when
the issues initially presented in the litigation cease to exist, when the
litigants lack a legally cognizable interest in the outcome of litiga-
tion, or when the litigants seek to determine a question which does not
rest upon existing facts or rights, in which the issues presented are no
­longer alive.
Appeal from the District Court for Gage County: R icky A.
Schreiner, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Benjamin H. Murray, of Germer, Murray & Johnson, for
appellants.
Dustin A. Garrison, of Garrison Law Firm, and Lyle J.
Koenig, of Koenig Law Firm, for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
Bishop, Judge.
INTRODUCTION
Dean D. and Michelle D. filed an action in the district court
for Gage County seeking grandparent visitation with their
grandson, Tayvin D. It is undisputed by the parties that sub-
sequent to Dean and Michelle’s filing, their son relinquished
his parental rights to Tayvin and Tayvin was later adopted by
his stepfather. After the adoption, Tayvin’s mother moved to
dismiss Dean and Michelle’s action for grandparent visita-
tion based on standing and mootness principles. Although
the district court concluded that Dean and Michelle still had
standing, it granted the motion to dismiss because it found
that the case had become moot. Dean and Michelle appeal.
We affirm in part, and in part reverse and remand for further
proceedings.
BACKGROUND
Rachel S. and Taylor D. are the biological parents of
Tayvin, born in 2009. Rachel and Taylor divorced in 2013;
Rachel subsequently remarried.
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678On October 17, 2016, Dean and Michelle, who are Taylor’s
parents, filed an action in the district court seeking grandparent
visitation with Tayvin pursuant to Neb. Rev. Stat. § 43-1802(Reissue 2016). Dean and Michelle acknowledged that Rachel
had legal and physical custody of Tayvin. In support of their
request for grandparent visitation, Dean and Michelle alleged
(1) they had retained significant contact with Tayvin since his
birth, including personal contact at least once every month,
overnight visitation during some of the months, and extended
visitation time of 1 to 2 weeks every summer; (2) they had
provided financial support to Tayvin; and (3) they had an
existing “close . . . significant beneficial relationship” with
Tayvin, which was in his best interests to maintain. Dean and
Michelle requested visitation consisting of one weekend per
month, weekly contact for a specified time period, alternat-
ing holiday visitation, and 2 weeks of summer visitation. An
“Amended Application for Grandparent Visitation” was filed in
January 2017; it added information about Rachel and Taylor’s
divorce in February 2013 and sought less visitation time than
initially requested.
Rachel answered Dean and Michelle’s amended application
in February 2017. In August, she filed a motion to dismiss
the action, stating that Taylor relinquished his parental rights
to Tayvin and that her current husband had adopted Tayvin
pursuant to a decree of adoption entered by the county court
for Gage County. As a result, Rachel claimed that Dean and
Michelle’s action was “moot” and that Dean and Michelle “no
longer possess standing to request grandparent visitation with
Tayvin.” A copy of the decree of adoption was attached to
and incorporated into the motion to dismiss. In the decree of
adoption, the county court made findings, among other things,
that (1) Taylor abandoned Tayvin for at least 6 months before
the adoption petition was filed, (2) all consents or substitute
consents required by law were properly executed and filed, (3)
Tayvin resided with Rachel and her current husband for at least
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Cite as 26 Neb. App. 6786 months prior to the adoption’s filing, and (4) it was in the
best interests of Tayvin that the decree of adoption be entered
as requested.
Following a hearing on Rachel’s motion to dismiss Dean
and Michelle’s action, the district court entered an order on
November 13, 2017, finding that Dean and Michelle had stand-
ing to seek grandparent visitation at the time their applica-
tion was filed. However, the court pointed out that Dean and
Michelle “admit that on or about August 10, 2017, [their son]
relinquished parental rights to Tayvin . . . , who was subse-
quently adopted by [Rachel’s husband].” Therefore, the court
concluded that Dean and Michelle no longer had a legally cog-
nizable interest in the outcome of the litigation, and as such,
the matter was moot and their application had to be dismissed.
Dean and Michelle timely appealed.
ASSIGNMENT OF ERROR
Dean and Michelle claim the district court erred in finding
that their application for grandparent visitation was moot and
granting Rachel’s motion to dismiss.
STANDARD OF REVIEW
[1] An appellate court reviews a district court’s grant of
a motion to dismiss de novo, accepting all the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. McCully, Inc. v. Baccaro Ranch,
279 Neb. 443, 778 N.W.2d 115 (2010).
[2,3] Because mootness is a justiciability doctrine that oper-
ates to prevent courts from exercising jurisdiction, an appellate
court reviews mootness determinations under the same stan-
dard of review as other jurisdictional questions. Kuhn v. Wells
Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
When a jurisdictional question does not involve a factual dis-
pute, its determination is a matter of law, which requires an
appellate court to reach a conclusion independent of the deci-
sions made by the lower courts. Id.- 682 -
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678ANALYSIS
Dean and Michelle argue the district court erred in finding
their application for grandparent visitation was moot. They
claim that the time at which they first sought grandparent
visitation is controlling and that the district court found Dean
and Michelle had standing to seek grandparent visitation under
§ 43-1802(1)(b) given the facts that existed at the time the
application was filed. In response, Rachel argues that Dean and
Michelle “confuse standing with the larger issue of justiciabil-
ity” and that “mootness governs the action after the filing but
before an order is entered.” Brief for appellee at 2-3. Because
standing is a jurisdictional issue, we address that first, followed
by a discussion on mootness.
Standing
[4-6] A party must have standing before a court can exercise
jurisdiction, and either a party or the court can raise a question
of standing at any time during the proceeding. Frenchman-
Cambridge Irr. Dist. v. Dept. of Nat. Res., 281 Neb. 992, 801
N.W.2d 253 (2011). Under the doctrine of standing, a court
may decline to determine merits of a legal claim because the
party advancing it is not properly situated to be entitled to its
judicial determination. The focus is on the party, not the claim
itself. Id. And standing requires that a litigant have such a
personal stake in the outcome of a controversy as to warrant
invocation of a court’s jurisdiction and justify exercise of the
court’s remedial powers on the litigant’s behalf. Id.In Nebraska, grandparent visitation is a creature of stat-
ute. Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999). See,
generally, Neb. Rev. Stat. §§ 43-1801 to 43-1803 (Reissue
2016) (Nebraska’s grandparent visitation statutes). In Pier,
the Nebraska Supreme Court said that “we must look to those
statutes to determine the visitation rights of natural grand-
parents following an adoption of the child,” when analyzing
a grandparent visitation issue. Pier, 257 Neb. at 127, 596
N.W.2d at 6.
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678Therefore, we first review the pertinent grandparent visita-
tion statutes. The definition of a grandparent under § 43-1801
states:
As used in sections 43-1801 to 43-1803, unless the
context otherwise requires, grandparent shall mean the
biological or adoptive parent of a minor child’s bio-
logical or adoptive parent. Such term shall not include
a biological or adoptive parent of any minor child’s
biological or adoptive parent whose parental rights have
been terminated.
Section 43-1802(1) then lists the specific conditions which
must exist in order for a grandparent to seek visitation:
A grandparent may seek visitation with his or her minor
grandchild if:
(a) The child’s parent or parents are deceased;
(b) The marriage of the child’s parents has been dis-
solved or petition for the dissolution of such marriage
has been filed, is still pending, but no decree has been
entered; or
(c) The parents of the minor child have never been
married but paternity has been legally established.
In Pier, the Nebraska Supreme Court found that “[the grand-
parents’] standing was predicated upon their satisfying the
statutory definition of ‘grandparent’” at the time they filed
their action for grandparent visitation. 257 Neb. at 127, 596
N.W.2d at 6.
Accordingly, the district court was correct in determin-
ing that Dean and Michelle had standing to seek grandparent
visitation at the commencement of the case. At that time, under
§ 43-1801, Dean and Michelle met the definition of grandpar-
ents, because they are the biological parents of Taylor, who is
Tayvin’s biological father, and because Taylor’s parental rights
were still intact. Also, they were allowed to seek visitation
based on § 43-1802(1)(b), because the marriage of Rachel and
Taylor had been dissolved by a decree of dissolution.
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678[7] Rachel’s motion to dismiss alleged in part that Dean
and Michelle “no longer possess standing to request grandpar-
ent visitation” with Tayvin. (Emphasis supplied.) However,
in Myers v. Nebraska Invest. Council, 272 Neb. 669, 724
N.W.2d 776 (2006), the Nebraska Supreme Court rejected
the notion that a party can “lose” standing. In that case, the
Nebraska Supreme Court defined standing as “the legal or
equitable right, title, or interest in the subject matter of the
controversy, which entitles a party to invoke the jurisdiction
of the court.” Myers, 272 Neb. at 680, 724 N.W.2d at 791. The
court said:
It is true that the “personal interest that must exist at
the commencement of the litigation (standing) must con-
tinue throughout its existence (mootness).” See United
States Parole Comm’n v. Geraghty, 445 U.S. 388, 397,
100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980) (quoted in
Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d
511 (1989)). Further, the U.S. Supreme Court has held
that a plaintiff bears the burden of establishing standing
and that a defendant may “point out a pre-existing stand-
ing defect late in the day.” (Emphasis supplied.) Lujan v.
Defenders of Wildlife, 504 U.S. 555, 570 n.4, 112 S. Ct.
2130, 119 L. Ed. 2d 351 (1992). Yet, in the same case,
the Court stated that jurisdiction, including standing, “is
to be assessed under the facts existing when the com-
plaint is filed.” Id. The timing requirement is important
because the plaintiff’s personal interest “is to be assessed
under the rubric of standing at the commencement of the
case, and under the rubric of mootness thereafter.” Becker
v. Federal Election Com’n, 230 F.3d 381, 386 n.3 (1st
Cir. 2000).
Myers, 272 Neb. at 682-83, 724 N.W.2d at 792. See, also,
Muzzey v. Ragone, 20 Neb. App. 669, 831 N.W.2d 38 (2013)
(differentiating standing and mootness in grandparent visita-
tion case).
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DEAN D. v. RACHEL S.
Cite as 26 Neb. App. 678We conclude, as did the district court, that standing was
properly established when Dean and Michelle filed their appli-
cation seeking grandparent visitation. As noted above, stand-
ing is to be assessed under the facts existing when an action
is commenced. We affirm the portion of the district court’s
order concluding that Dean and Michelle had standing to
seek grandparent visitation. However, the district court then
concluded that Dean and Michelle’s action became moot
when Taylor relinquished his parental rights; we address that
issue next.
Mootness
[8,9] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the
resolution of the dispute that existed at the beginning of the
litigation. Wetovick v. County of Nance, 279 Neb. 773, 782
N.W.2d 298 (2010). A case becomes moot when the issues
initially presented in the litigation cease to exist, when the
litigants lack a legally cognizable interest in the outcome of
litigation, or when the litigants seek to determine a question
which does not rest upon existing facts or rights, in which the
issues presented are no longer alive. Kuhn v. Wells Fargo Bank
of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
Dean and Michelle’s application for grandparent visitation
was pending in the district court when Taylor relinquished his
parental rights to Tayvin and Tayvin was legally adopted by
his stepfather. The district court found that as a result of these
facts, Dean and Michelle’s application was moot.
The district court stated:
As used in sections 43-1801 to 43-1803, unless the
context otherwise requires, grandparent shall mean the
biological or adoptive parent of a minor child’s biological
or adoptive parent. Such term shall not include a biologi-
cal or adoptive parent of any minor child’s biological or
adoptive parent whose parental rights have been termi-
nated. Neb. Rev. Stat. § 43-1801.
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DEAN D. v. RACHEL S.
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Pursuant to the grandparent visitation statutes, a grand-
parent’s ability to seek visitation in the first instance is
premised upon the relationship between the grandchild
and his or her parent; once the parental relationship is
terminated, the statutory basis on which a grandparent can
seek visitation is likewise extinguished. Pier v. Bolles,
257 Neb. 120[, 596 N.W.2d 1] (1999).
When Taylor . . . relinquished his parental rights to
[the stepfather] terminating the parental relationship, the
statutory basis upon which Dean and Michelle . . . could
seek visitation was also extinguished. Because the statu-
tory basis upon which [Dean and Michelle] could seek
visitation has been extinguished they lack a legally cog-
nizable interest in the outcome of litigation and they seek
to determine a question which does not rest upon existing
facts or rights. Therefore the matter is moot and their
application must be dismissed.
Although the district court cites to Pier v. Bolles, 257 Neb.
120, 596 N.W.2d 1 (1999), to determine Dean and Michelle’s
action was moot, we view Pier as being instructive on issues
of grandparent standing in light of a parental relinquishment
and stepparent adoption. It also addresses a request to modify a
grandparent visitation order. In Pier, the biological parents had
one child during their marriage, but later divorced. Pursuant
to their 1992 divorce decree, the mother was awarded cus-
tody of the minor child and the paternal grandparents were
granted grandparent visitation. The mother later terminated the
grandparents’ visitation, evidently due to conditions under the
decree allowing her to do so. The grandparents then initiated
a new action in 1994 to establish grandparent visitation with
their grandson, which the district court awarded in May 1995.
In October, the father voluntarily relinquished his parental
rights to the minor child and consented to the child’s adoption
by the mother’s current husband; the child was subsequently
adopted by his stepfather. In June 1997, the mother moved to
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Cite as 26 Neb. App. 678modify the May 1995 grandparent visitation order, seeking to
terminate the grandparents’ visitation due to their son’s relin-
quishment of his parental rights and the subsequent stepparent
adoption. The district court determined the grandparent visita-
tion did not automatically terminate because of the adoption of
the child by the stepfather, and the district court further found
it was in the child’s best interests to maintain the grandparent
visitation rights. The district court denied the mother’s petition
for modification, and she appealed.
The Nebraska Supreme Court held the trial court correctly
concluded that the grandparent visitation previously granted
was not automatically terminated by the biological father’s
voluntary relinquishment of parental rights and the child’s
subsequent adoption by his stepfather; it affirmed as a matter
of law that portion of the trial court’s order. Pier stated that
the grandparents’ standing was predicated upon their satisfying
the statutory definition of a grandparent at the time they filed
their 1994 action and that subsequent to the 1995 visitation
order, the father voluntarily relinquished his parental rights.
The court said:
There is no question that under the grandparent visita-
tion statutes, if [the biological father] had terminated his
parental rights and [the child] had been adopted by his
stepfather prior to [the grandparents’] seeking grandparent
visitation, [the grandparents] would have had no standing
under the statutes to seek such visitation. Pursuant to the
grandparent visitation statutes, a grandparent’s ability to
seek visitation in the first instance is premised upon the
relationship between the grandchild and his or her parent.
Once the parental relationship is terminated, the statutory
basis on which a grandparent can seek visitation is like-
wise extinguished. . . .
. . . Unlike the provisions relative to grandparents
seeking visitation in the first instance, nothing contained
within the modification provisions of the grandparent
visitation statutes makes the modification of previously
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Cite as 26 Neb. App. 678ordered grandparent visitation dependent upon the par-
ent’s continued parental relationship with the child. .
. . [W]e determine that . . . the Legislature intended that
grandparent visitation granted under these statutes not be
interrupted by the adoption statutes. . . . Thus, following
the adoption of the child, if the evidence shows that there
has been a material change in circumstances justifying
a change and the best interests of the child would be
served, previously granted grandparent visitation can be
modified, up to and including termination of grandpar-
ent visitation.
Pier v. Bolles, 257 Neb. 120, 127-28, 596 N.W.2d 1, 6-7
(1999). Although the Supreme Court agreed with the trial court
that the grandparent visitation did not automatically terminate
upon the adoption of the child by the stepparent, it also con-
cluded that because of the “scant record of evidence regarding
the child’s best interests,” the trial court abused its discretion
in finding that continued grandparent visitation was in the best
interests of the child. Id. at 130, 596 N.W.2d at 8.
Pier informs us that if an order for grandparent visitation
has already been entered, a subsequent parental relinquishment
and stepparent adoption does not automatically terminate the
grandparent visitation. However, a modification action can
be brought, and if the best interests of the child are not suf-
ficiently proved, then grandparent visitation can be terminated.
Pier also instructs that if a biological parent relinquishes his
or her parental rights before a grandparent seeks visitation, the
grandparent would have no standing to bring an action under
the grandparent visitation statutes.
As we already discussed earlier, because Taylor had not yet
relinquished his parental rights before Dean and Michelle filed
their action, they had standing to seek grandparent visitation.
And although Dean and Michelle did not yet have an order
granting them visitation rights before Taylor relinquished his
parental rights (like the grandparents in Pier), that does not
change the fact that they had standing when they filed their
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Cite as 26 Neb. App. 678action. Nothing in Pier suggests that Dean and Michelle would
lose standing to pursue their action because of Taylor’s sub-
sequent voluntary parental relinquishment; rather, it clearly
holds that grandparent standing is determined at the time a
grandparent files an action seeking visitation.
However, the district court also referenced Muzzey v. Ragone,
20 Neb. App. 669, 831 N.W.2d 38 (2013), when dismissing the
action on the basis of mootness. While it is true this court
concluded the grandparents’ action in that case was moot, its
facts are distinguishable from the present case. In Muzzey, the
biological parents were not married at the time their minor
child was born in 2009. In January 2011, paternity was estab-
lished, and a couple months later, the maternal grandparents
filed a motion for grandparent visitation. In July, the biologi-
cal parents filed a motion to dismiss, indicating that they had
been married in June and that therefore, the case no longer
met the statutory requirements for grandparent visitation under
§ 43-1802. See § 43-1802(1) (“grandparent may seek visitation
with his or her minor grandchild if: . . . (c) The parents of the
minor child have never been married but paternity has been
legally established”).
The district court in Muzzey found that despite the parents’
marriage, the grandparents had standing to seek grandpar-
ent visitation, because the marriage happened after the com-
mencement of litigation. The district court also found that the
issues were not moot, because the dispute which existed at
the beginning of litigation had not been eliminated. After a
trial, the district court ordered grandparent visitation with the
minor child. The parents appealed, arguing that their marriage
resulted in a loss of standing for the grandparents and that
they no longer had a right to request visitation.
On appeal, this court then concluded the grandparents had
standing to seek grandparent visitation with the minor child
under the grandparent visitation statutes because although
paternity had been established, the parents were not married at
the inception of the proceedings. This court continued, “even
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Cite as 26 Neb. App. 678though [the parents] subsequently married, [the grandparents]
did not lose standing.” Muzzey, 20 Neb. App. at 679, 831
N.W.2d at 46. We concluded, however, that the case became
moot when circumstances changed during the pendency of the
case, stating as follows:
Section 43-1802(1)(c) allows for grandparent visitation
when the parents of the child have never been married
and paternity has been legally established. At the incep-
tion of the case, these circumstances were true; how-
ever, during the pendency of the case [the parents] were
legally married. Thus, in accordance with the grandpar-
ent visitation statutes, [the grandparents] no longer have
the right to request grandparent visitation and the issue
is moot.
Muzzey, 20 Neb. App. at 679, 831 N.W.2d at 46.
In Muzzey, therefore, the grandparents’ action was predi-
cated on § 43-1802(1)(c), which allows for grandparent visita-
tion when the biological parents have never been married, but
paternity has been established. The grandparents had a legally
cognizable interest under § 43-1802(1)(c) when they filed;
however, that interest ceased to exist upon the marriage of
the biological parents. In this case, Dean and Michelle sought
grandparent visitation under § 43-1802(1)(b), which allows a
grandparent to seek visitation if “[t]he marriage of the child’s
parents has been dissolved or petition for the dissolution of
such marriage has been filed, is still pending, but no decree
has been entered[.]” Rachel and Taylor divorced in 2013, and
Dean and Michelle subsequently filed their application for
grandparent visitation. Dean and Michelle’s legally cognizable
interest was predicated upon the divorce of Tayvin’s parents,
and nothing in the record shows any change in circumstances
in that regard. Therefore, unlike Muzzey, where the marriage of
the grandchild’s biological parents extinguished the legal basis
upon which the grandparents sought visitation, in this case, the
legal basis for visitation still exists because Rachel and Taylor
remain divorced.
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Cite as 26 Neb. App. 678Accordingly, Dean and Michelle’s application for grandpar-
ent visitation did not become moot, because they continue to
have a legally cognizable interest in the outcome of litiga-
tion, they seek to determine a question upon existing facts
and rights, and the issues presented are still alive. Dean and
Michelle’s application for grandparent visitation was therefore
erroneously dismissed. We reverse the district court’s deci-
sion to dismiss Dean and Michelle’s action, and we remand
the cause so that the district court can determine the merits of
their application for grandparent visitation under § 43-1802(2).
When determining whether to award reasonable rights of visi-
tation to a grandparent, § 43-1802(2) requires clear and con-
vincing evidence that there is, or there has been, a significant
beneficial relationship between the grandparent and the child,
that it is in the best interests of the child that the relationship
continue, and that such visitation will not adversely interfere
with the parent-child relationship.
CONCLUSION
We affirm the district court’s order insofar as it concluded
that Dean and Michelle had standing to bring their action seek-
ing grandparent visitation. However, we reverse the district
court’s order as to its conclusion that Dean and Michelle’s action
was moot and therefore had to be dismissed. Accordingly, we
remand the cause for further proceedings for a determination
of the merits of Dean and Michelle’s application for grandpar-
ent visitation.
A ffirmed in part, and in part reversed and
remanded for further proceedings.