Carroll v. Gould , 308 Neb. 12 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    Arleene E. Carroll, appellee, v. Gabriel
    W. Gould, appellee, and James
    Gould, appellant.
    ___ N.W.2d ___
    Filed December 18, 2020.   No. S-20-264.
    1. Interventions: Judgments: Appeal and Error. Whether a party has the
    right to intervene in a proceeding is a question of law. When review-
    ing questions of law, an appellate court has an obligation to resolve the
    questions independently of the conclusion reached by the trial court.
    2. Interventions: Pleadings. For purposes of ruling on a motion for leave
    to intervene, a court must assume that the intervenor’s factual allega-
    tions set forth in the complaint are true.
    3. Interventions: Statutes. Intervention was unknown both at common
    law and in equity, and is a creature of statute.
    4. ____: ____. The intervention statutes are to be liberally construed.
    5. ____: ____. The right to intervene pursuant to statute is absolute.
    6. Interventions: Pleadings. While intervention under 
    Neb. Rev. Stat. § 25-328
     (Reissue 2016) is a matter of right, the court may make a
    preliminary determination whether the complaint in intervention suf-
    ficiently alleges the requisite interest.
    7. ____: ____. A court has authority to exclude from the case an inter-
    venor whose pleadings do not disclose a direct interest in the matter
    in litigation.
    8. Interventions. As a prerequisite to intervention, the intervenor must
    have a direct and legal interest of such character that the intervenor will
    lose or gain by the direct operation and legal effect of the judgment
    which the court may render in the action.
    9. ____. An indirect, remote, or conjectural interest in the result of a suit is
    not enough to establish intervention as a matter of right.
    10. Interventions: Pleadings. A prospective intervenor can raise his or her
    claims or defenses, but those claims or defenses must involve the same
    core issue as the claims between the existing parties.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    11. Interventions: Pleadings: Standing. For a court as a preliminary mat-
    ter to permit intervention as a matter of right, the intervenor must plead
    some interest in the subject matter of the litigation to give him or her
    standing in court, describing the ultimate facts evidencing the interve-
    nor’s interest in the matter of litigation; otherwise, the intervenor is a
    mere interloper and wholly incompetent to challenge the contentions of
    the opposing parties.
    12. Interventions: Pleadings. Intervention is initially determined on the
    pleadings by assuming the truth of the allegations therein, and any fac-
    tual findings relating to those allegations do not occur until a subsequent
    evidentiary hearing upon a motion for summary judgment or at trial.
    13. Judicial Notice: Pleadings. While a court may take judicial notice of
    prior filings that are of public record without converting the matter into
    an evidentiary hearing on the underlying merits of a pleading, such judi-
    cial notice is limited to the fact of the filings’ existence as opposed to
    the truth of the matters contained therein.
    14. Interventions: Pleadings: Standing. The preliminary determination of
    standing to intervene is made at the time of the filing of the complaint
    to intervene.
    15. Parent and Child: Words and Phrases. A person standing in loco
    parentis to a child is one who has put himself or herself in the situation
    of a lawful parent by assuming the obligations incident to the parental
    relationship, without going through the formalities necessary to a legal
    adoption, and the rights, duties, and liabilities of such person are the
    same as those of the lawful parent.
    16. Parent and Child: Intent: Proof. The assumption of the relationship of
    in loco parentis is a question of intention, which may be shown by the
    acts and declarations of the person alleged to stand in that relationship.
    17. Parent and Child. In order to stand in loco parentis, one must assume
    all obligations incident to the parental relationship.
    Appeal from the District Court for Sarpy County: George
    A. Thompson, Judge. Reversed and remanded with directions.
    Kory L. Quandt, of Anderson, Bressman, Hoffman & Jacobs,
    P.C., L.L.O., for appellant.
    Alan D. Martin for appellee Gabriel W. Gould.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    Freudenberg, J.
    I. NATURE OF CASE
    The paternal grandfather appeals from the district court’s
    order denying his intervention, as a person standing in loco
    parentis, in a custody proceeding brought by the mother against
    the father. The complaint in intervention alleged that the child,
    then age 4, had lived in the grandfather’s home since her birth
    until the filing of the complaint to intervene, though the mother
    and father sometimes resided with the child at the grandfather’s
    home. The district court concluded that any in loco parentis
    status had been extinguished by virtue of a child support order
    issued more than a year prior, as well as through temporary
    custody orders placing the child with a parent, commencing
    approximately 2 months before the grandfather filed his com-
    plaint in intervention and 3 months before the court’s ruling
    denying intervention. The grandfather argues on appeal that the
    court erred by, among other things, failing to limit its inquiry
    to the pleadings, assuming that the allegations of the complaint
    in intervention were true. We reverse, and remand with direc-
    tions to allow the intervention.
    II. BACKGROUND
    The underlying action was commenced on November 25,
    2019, when Arleene E. Carroll (Arleene) filed a complaint
    against Gabriel W. Gould (Gabriel) in the district court for
    Sarpy County to establish custody and parenting time with
    respect to their biological child, S.G., born in 2016. The
    child was born out of wedlock. A prior order was apparently
    entered on March 22, 2019, in a companion case by the same
    court, establishing Gabriel’s paternity and his child support
    obligation.
    1. Arleene’s Complaint for Custody
    Arleene’s complaint alleged that S.G. had lived since birth
    with Arleene at an address on Leawood Drive in Sarpy
    County, Nebraska. Arleene alleged that she knew of no per-
    son not a party to the action who had physical custody of
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    S.G. or who claimed to have custody or visitation rights with
    respect to her.
    In her affidavit filed November 26, 2019, and found in the
    transcript, Arleene asserted that S.G. has resided with Arleene
    the entirety of her life. While the court at later hearings refers
    to this affidavit as exhibit 1, it is not in the bill of exceptions.
    Arleene alleged further in the affidavit that Gabriel had only
    infrequent visitations with S.G., only once without her supervi-
    sion, and had never asked for more visitation. Arleene expressed
    concern about Gabriel’s living situation, drug use, and criminal
    history. She also described an incident on November 24, 2019,
    when Gabriel allegedly took S.G. without their mutual agree-
    ment and refused to return her unless Arleene took Gabriel
    to court.
    2. November 26, 2019, Ex Parte Order
    of Custody to Arleene
    Arleene moved for an ex parte order granting her immedi-
    ate legal and physical custody of S.G. The court granted the
    requested ex parte order on November 26, 2019, giving law
    enforcement the power to assist Arleene in retrieving S.G. A
    hearing was set for December 6. There is no evidence in the
    record as to whether the November 26 ex parte order was ever
    carried out, but both Gabriel and the paternal grandfather,
    James Gould (James), assert on appeal that it was not.
    3. Gabriel’s Response
    On December 19, 2019, Gabriel filed a “JURISDICTIONAL
    CHALLENGE and Objection to Exparte Order.” Gabriel
    claimed that Arleene did not live at the address where she
    claimed to live and had not, in fact, been S.G.’s primary care-
    taker. The Leawood Drive home was the residence of James
    and his wife. Gabriel alleged that Arleene had resided at James’
    home “briefly” but, in September 2019, moved with her boy-
    friend to an address in Douglas County.
    Gabriel asked for sole legal custody of S.G., an order
    determining child support, an order of mediation to establish
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    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    parenting time, and sanctions against Arleene for “lying to
    the Court.”
    Arleene’s counsel moved to withdraw.
    4. December 31, 2019, Temporary
    Continuation of Ex Parte Order
    On December 31, 2019, the court ordered the November 26
    ex parte order to remain in effect as a temporary order and set
    the matter for hearing on January 31, 2020, on further tempo-
    rary allowances. The court also ordered Gabriel and Arleene to
    participate in mediation.
    Arleene’s counsel was permitted to withdraw. Gabriel and
    James both assert on appeal that Arleene never took physical
    custody pursuant to either temporary order.
    5. January 31, 2020, Modification
    of Temporary Custody to
    Be With Gabriel
    Following a hearing on January 31, 2020, which is not in
    the record, the court modified the temporary order so that
    temporary physical custody of S.G. was given to Gabriel sub-
    ject to Arleene’s reasonable rights of parenting time as deter-
    mined by the parties through mediation. The court ordered
    that medical costs and child support would remain as previ-
    ously ordered.
    6. James’ January 31, 2020, Complaint
    to Intervene and Motion
    for Custody
    That same date, James filed a complaint to intervene as a
    third-party plaintiff, claiming in loco parentis status. James
    asserted that S.G. had resided with him since her birth and
    that he had at all times assumed the obligations incident to the
    parental relationship.
    James asserted in the complaint that it was his desire and
    intention to remain in an in loco parentis relationship with
    S.G. He asserted that he was a fit and proper person to have
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    S.G.’s temporary and ongoing physical care, custody, and con-
    trol. James further asserted that it was in S.G.’s best interests
    to continue to reside with James and to have James maintain
    an in loco parentis relationship with her.
    In a separate motion filed the same day, James sought tem-
    porary legal and physical custody of S.G. during the pendency
    of the underlying proceedings.
    Attached to the complaint and the motion were notices that
    a hearing was set for February 7, 2020.
    7. Gabriel’s Response to James’
    Complaint and Motion
    On February 7, 2020, Gabriel filed a response to James’
    motions. Gabriel objected to the motion to intervene and any
    change to the January 31 temporary custody order placing S.G.
    with Gabriel, though he did not specifically challenge the fac-
    tual allegations made in the complaint to intervene.
    Gabriel also asserted that he did not receive the motions
    in a timely manner and that an additional evidentiary hearing
    would be required if the court deemed it necessary to con-
    sider them.
    8. Hearing on Complaint
    to Intervene
    At the February 7, 2020, hearing on the complaint to inter-
    vene, the court explained that it was focused on whether to
    allow James to intervene under in loco parentis. It would dis-
    regard James’ request for custody or parenting time until the
    question of intervention was settled.
    (a) James’ Affidavit
    Over Gabriel’s objection, the court allowed James to submit
    an affidavit, which was entered into evidence as exhibit 2,
    for the purpose of the motion to intervene. James signed the
    affidavit, and a notary public also signed the affidavit as hav-
    ing been subscribed and sworn before the notary on February
    5, 2020.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    In the affidavit, James stated that S.G. had lived in his
    home since she was born up until Gabriel came to retrieve her
    on January 31, 2020, pursuant to the court’s temporary order
    of custody.
    James had “treated [S.G] as if she were my own daughter.”
    James averred that he had provided all of S.G.’s care, paid for
    her expenses, and fed and clothed her.
    James elaborated that although Gabriel had lived with S.G.
    at James’ home immediately after she was born, Gabriel left
    when she was 4 months old. Since November 2016, Gabriel
    “has been absent from [S.G.’s] life,” “occasionally” com-
    ing around to see her but for no more than a week at a time.
    Gabriel had “paid no support.”
    James stated that Gabriel has abused illegal drugs since high
    school and has “never had consistent living arrangements.”
    James described that in November 2019, Gabriel indicated he
    wanted to be involved in S.G.’s life, but “he was continually
    late for visits, distracted on his phone, would leave visits early,
    or not show up at all.”
    James described that to his knowledge, Gabriel currently
    lived with his girlfriend in a room in a basement, which room
    he presumably was sharing with S.G. He noted that the last
    time he had visited where Gabriel lived, the home’s owner
    refused to turn on the heat and, as a result, the basement was
    around 50 degrees. James also expressed concern that Gabriel
    had “money problems and may not be able to afford the food
    and care necessary for [S.G.]” Further, Gabriel and his “room-
    mate” work nights, and James did not “know who cares for
    [S.G.] during the day.”
    As for Arleene, James averred that she also lived with S.G.
    at James’ home after S.G. was born. But “Arleen[e] has moved
    away on several occasions, often for many months at a time.”
    According to James, she did so without warning and would
    leave S.G. and her other children at James’ house. James did
    not otherwise elaborate on how much time Arleene had spent
    living with S.G. in James’ home or when she lived there.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    (b) Gabriel’s Affidavit
    At the February 7, 2020, hearing, the court granted Gabriel
    leave to submit his own affidavit by February 11, which
    the court stated would be received as exhibit 3. The court
    explained it would disregard any hearsay, but would receive
    Gabriel’s affidavit even if James had an objection to it; the
    court would receive it “in the same fashion” as it was receiving
    James’ affidavit.
    Gabriel filed an affidavit on February 10, 2020. It is con-
    tained in the transcript. However, the bill of exceptions does
    not reflect the receipt of Gabriel’s affidavit as an exhibit.
    Gabriel averred in his affidavit that at “various times,”
    he had lived with S.G. at the Leawood Drive residence with
    James. Gabriel explained that this arrangement occurred
    because Gabriel “thought that it would be in the best interest
    of my daughter in that I was having difficulties with drugs,
    and not maintaining regular employment.” Gabriel averred that
    he had been “clean and sober for over seven months.” Gabriel
    attached a negative drug screen.
    Gabriel averred that he and his fiance were living at Gabriel’s
    uncle’s home, where S.G. had her own room. In a week, he
    and his fiance would be moving to their own residence, where
    S.G. would again have her own room.
    (c) February 27, 2020, Order
    Denying Intervention
    A pretrial hearing was subsequently held on February
    26, 2020. Gabriel and James were represented. Arleene did
    not appear. The court acknowledged that Gabriel had com-
    pleted parenting classes and that Arleene had been exercis-
    ing visitation.
    The following day, on February 27, 2020, the court over-
    ruled James’ motion to intervene. The court found that the
    allegations in James’ petition to intervene were not verified or
    signed by James and that they lacked “temporal proximity with
    the current action between [Arleene] and [Gabriel].”
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    The court acknowledged James’ averments in his affida-
    vit entered into evidence as exhibit 2, but found that its
    prior November 26, 2019, temporary custody order, Gabriel’s
    affidavit, the affidavits provided at the hearings previously
    held, and the pleadings in this and a companion case all por-
    trayed the matter “in a different light.” The court observed that
    “[a]bsent from these documents is any involvement of [James]
    to the extent [he] claims.”
    According to the court, the prior child support order in the
    companion docket and its prior order placing temporary cus-
    tody of S.G. with Gabriel combined with James’ pleading and
    affidavit to show that S.G. is no longer in James’ care and that
    thus, any in loco parentis status had been “extinguished.”
    The court noted that James had not sought visitation pursu-
    ant to 
    Neb. Rev. Stat. § 43-1802
     (Reissue 2016) and that James
    could address any concerns for S.G.’s safety through Child
    Protective Services.
    James appeals the February 27, 2020, order.
    III. ASSIGNMENT OF ERROR
    James assigns that the district court erred in denying his
    complaint to intervene.
    IV. STANDARD OF REVIEW
    [1] Whether a party has the right to intervene in a proceed-
    ing is a question of law. 1 When reviewing questions of law, an
    appellate court has an obligation to resolve the questions inde-
    pendently of the conclusion reached by the trial court. 2
    [2] For purposes of ruling on a motion for leave to inter-
    vene, a court must assume that the intervenor’s factual allega-
    tions set forth in the complaint are true. 3
    1
    Jeffrey B. v. Amy L., 
    283 Neb. 940
    , 
    814 N.W.2d 737
     (2012).
    2
    
    Id.
    3
    Streck, Inc. v. Ryan Family, 
    297 Neb. 773
    , 
    901 N.W.2d 284
     (2017).
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    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    V. ANALYSIS
    [3-5] Intervention was unknown both at common law and in
    equity, and is a creature of statute. 4 The intervention statutes
    are to be liberally construed. 5 The right to intervene pursuant
    to statute is absolute. 6
    Under 
    Neb. Rev. Stat. § 25-330
     (Reissue 2016), “interven-
    tion shall be by complaint,” as opposed to through a motion,
    and is governed by the rules governing pleadings. 7 That stat-
    ute provides:
    The intervention shall be by complaint, which shall set
    forth the facts on which the intervention rests, and all the
    pleadings therein shall be governed by the same rules as
    other pleadings provided for in Chapter 25. If such com-
    plaint is filed during term, the court shall direct the time
    in which answers thereto shall be filed. 8
    
    Neb. Rev. Stat. § 25-328
     (Reissue 2016) elaborates that any
    person who claims an interest in the matter may become a
    party before trial commences:
    Any person who has or claims an interest in the mat-
    ter in litigation, in the success of either of the parties to
    an action, or against both, in any action pending or to be
    brought in any of the courts of the State of Nebraska, may
    become a party to an action between any other persons
    or corporations, either by joining the plaintiff in claiming
    what is sought by the complaint, or by uniting with the
    defendants in resisting the claim of the plaintiff, or by
    demanding anything adversely to both the plaintiff and
    defendant, either before or after issue has been joined in
    the action, and before the trial commences.
    4
    Ruzicka v. Ruzicka, 
    262 Neb. 824
    , 
    635 N.W.2d 528
     (2001).
    5
    
    Id.
    6
    
    Id.
    7
    See State ex rel. Lanman v. Board of Cty. Commissioners, 
    277 Neb. 492
    ,
    
    763 N.W.2d 392
     (2009).
    8
    § 25-330 (emphasis supplied).
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    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    Lastly, under 
    Neb. Rev. Stat. § 25-329
     (Reissue 2016), “The
    court shall determine upon the intervention at the same time
    that the action is decided, and if the claim of the interve-
    nor is not sustained, the intervenor shall pay all costs of
    the intervention.”
    [6,7] We have explained that under this statutory scheme,
    while intervention under § 25-328 is a matter of right, the
    court may make a preliminary determination whether the com-
    plaint in intervention sufficiently alleges the requisite interest. 9
    A court has authority to exclude from the case an intervenor
    whose pleadings do not disclose a direct interest in the matter
    in litigation. 10 But a court must assume that the intervenor’s
    factual allegations set forth in the complaint are true. 11
    [8-11] As a prerequisite to intervention, the intervenor must
    have a direct and legal interest of such character that the inter-
    venor will lose or gain by the direct operation and legal effect
    of the judgment which the court may render in the action. 12 An
    indirect, remote, or conjectural interest in the result of a suit
    is not enough to establish intervention as a matter of right. 13 A
    prospective intervenor can raise his or her claims or defenses,
    but those claims or defenses must involve the same core issue
    as the claims between the existing parties. 14 Thus, for a court
    as a preliminary matter to permit intervention as a matter
    of right, the intervenor must plead some interest in the sub-
    ject matter of the litigation to give him or her standing in
    court, describing the ultimate facts evidencing the intervenor’s
    9
    See, Kirchner v. Gast, 
    169 Neb. 404
    , 
    100 N.W.2d 65
     (1959); Drainage
    District v. Kirkpatrick-Pettis Co., 
    140 Neb. 530
    , 
    300 N.W. 582
     (1941);
    John P. Lenich, Nebraska Civil Procedure § 16:8 (2020).
    10
    Kirchner v. Gast, 
    supra note 9
    .
    11
    See Streck, Inc. v. Ryan Family, 
    supra note 3
    .
    12
    In re Interest of Enyce J. & Eternity M., 
    291 Neb. 965
    , 
    870 N.W.2d 413
    (2015).
    13
    
    Id.
    14
    Streck, Inc. v. Ryan Family, 
    supra note 3
    .
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    CARROLL v. GOULD
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    308 Neb. 12
    interest in the matter of litigation; otherwise, the intervenor
    is a mere interloper and wholly incompetent to challenge the
    contentions of the opposing parties. 15
    In Kirchner v. Gast, we explained that § 25-329 describes
    the final determination of the merits on the complaint in inter-
    vention and is only applicable after an intervenor has met the
    requirements of § 25-328 by pleading the required interest in
    the matter in litigation. 16 Section 25-329 “does not apply to a
    decision of the preliminary question of the sufficiency of the
    petition in intervention.”
    We indicated in Kirchner that the proper approach to attack
    a complaint in intervention is to file a demurrer, which, if
    sustained, would prevent the intervenor from participating
    in the trial. Only if the demurrer is overruled will the ques-
    tion of whether the pleadings and proof establish that the
    party seeking to intervene has an actual interest in the subject
    of the controversy later be determined, when the action is
    finally decided. 17
    [12] We no longer have demurrers. 18 The current procedure
    to challenge a pleading is to file a motion to dismiss for fail-
    ure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) or
    a motion for judgment on the pleadings under § 6-1112(c).
    Nevertheless, the fact remains that the statutory scheme
    requires that intervention initially be determined on the plead-
    ings by assuming the truth of the allegations therein. Any
    factual findings relating to those allegations do not occur until
    a subsequent evidentiary hearing upon a motion for summary
    judgment or at trial. 19 In the event the allegations of the com-
    plaint in intervention turn out to be untrue, the intervenor will
    be taxed the costs of the intervention.
    15
    See County of Nance v. Thomas, 
    146 Neb. 640
    , 
    20 N.W.2d 925
     (1945).
    16
    See Kirchner v. Gast, 
    supra note 9
    .
    17
    See 
    id.
    18
    See 
    Neb. Rev. Stat. § 25-801.01
     (Reissue 2016).
    19
    See Lenich, supra note 9.
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    CARROLL v. GOULD
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    308 Neb. 12
    No party moved for summary judgment in this case, and
    the February 7, 2020, hearing was not, in any event, a proper
    evidentiary hearing. Gabriel objected that there was inad-
    equate time to respond and prepare for the hearing, and there
    is little indication the parties understood the February 7 hear-
    ing to be their only opportunity to present proof and litigate
    the merits of James’ claim to in loco parentis status. Further,
    while the district court stated at the hearing that it would
    allow Gabriel to subsequently file an affidavit, the affidavit
    was never admitted into evidence, but was merely file stamped
    with the court. An affidavit filed in the office of the clerk of the
    district court and made part of the transcript, but which was not
    marked and received as evidence and is not contained in the
    bill of exceptions, is not evidence. 20
    Gabriel did not file a motion to dismiss for failure to state a
    claim under § 6-1112(b)(6) nor a motion for judgment on the
    pleadings under § 6-1112(c); rather, Gabriel filed a response in
    which he asserted a generalized objection. Where no motion
    is filed under § 6-1112, a hearing and ruling on a complaint
    to intervene is not required any more than it would be for any
    other complaint, though we have indicated that a court may
    exercise sua sponte its authority to exclude from the case an
    intervenor whose pleadings do not disclose a direct interest in
    the matter in litigation. 21 Here, we will assume that the parties
    and the court treated Gabriel’s objection as a motion to dis-
    miss under § 6-1112(b)(6). But regardless of whether this was
    a determination on a motion to dismiss or on the court’s sua
    sponte consideration of the complaint in intervention, we agree
    with James that the district court, rather than making factual
    findings, should have determined the matter of intervention on
    the pleadings.
    20
    See, Bohling v. Bohling, 
    304 Neb. 968
    , 
    937 N.W.2d 855
     (2020); Peterson
    v. George, 
    168 Neb. 571
    , 
    96 N.W.2d 627
     (1959).
    21
    See, Kirchner v. Gast, 
    supra note 9
    ; Drainage District v. Kirkpatrick-
    Pettis Co., supra note 9.
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    CARROLL v. GOULD
    Cite as 
    308 Neb. 12
    [13] We note that while a court may take judicial notice of
    prior filings that are of public record without converting the
    matter into an evidentiary hearing on the underlying merits
    of a pleading, 22 such judicial notice is limited to the fact of
    the filings’ existence as opposed to the truth of the matters con-
    tained therein. 23 To the extent the court determined a disputed
    fact that Arleene had actually taken full custody of the child
    pur­suant to the court’s prior orders, not only do the parties
    agree this did not occur, but doing so was outside the scope
    of judicial notice in relation to determining upon the pleadings
    whether to allow intervention.
    [14] As for Gabriel’s taking custody of the child on January
    31, 2020, there is no dispute that the court’s January 31 order
    granting Gabriel temporary custody was carried out. And the
    complaint to intervene alleges only that James had custody up
    until January 31. However, the preliminary determination of
    standing to intervene is made at the time of the filing of the
    complaint to intervene. 24
    We have never held that in loco parentis status can be
    involuntarily extinguished from one day to the next, let alone
    from one hour to the next. 25 Even to the extent the district
    22
    See, In re Interest of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
    (2017); DMK Biodiesel v. McCoy, 
    285 Neb. 974
    , 
    830 N.W.2d 490
     (2013).
    See, also, Gottsch v. Bank of Stapleton, 
    235 Neb. 816
    , 
    458 N.W.2d 443
    (1990); State v. Norwood, 
    203 Neb. 201
    , 
    277 N.W.2d 709
     (1979).
    23
    See Gottsch v. Bank of Stapleton, 
    supra note 22
    .
    24
    See, Streck, Inc. v. Ryan Family, 
    supra note 3
    ; In re Interest of Nettie F.,
    
    295 Neb. 117
    , 
    887 N.W.2d 45
     (2016); Drainage District v. Kirkpatrick-
    Pettis Co., 
    supra note 9
    . See, also, Wayne L. Ryan Revocable Trust v.
    Ryan, 
    297 Neb. 761
    , 
    901 N.W.2d 671
     (2017); School Dist. of Gering v.
    Stannard, 
    196 Neb. 367
    , 
    242 N.W.2d 889
     (1976); Essay v. Essay, 
    180 Neb. 47
    , 
    141 N.W.2d 436
     (1966).
    25
    See, In re Change of Name of Whilde, 
    298 Neb. 510
    , 
    904 N.W.2d 707
     (2017); Whilde v. Whilde, 
    298 Neb. 473
    , 
    904 N.W.2d 695
     (2017);
    Hamilton v. Foster, 
    260 Neb. 887
    , 
    620 N.W.2d 103
     (2000); State on behalf
    of Lilliana L. v. Hugo C., 
    26 Neb. App. 923
    , 
    924 N.W.2d 743
     (2019).
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    court could hypothetically resolve through judicial notice the
    factual question of in loco parentis status before allowing
    intervention as a matter of right based on the allegations of the
    complaint, the order of temporary custody was, for all practical
    purposes, simultaneous to the complaint to intervene. As such,
    it did not support the district court’s conclusion that the order
    extinguished any prior in loco parentis status.
    [15-17] We determine as a matter of law, based on the alle-
    gations of the pleadings, that James has a right to intervene.
    A person standing in loco parentis to a child is one who has
    put himself or herself in the situation of a lawful parent by
    assuming the obligations incident to the parental relationship,
    without going through the formalities necessary to a legal
    adoption, and the rights, duties, and liabilities of such person
    are the same as those of the lawful parent. 26 The assumption of
    the relationship of in loco parentis is a question of intention,
    which may be shown by the acts and declarations of the person
    alleged to stand in that relationship. 27 In order to stand in loco
    parentis, one must assume all obligations incident to the paren-
    tal relationship. 28 James alleged that he had assumed all the
    obligations incident to S.G.’s care and that it was his intention
    to have a parent-child relationship with her.
    The complaint in intervention alleged sufficient facts to
    establish James’ direct and legal interest in the litigation of
    such character that he would lose or gain by the direct opera-
    tion and legal effect of the judgment that the court may render
    in the action. The district court erred in ruling that James
    did not stand in loco parentis and in denying the complaint
    in intervention.
    Whether as a matter of fact James stands in loco parentis
    and whether, if so, that relationship should continue can be
    determined later, following an appropriate hearing.
    26
    Hamilton v. Foster, 
    supra note 25
    .
    27
    
    Id.
    28
    
    Id.
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    We reverse, and remand with directions for the court to
    allow the intervention and recognize James as a party to the
    litigation. In the event the allegations of the complaint are later
    found to be untrue, it shall tax costs against James pursuant
    to § 25-329.
    VI. CONCLUSION
    For the foregoing reasons, we reverse, and remand with
    directions.
    Reversed and remanded with directions.