Morse v. Olmer , 29 Neb. Ct. App. 346 ( 2021 )


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    01/12/2021 09:07 AM CST
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    Nebraska Court of Appeals Advance Sheets
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    MORSE v. OLMER
    Cite as 
    29 Neb. App. 346
    Myron Morse and Lori Morse, appellees,
    v. Kaylee Olmer, appellant.
    ___ N.W.2d ___
    Filed January 12, 2021.    No. A-19-1090.
    1. Visitation: Appeal and Error. Determinations concerning grandparent
    visitation are initially entrusted to the discretion of the trial judge, whose
    determinations, on appeal, will be reviewed de novo on the record and
    affirmed in the absence of an abuse of the trial judge’s discretion.
    2. Judges: Words and Phrases. A judicial abuse of discretion exists when
    a judge, within the effective limits of authorized judicial power, elects
    to act or refrain from action, but the selected option results in a deci-
    sion which is untenable and unfairly deprives a litigant of a substantial
    right or a just result in matters submitted for disposition through a judi-
    cial system.
    3. Parties: Jurisdiction: Waiver. The presence of indispensable or neces-
    sary parties to a suit is a jurisdictional matter that cannot be waived by
    the parties; it is the duty of the plaintiff to join all persons who have or
    claim any interest that would be affected by the judgment.
    4. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
    late court to determine whether it has jurisdiction over the matter before
    it, irrespective of whether the issue is raised by the parties.
    5. Jurisdiction: Parties: Waiver. The absence of an indispensable party to
    a controversy deprives the court of subject matter jurisdiction to deter-
    mine the controversy and cannot be waived.
    6. Jurisdiction: Appeal and Error. When a lower court lacks the power,
    that is, the subject matter jurisdiction, to adjudicate the merits of a
    claim, issue, or question, an appellate court also lacks the power to
    determine the merits of the claim, issue, or question presented to the
    lower court.
    7. Parties: Equity: Appeal and Error. When it appears that all indis-
    pensable parties to a proper and complete determination of an equity
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    MORSE v. OLMER
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    cause were not before the court, an appellate court will remand the cause
    for the purpose of having such parties brought in.
    8. Visitation: Parties. A noncustodial parent is an indispensable party to
    an action regarding grandparent visitation.
    9. Constitutional Law: Due Process: Parent and Child. The relationship
    between parent and child is constitutionally protected, and proceedings
    which impact that relationship must afford both parents due process
    of law.
    Appeal from the District Court for Platte County: Robert
    R. Steinke, Judge. Reversed and remanded for further
    proceedings.
    Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
    Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher,
    Klutman & Valorz, for appellees.
    Bishop, Arterburn, and Welch, Judges.
    Arterburn, Judge.
    INTRODUCTION
    Kaylee Olmer appeals from an order of the district court for
    Platte County granting Myron Morse and Lori Morse grand-
    parent visitation with Kaylee’s daughter, Lily Olmer. Because
    Lily’s father, Aaron Morse, was an indispensable party to the
    action and was not joined in the proceedings, we find that the
    district court lacked jurisdiction to address grandparent visita-
    tion rights. Thus, we must reverse the district court’s order
    granting the Morses visitation with Lily.
    BACKGROUND
    Kaylee and Aaron are the biological parents of Lily, born
    in August 2017. The Morses are Aaron’s parents and Lily’s
    paternal grandparents. Kaylee and Aaron have never been mar-
    ried. In fact, they were both approximately 15 years old at the
    time of Lily’s birth in 2017 and were both 17 years old by the
    time of the proceedings. Kaylee has physical and legal custody
    of Lily. At the time of the proceedings, Aaron was being held
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    MORSE v. OLMER
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    at a youth rehabilitation and treatment center as a result of his
    multiple law violations.
    When Lily was born in August 2017, Kaylee and Aaron
    were still in a relationship. Lori was present in the delivery
    room when Lily was born, and Myron was nearby in the
    hospital. They were present at Lily’s baptism, and Lori even
    assisted with the preparations for this event. The Morses were
    permitted to visit Lily whenever they wished at Kaylee’s par-
    ent’s home, and on a few occasions, Lily visited the Morses at
    their home.
    Kaylee and Aaron’s relationship ended in July 2018. From
    August 2018, when Lily turned 1 year old, through December
    2018, the Morses saw Lily one time per month when Kaylee’s
    parents brought Lily to a local restaurant for a visit. In December
    2018, a temporary order was entered in a paternity proceed-
    ing initiated by Aaron. The temporary order provided Aaron
    with parenting time with Lily every other weekend, excluding
    overnights. The Morses were required to supervise these visits.
    The every other weekend visits between Lily, Aaron, and the
    Morses continued through March 2019, when Aaron’s visita-
    tion was suspended due to his detention associated with pend-
    ing juvenile proceedings.
    In April 2019, the Morses filed a complaint for grandpar-
    ent visitation, naming Kaylee as the sole defendant. In the
    complaint, the Morses alleged that Kaylee is Lily’s custodial
    parent, Aaron is her noncustodial parent, and they are her
    paternal grandparents. The Morses also alleged that their dif-
    ferences with Kaylee are “irreconcilable” as they “have con-
    tacted [Kaylee] on numerous occasions and requested visita-
    tion with their grandchild. Currently at this time no visitation
    schedule has been made, and if visitations occur they are at
    the total discretion of [Kaylee].” They requested that the dis-
    trict court award them reasonable visitation with Lily. Kaylee
    entered a voluntary appearance acknowledging her receipt of
    the Morses’ complaint, and she later filed an answer. However,
    there is nothing in our record which indicates that Aaron
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    MORSE v. OLMER
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    was ever served or otherwise received a copy of the complaint.
    In addition, there is no indication that he was provided notice
    of the trial date.
    A trial was held on the Morses’ complaint for grandparent
    visitation on October 17, 2019. Aaron did not appear for the
    trial either in person or by counsel. At the trial, Lori, Myron,
    and Kaylee testified. After hearing their testimonies, the dis-
    trict court granted the Morses’ request for reasonable visitation
    with Lily. The court stated:
    Having heard and considered all the evidence offered
    during the trial in this case, the Court is going to find
    by clear and convincing evidence that the [Morses]
    have met their burden of proof. Specifically, that they
    have met, again by clear and convincing evidence, that
    there is and has been a significant beneficial relation-
    ship between them and the child, Lily. That it’s in the
    best interests of Lily that such relationship continue and
    that such visitation as will be ordered by the Court will
    not, in the Court’s view, adversely interfere with the
    parent-child relationship.
    The court awarded the Morses visitation with Lily on the third
    Saturday and Sunday of each month from 9 a.m. to 6 p.m. and
    on the first Tuesday of each month from 4 to 7 p.m. The court
    explicitly ordered that any grandparent visitation exercised by
    the Morses could not include Aaron.
    Kaylee has appealed from the district court’s order.
    ASSIGNMENTS OF ERROR
    On appeal, Kaylee asserts that the district court erred in
    granting the Morses’ request for grandparent visitation with
    Lily. Specifically, Kaylee argues that the district court erred in
    (1) finding that the Morses have a significant beneficial rela-
    tionship with Lily, (2) finding that it was in the best interests
    of Lily to have court-ordered visitation with the Morses, (3)
    finding that the Morses’ visitation with Lily will not adversely
    interfere with the parent-child relationship, (4) failing to
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    MORSE v. OLMER
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    give “special weight” to Kaylee’s decisionmaking authority,
    and (5) failing to adequately consider Aaron’s role in the
    proceedings.
    STANDARD OF REVIEW
    [1,2] Determinations concerning grandparent visitation are
    initially entrusted to the discretion of the trial judge, whose
    determinations, on appeal, will be reviewed de novo on the
    record and affirmed in the absence of an abuse of the trial
    judge’s discretion. Gatzemeyer v. Knihal, 
    25 Neb. App. 897
    ,
    
    915 N.W.2d 630
     (2018). A judicial abuse of discretion exists
    when a judge, within the effective limits of authorized judicial
    power, elects to act or refrain from action, but the selected
    option results in a decision which is untenable and unfairly
    deprives a litigant of a substantial right or a just result in mat-
    ters submitted for disposition through a judicial system. 
    Id.
    [3] The presence of indispensable or necessary parties to a
    suit is a jurisdictional matter that cannot be waived by the par-
    ties; it is the duty of the plaintiff to join all persons who have
    or claim any interest that would be affected by the judgment.
    See Pestal v. Malone, 
    275 Neb. 891
    , 
    750 N.W.2d 350
     (2008).
    ANALYSIS
    [4] Before reaching Kaylee’s assignments of error, this court
    must first determine whether it has jurisdiction. It is the power
    and duty of an appellate court to determine whether it has
    jurisdiction over the matter before it, irrespective of whether
    the issue is raised by the parties. J.S. v. Grand Island Public
    Schools, 
    297 Neb. 347
    , 
    899 N.W.2d 893
     (2017).
    At trial, and on appeal, the parties do not explicitly address
    whether the district court had jurisdiction to consider the
    Morses’ action. In Kaylee’s brief on appeal, she does argue
    that the district court abused its discretion by failing to take
    Aaron into consideration when awarding the Morses grand-
    parent visitation. As a part of her argument, Kaylee asserts
    that the Morses failed to serve Aaron with a copy of their
    complaint pursuant to 
    Neb. Rev. Stat. § 43-1803
    (2) (Reissue
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    2016), which requires a petition seeking grandparent visitation
    to “be served upon the parent or parents or other party having
    custody of the child and upon any parent not having custody
    of such child.” However, in her brief, Kaylee does not go so
    far as to argue that the Morses’ failure to serve Aaron with a
    copy of the complaint constituted a jurisdictional defect. Upon
    our review, we conclude that the failure of the Morses to add
    Aaron as a party to the proceedings deprived the district court
    of jurisdiction.
    
    Neb. Rev. Stat. § 25-323
     (Reissue 2016) is entitled “Necessary
    parties; brought into suit; procedure.” Section 25-323 provides
    in part:
    The court may determine any controversy between
    parties before it when it can be done without prejudice
    to the rights of others or by saving their rights; but when
    a determination of the controversy cannot be had without
    the presence of other parties, the court must order them to
    be brought in.
    The language of § 25-323 tracks the traditional distinc-
    tion between necessary and indispensable parties. Midwest
    Renewable Energy v. American Engr. Testing, 
    296 Neb. 73
    ,
    
    894 N.W.2d 221
     (2017). This court, in In re Trust Created by
    Augustin, 
    27 Neb. App. 593
    , 620-21, 
    935 N.W.2d 493
    , 515
    (2019), reviewed the distinction, explaining:
    “‘“‘Necessary parties[ ]’ [are parties] who have an interest
    in the controversy, and should ordinarily be joined unless
    their interests are separable so that the court can, without
    injustice, proceed in their absence[.] ‘Indispensable par-
    ties[ ]’ [are parties] whose interest is such that a final
    decree cannot be entered without affecting them, or that
    termination of controversy in their absence would be
    inconsistent with equity.”
    “‘. . . The inclusion of a necessary party is within the
    trial court’s discretion. . . . However, there is no dis-
    cretion as to the inclusion of an indispensable party.’”
    [Midwest Renewable Energy v. American Engr. Testing,
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    296 Neb.] at 90, 894 N.W.2d at 236. Therefore, the first
    clause of § 25-323 makes the inclusion of necessary par-
    ties discretionary when a controversy of interest to them
    is severable from their rights. See Midwest Renewable
    Energy v. American Engr. Testing, 
    supra.
     “The second
    clause, however, mandates the district court order indis-
    pensable parties be brought into the controversy.” 
    Id. at 90
    , 894 N.W.2d at 236. All persons interested in the
    contract or property involved in an action are necessary
    parties, whereas all persons whose interests therein may
    be affected by a decree in equity are indispensable par-
    ties. See Midwest Renewable Energy v. American Engr.
    Testing, 
    supra.
    [5-7] The absence of an indispensable party to a controversy
    deprives the court of subject matter jurisdiction to determine
    the controversy and cannot be waived. In re Trust Created
    by Augustin, supra. When a lower court lacks the power, that
    is, the subject matter jurisdiction, to adjudicate the merits of
    a claim, issue, or question, an appellate court also lacks the
    power to determine the merits of the claim, issue, or ques-
    tion presented to the lower court. Id. When it appears that all
    indispensable parties to a proper and complete determination
    of an equity cause were not before the court, an appellate court
    will remand the cause for the purpose of having such parties
    brought in. Id.
    [8] The question presented by this appeal is whether a non-
    custodial parent is an indispensable party to an action regard-
    ing grandparent visitation. We conclude that a noncustodial
    parent is such an indispensable party.
    [9] The relationship between parent and child is constitu-
    tionally protected, and proceedings which impact that rela-
    tionship must afford both parents due process of law. See
    Quilloin v. Walcott, 
    434 U.S. 246
    , 
    98 S. Ct. 549
    , 
    54 L. Ed. 2d 511
     (1978). In Beal v. Endsley, 
    3 Neb. App. 589
    , 
    529 N.W.2d 125
     (1995), this court discussed whether a noncustodial parent
    must be made a party to grandparent visitation proceedings in
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    the context of both parents’ right to due process. In that case,
    the grandparents filed an action requesting grandparent visita-
    tion after the divorce of their grandchildren’s parents. In the
    complaint, the grandparents named only the children’s custo-
    dial parent as a party to the action. This court “correct[ed] the
    caption in [the] matter to properly reflect that [the noncustodial
    parent] is a party to these proceedings.” Id. at 592, 
    529 N.W.2d at 127
    . We explained:
    Although § 43-1803, the statute addressing the contents
    of a petition seeking grandparent visitation rights, does
    not specify who the proper parties defendant are, that sec-
    tion does require that the name of the custodial, as well
    as the noncustodial, parent of the child is to be set forth,
    and subsection (2) of that statute requires that a copy of
    the petition is to be served upon both.
    Id. at 592, 
    529 N.W.2d at 128
    . We ultimately held, “In a peti-
    tion filed pursuant to § 43-1801 et seq., in that circumstance
    where the grandchild’s parents are divorced, both parents
    should be made parties to the proceedings.” Beal v. Endsley,
    3 Neb. App. at 592, 
    529 N.W.2d at 128
    . However, we did not
    explicitly decide whether a noncustodial parent is an indispen­
    sable party to a grandparent visitation proceeding, because in
    Beal, the noncustodial parent had filed a voluntary appearance
    despite not being named as a party to the action.
    This court has also previously addressed whether a parent
    must be given an opportunity to participate in proceedings
    regarding grandparent visitation. In In re Interest of Zachary
    W. & Alyssa W., 
    3 Neb. App. 274
    , 
    526 N.W.2d 233
     (1994),
    we held that the juvenile court erred in granting grandparent
    visitation without giving the children’s mother any opportunity
    for a hearing on the issue. We stated, “The proposition that a
    person’s constitutionally protected right cannot be interfered
    with without an opportunity to be heard is well founded in
    the Due Process Clause in the Constitution.” In re Interest of
    Zachary W. & Alyssa W., 3 Neb. App. at 280, 526 N.W.2d at
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    238. We reversed the juvenile court’s order granting grandpar-
    ent visitation, but noted that the issue could be revisited after
    a second application, notice to the parents, and an evidentiary
    hearing. 
    Id.
    In this case, Aaron, who is Lily’s biological father, was not
    named as a party in the Morses’ grandparent visitation action.
    In fact, as Kaylee argues in her brief, there is no indication
    that Aaron was served or otherwise received any notice of the
    action as required by § 43-1803(2). Aaron did not appear or
    participate in the trial. And, while our record indicates that
    Aaron’s visitation with Lily had been temporarily suspended
    in a separate case due to his law violations, there is no indica-
    tion that Aaron’s parental rights had been terminated or that
    they were in jeopardy. His inability to participate at any stage
    of the proceedings related to grandparent visitation was a clear
    violation of his due process rights relative to his constitution-
    ally protected relationship with Lily. Court-ordered grandpar-
    ent visitation will have an impact on Aaron’s relationship
    with Lily, and he was entitled to have notice and be heard on
    this issue.
    In particular, we note that despite Aaron’s absence at the
    proceedings, the district court ordered that the Morses’ time
    with Lily could not include Aaron. This order would necessar-
    ily impact any potential future parenting time that Aaron could
    be awarded. While we recognize that Aaron’s parenting time
    had been suspended pursuant to an order in a separate pater-
    nity case (a proceeding in which we presume he had notice),
    that suspension cannot be considered cause for eliminating him
    from the present case.
    In short, Aaron was entitled to be served and participate
    in the present proceeding by virtue of both § 43-1803(2)
    and his constitutionally protected parental rights. We con-
    clude that Aaron was an indispensable party to the Morses’
    grandparent visitation action. Because he was not joined as
    a party, the district court lacked jurisdiction to consider the
    Morses’ complaint.
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    CONCLUSION
    The district court lacked jurisdiction over this case because
    Aaron was an indispensable party and was not included in the
    proceedings. As a result, the district court’s order granting
    grandparent visitation to the Morses is reversed and the cause
    is remanded to that court with directions to add Aaron to the
    case as an indispensable party.
    Reversed and remanded for
    further proceedings.