Williams v. Williams , 311 Neb. 772 ( 2022 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/22/2022 09:06 AM CDT
    - 772 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    Katherine Williams, appellant, v.
    Katelyn Williams, appellee.
    ___ N.W.2d ___
    Filed June 17, 2022.    No. S-21-180.
    1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law which an appellate court reviews independently of the
    lower court.
    2. Jurisdiction: Visitation: Parties. A parent is an indispensable party to
    an action for grandparent visitation, and if a parent is not included in the
    proceedings, a court lacks subject matter jurisdiction to enter an order
    granting grandparent visitation.
    3. Parties. When an indispensable party is absent, the court has a duty
    under 
    Neb. Rev. Stat. § 25-323
     (Reissue 2016) to require that the indis-
    pensable party be brought into the action.
    4. Actions: Jurisdiction. The lack of subject matter jurisdiction can be
    raised at any time by any party or by the court sua sponte.
    Petition for further review from the Court of Appeals,
    Arterburn, Moore, and Bishop, Judges, on appeal thereto
    from the District Court for Lancaster County, Lori A. Maret,
    Judge. Judgment of Court of Appeals reversed and remanded
    with directions.
    Steffanie J. Garner Kotik, of Kotik & McClure Law, for
    appellant.
    Katelyn Williams, pro se.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    - 773 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    Miller-Lerman, J.
    NATURE OF CASE
    Katherine Williams appealed to the Nebraska Court of
    Appeals from the order of the district court for Lancaster
    County which dismissed her amended complaint for grand­
    parent visitation. After it determined that it lacked jurisdiction
    because the minor child’s father had not been given notice
    of the proceedings, the district court dismissed the complaint
    without prejudice and denied Katherine’s motion to alter or
    amend or for new trial. The Court of Appeals agreed that the
    district court lacked jurisdiction, and it determined that it con-
    sequently lacked jurisdiction of this appeal. For that reason, the
    Court of Appeals summarily dismissed the appeal.
    We granted Katherine’s petition for further review of the
    Court of Appeals’ summary dismissal. Katherine claims that
    the Court of Appeals erred when it failed to reverse the dis-
    trict court’s dismissal. Katherine contends that the father was
    an indispensable party and that the district court erred when
    it failed to give the father an opportunity to participate in the
    proceedings before it dismissed the case. We agree, and as a
    consequence, the Court of Appeals erred when it dismissed
    the appeal rather than reversing the district court’s dismissal
    and remanding the cause with directions. We reverse the
    Court of Appeals’ summary dismissal of the appeal, and we
    remand the cause with directions to the Court of Appeals to
    reverse the district court’s dismissal and to remand the cause
    to the district court for further proceedings in accordance with
    this opinion.
    STATEMENT OF FACTS
    The appellant, Katherine, unsuccessfully sought grand­parent
    visitation with the minor child. Katherine is the mother of
    Katelyn Williams. Katelyn is the mother of the minor child,
    born in January 2017. Ted Henderson, Jr. (Ted), was adjudi-
    cated to be the biological father of the minor child. During
    the first 2 years of the minor child’s life, Katelyn and the
    - 774 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    minor child sometimes lived with Katherine and her husband
    and, at other times, they lived on their own or with Ted. Katelyn
    and the minor child lived with Katherine for over a year,
    beginning in October 2018. In late December 2019, Katelyn
    and the minor child moved out of Katherine’s house.
    On February 3, 2020, Katherine filed a complaint in the dis-
    trict court seeking grandparent visitation with the minor child.
    Katherine had Katelyn served with the complaint at an address
    in New York. Katherine filed an amended complaint in May
    that was served on Katelyn. Ted was not named as a party, and
    it does not appear that either complaint was served on him.
    Instead, Katherine alleged that she was “not certain of [Ted’s]
    whereabouts” and that Ted had “had no contact with [the minor
    child] for an extended period of time.”
    Trial was held on July 29, 2020. Although she had made
    filings in this case, Katelyn did not appear and was not repre-
    sented at the trial. Ted also did not appear. Katherine appeared
    and was a witness. She generally testified that from the minor
    child’s birth in January 2017 until December 2019, she had
    been very involved in his life and had been his primary care-
    taker for significant periods of time when Katelyn could not or
    would not provide care. Katherine testified that Katelyn had
    allowed her no access to the minor child since they moved out
    of her house in December 2019. She testified that she was con-
    cerned that Katelyn was not providing him with adequate care
    and had effectively abandoned him. Additionally, Katherine
    suggested that he should be placed with her. At the close of
    evidence, Katherine’s counsel argued that Katherine had shown
    not only that she should be awarded grandparent visitation
    but also that she stood in loco parentis to the minor child and
    should be awarded primary custody of him.
    After the trial, the district court filed an order on December
    8, 2020, in which it dismissed Katherine’s complaint with-
    out prejudice. The court generally reasoned that it lacked
    jurisdiction because Ted had not been given notice and an
    opportunity to be heard. Although the court acknowledged that
    - 775 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    Katherine’s complaint was fashioned as a complaint for grand-
    parent visitation, the court appeared to focus on Katherine’s
    argument that she stood in loco parentis to the minor child
    and should be awarded custody of him. Although this was
    not an initial custody determination, see 
    Neb. Rev. Stat. § 43-1239
     (Reissue 2016), the court nevertheless concluded
    that it “lack[ed] jurisdiction under the [Uniform Child Custody
    Jurisdiction and Enforcement Act] over this child custody pro-
    ceeding.” The court therefore dismissed Katherine’s amended
    complaint for grandparent visitation without prejudice. In so
    ruling, the court noted that there was no dispute that Ted was
    the adjudicated father of the minor child and that it was also
    clear that Ted had not been joined as a party and had not been
    given notice of the action.
    Katherine filed a motion to alter or amend judgment and
    motion for new trial, and later, she filed an amended motion
    to alter or amend judgment and a motion for new trial or to
    reopen the evidence. The amended motion to alter or amend
    added Ted’s name in the caption, and it included a certifica-
    tion stating that “the defendant’s attorney” had been served
    electronically and listing Katelyn’s address in New York and an
    address for Ted in Beatrice, Nebraska. The district court over-
    ruled Katherine’s motion and amended motion.
    Katherine appealed to the Court of Appeals and claimed
    that the district court erred when it dismissed her amended
    complaint for grandparent visitation and when it overruled her
    amended motion to alter or amend which would have added
    Ted as a party.
    The Court of Appeals summarily dismissed the appeal on its
    own motion with the following minute entry:
    Appeal dismissed. See Neb. Ct. R. App. P. § 2-107(A)(2).
    Because the biological father was an indispensable party
    to the action for grandparent visitation, but was not
    included in the proceedings, the district court lacked
    subject matter jurisdiction and so does the appellate
    court. See, Davis v. Moats, 
    308 Neb. 757
    , 956 N.W.2d
    - 776 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    682 (2021); Morse v. Olmer, 
    29 Neb. App. 346
    , 
    954 N.W.2d 638
     (2021). While the district court could have
    allowed [Katherine] to amend her complaint in order to
    join the biological father as a party, there was no error
    in the court’s decision to dismiss without prejudice, such
    that [Katherine] can refile the action.
    We granted Katherine’s petition for further review of the
    Court of Appeals’ summary dismissal of this appeal.
    ASSIGNMENT OF ERROR
    Katherine claims, restated, that the Court of Appeals erred
    when it failed to reverse the dismissal of her amended com-
    plaint and when it did not remand the cause to the district
    court with directions to give Ted an opportunity to participate
    in the proceedings.
    STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law
    which an appellate court reviews independently of the lower
    court. Porter v. Knife River, Inc., 
    310 Neb. 946
    , 
    970 N.W.2d 104
     (2022).
    ANALYSIS
    Katherine claims generally that the Court of Appeals erred
    when it failed to reverse the district court’s order dismissing
    her amended complaint and to remand the cause to the district
    court with directions to give Ted an opportunity to participate
    in the proceedings. In particular, we agree with Katherine
    that her amended motion to alter or amend or motion for new
    trial—which should have given Ted such opportunity—should
    have been granted, and we reverse the Court of Appeals’ dis-
    missal accordingly.
    In two recent grandparent visitation cases, Davis v. Moats,
    
    308 Neb. 757
    , 
    956 N.W.2d 682
     (2021), and Morse v. Olmer, 
    29 Neb. App. 346
    , 
    954 N.W.2d 638
     (2021), the Court of Appeals
    and this court have applied the indispensable party feature
    of 
    Neb. Rev. Stat. § 25-323
     (Reissue 2016) and concluded
    - 777 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    that the father with nonterminated parental rights was an indis-
    pensable party. In Morse v. Olmer, paternal grandparents filed
    a complaint for grandparent visitation against the mother of
    their granddaughter, but they failed to serve the complaint on
    their son, the granddaughter’s father. After a hearing at which
    the father of the granddaughter did not appear, the district court
    awarded visitation to the grandparents. The Court of Appeals
    noted 
    Neb. Rev. Stat. § 43-1803
    (2) (Reissue 2016), which is
    part of the grandparent visitation statutes and which provides
    that “[w]hen a petition seeking visitation is filed, a copy of
    the petition shall be served upon the parent or parents or other
    party having custody of the child and upon any parent not hav-
    ing custody of such child . . . .” The Court of Appeals deter-
    mined that the father “was entitled to be served and participate
    in the present proceeding by virtue of both § 43-1803(2)
    and his constitutionally protected parental rights.” Morse v.
    Olmer, 29 Neb. App. at 354, 954 N.W.2d at 644. The Court
    of Appeals further determined that the father was an indispen­
    sable party and that under § 25-323, the district court lacked
    jurisdiction to consider the grandparents’ complaint because
    he had not been included in the proceedings. The Court of
    Appeals therefore reversed the district court’s order granting
    grandparent visitation, and it “remanded [the cause] to [the
    district] court with directions to add [the father] to the case as
    an indispen­sable party.” Morse v. Olmer, 29 Neb. App. at 355,
    954 N.W.2d at 645.
    Shortly after the Court of Appeals decided Morse v. Olmer,
    supra, we decided Davis v. Moats, 
    supra,
     in which a grand-
    mother filed a petition seeking visitation with her grandchild
    and named the mother, but not the father, as a defendant. After
    a trial, the district court granted the grandmother’s request
    and ordered visitation. The court later found the mother to be
    in contempt for failing to comply with the visitation order.
    The mother moved to vacate and strike the contempt order
    and the order granting grandparent visitation on the basis that
    the district court lacked subject matter jurisdiction because
    - 778 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    the father was an indispensable party and had not been joined
    in the action. The district court overruled the mother’s motion
    to vacate and strike, and the mother appealed to this court.
    [2] We began our analysis in Davis v. Moats, 
    supra,
     by stat-
    ing that grandparent visitation is controlled by statute, and we
    noted in particular § 43-1803(2), which requires that a copy
    of the petition for grandparent visitation be served upon, inter
    alia, the parent having custody and any parent not having
    custody. We recognized that the “relationship between parent
    and child is constitutionally protected, and proceedings which
    impact that relationship must afford both parents due process
    of law.” Davis v. Moats, 
    308 Neb. 757
    , 767, 
    956 N.W.2d 682
    ,
    690 (2021). We noted that actions for grandparent visitation
    may affect parental rights. We stated as follows:
    Because the biological father was an indispensable
    party to the action for grandparent visitation, but was not
    included in the proceedings, the district court lacked sub-
    ject matter jurisdiction to enter an order granting grand-
    parent visitation, and thus, that order is void and is hereby
    vacated. Further, because the order granting grandparent
    visitation is void, the order finding [the mother] in con-
    tempt of the order is also void and is hereby vacated.
    
    Id. at 770
    , 956 N.W.2d at 691-92. We remanded the matter
    to the district court and stated that “the district court lacked
    subject matter jurisdiction to make a determination as to [the
    grandmother’s] visitation rights without giving [the father] the
    opportunity to participate in the proceedings.” Id. at 767, 956
    N.W.2d at 690.
    [3] Although Katherine did not cite the statutes in her
    complaint or amended complaint, and although at the trial,
    Katherine suggested that she be awarded primary custody, it
    is clear that the action was filed pursuant to the grandparent
    visitation statutes. This case therefore is similar to Davis v.
    Moats, 
    supra,
     and Morse v. Olmer, 
    29 Neb. App. 346
    , 
    954 N.W.2d 638
     (2021), which both involved grandparent visita-
    tion actions in which the grandparent filing the action failed
    - 779 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    to name the father as a party or have the father served notice
    of the action. In this case, Katherine failed to name Ted as a
    party or to serve him notice of the action. As we determined
    in Davis v. Moats and the Court of Appeals determined in
    Morse v. Olmer, based on § 43-1803(2) and the constitution-
    ally protected relationship of parent and child, a legal parent is
    an indispensable party in a grandparent visitation action and a
    court lacks subject matter jurisdiction to enter an order grant-
    ing grandparent visitation if a parent is not included in the pro-
    ceedings. We agree with the district court’s determination that
    Ted was an indispensable party who had not been included in
    this proceeding, and in the absence of his joinder or unsuccess-
    ful efforts at joinder, the court lacked subject matter jurisdic-
    tion to enter an order granting grandparent visitation. However,
    once the district court realized the absence of Ted defeated
    jurisdiction, under § 25-323 and Midwest Renewable Energy v.
    American Engr. Testing, 
    296 Neb. 73
    , 
    894 N.W.2d 221
     (2017),
    the court had a duty to require that Ted be brought into the
    action rather than dismiss the case.
    [4] The absence of an indispensable party deprives the
    court of subject matter jurisdiction. The lack of subject matter
    jurisdiction can be raised at any time by any party or by the
    court sua sponte. Omaha Expo. & Racing v. Nebraska State
    Racing Comm., 
    307 Neb. 172
    , 
    949 N.W.2d 183
     (2020). In
    Davis v. Moats, 
    supra,
     we emphasized that the father must be
    given an opportunity to participate in the grandparent visitation
    proceedings. Just such an opportunity presented itself in this
    case, when Katherine filed her motion to alter or amend the
    judgment or motion for new trial pursuant to which Ted would
    be joined.
    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
    - 780 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    without the presence of other parties, the court must order
    them to be brought in.
    (Emphasis supplied.)
    Ted, as a parent, was an indispensable party in this grand-
    parent visitation action, and therefore, the requirement under
    § 25-323 that “the court must order [indispensable parties]
    to be brought in” applies in this case. In Midwest Renewable
    Energy v. American Engr. Testing, 
    296 Neb. at 90
    , 894 N.W.2d
    at 236, we stated that this second clause of § 25-323 “mandates
    the district court order indispensable parties be brought into the
    controversy.” We also said that § 25-323 “makes it the court’s
    duty to require an indispensable party be added to the litiga-
    tion.” Midwest Renewable Energy v. American Engr. Testing,
    
    296 Neb. at 89
    , 894 N.W.2d at 235.
    It would be wrong, however, to read the command of
    § 25-323 beyond the plain meaning of its words—“the court
    must order [the indispensable parties] to be brought in.” Once
    the trial court so orders, it is up to the parties to take the steps
    necessary to implement the order. See, Davis v. Moats, 
    308 Neb. 757
    , 
    956 N.W.2d 682
     (2021); Midwest Renewable Energy
    v. American Engr. Testing, 
    supra.
     Accomplishment of amend-
    ments to pleadings, issuance and service of summonses, and
    the like fall on the parties and not the court. See Dempster v.
    Ashton, 
    125 Neb. 535
    , 
    250 N.W. 917
     (1933). And, ultimately, if
    the party asserting the claim involving the indispensable party
    fails to bring the party in, dismissal remains as an appropriate
    disposition. See, 
    Neb. Rev. Stat. § 25-601
    (3) (Reissue 2016);
    Dempster v. Ashton, supra.
    In her amended motion to alter or amend, Katherine appears
    to have attempted to bring Ted into the action by including
    his name in the caption and listing his address in the certifi-
    cate of service. In its minute entry summarily dismissing this
    appeal, the Court of Appeals stated, “While the district court
    could have allowed [Katherine] to amend her complaint in
    order to join the biological father as a party, there was no
    error in the court’s decision to dismiss without prejudice,
    - 781 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    such that [Katherine] can refile the action.” This statement
    indicates that the Court of Appeal read the “must” in the sec-
    ond clause of § 25-323 as permissive rather than mandatory.
    We generally do not read the use of the terms “must” and
    “shall” as permissive rather than mandatory. See Karo v. NAU
    Country Ins. Co., 
    297 Neb. 798
    , 
    901 N.W.2d 689
     (2017). We
    believe the Court of Appeals erred when it read § 25-323
    as permissive, and not mandatory, and consequently misap-
    plied § 25-323.
    In this case, the Court of Appeals determined that without
    the father, Ted, having been given an opportunity to par-
    ticipate, the district court lacked subject matter jurisdiction to
    order grandparent visitation and therefore the Court of Appeals
    also lacked jurisdiction. Although Katherine sought to include
    Ted, the Court of Appeals did not remand the cause with direc-
    tions for the district court to fulfill its duty to require Ted to
    be brought into the action as sought by Katherine. In Davis v.
    Moats, 
    supra,
     we recognized that when the lower court lacks
    subject matter jurisdiction to adjudicate an issue, an appellate
    court also lacks the power to determine the merits of that issue,
    and that when an appellate court is without jurisdiction to act,
    the appeal must be dismissed. However, we also recognized
    that in addition to having the power to determine whether
    it lacks jurisdiction over an appeal because the lower court
    lacked jurisdiction, the appellate court also has the power, if
    necessary, to remand the cause with appropriate directions.
    See 
    id.
     We have specifically stated that “‘[w]hen it appears
    that all indispensable parties to a proper and complete deter-
    mination of an equity cause were not before the district court,
    [an appellate court] will remand the cause for the purpose of
    having such parties brought in.’” Pestal v. Malone, 
    275 Neb. 891
    , 896, 
    750 N.W.2d 350
    , 355 (2008). Albeit in the statutory
    grandparent visitation context, we apply this reasoning to the
    instant case.
    In light of its duty under § 25-323, the district court should
    have allowed Katherine to complete her efforts as reflected
    - 782 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    WILLIAMS v. WILLIAMS
    Cite as 
    311 Neb. 772
    in her amended motion to alter or amend or motion for new
    trial to bring Ted into the action, and the Court of Appeals
    should have remanded the cause with directions to the district
    court to order her to do so.
    CONCLUSION
    The district court correctly determined that the father, Ted,
    was an indispensable party in this grandparent visitation action,
    but we conclude that § 25-323 required the district court to
    order that Ted, as an indispensable party, be brought into the
    action as sought by Katherine before it dismissed the action for
    lack of an indispensable party. The Court of Appeals endorsed
    the dismissal, which was error. We therefore reverse the Court
    of Appeals’ summary dismissal, and we remand the cause to
    the Court of Appeals with directions to reverse the district
    court’s dismissal of Katherine’s complaint and to remand the
    cause to the district court with directions to order Katherine to
    bring Ted into the action.
    Reversed and remanded with directions.