Heiden v. Norris , 300 Neb. 171 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/24/2018 01:09 AM CDT
- 171 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171Frederick Heiden and A nn Heiden, husband and wife,
appellees, v. Tracy J. Norris, appellant.
___ N.W.2d ___
Filed June 8, 2018. No. S-17-689.
1. Visitation: Appeal and Error. Determinations concerning grandparent
visitation are initially entrusted to the discretion of the trial court, whose
determinations on appeal will be reviewed de novo on the record and
affirmed in the absence of an abuse of the trial court’s discretion.
2. Standing. Under the doctrine of standing, a court may decline to deter-
mine the merits of a legal claim because the party advancing it is not
properly situated to be entitled to its judicial determination.
3. Statutes. Statutory interpretation presents a question of law.
4. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of words which are plain, direct, and
unambiguous.
5. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court determines and gives effect to the purpose and intent of the
Legislature as ascertained from the entire language considered in its
plain, ordinary, and popular sense.
6. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless.
7. ____. The whole and every part of a statute must be considered in fixing
the meaning of any of its parts.
8. Statutes: Intent. In construing a statute, a court looks to the statutory
objective to be accomplished, the evils and mischiefs sought to be rem-
edied, and the purpose to be served. A court must then reasonably or
liberally construe the statute to achieve the statute’s purpose, rather than
construing it in a manner that defeats the statutory purpose.
9. Statutes: Courts. Generally, statutes in derogation of the common law
are to be strictly construed.
- 172 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 17110. Visitation: Statutes: Courts. Grandparent visitation did not exist at
common law, and thus should be strictly limited to the definition pro-
vided by law.
Appeal from the District Court for Hamilton County: R achel
A. Daugherty, Judge. Order vacated, and cause remanded with
directions to dismiss.
James M. Buchanan, P.C., L.L.O., for appellant.
Scott D. Grafton, of Grafton Law Office, P.C., L.L.O., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Welch, Judge.
Heavican, C.J.
INTRODUCTION
Frederick Heiden and Ann Heiden filed a complaint to
establish grandparent visitation. Visitation was granted. Tracy
J. Norris, the biological father of the children impacted by the
order, has appealed. The primary issue on appeal is whether
the Heidens are grandparents for purposes of the grandpar-
ent visitation statutes, Neb. Rev. Stat. §§ 43-1801 to 43-1803
(Reissue 2016). We vacate the order of visitation and remand
the cause with directions to dismiss.
BACKGROUND
Tracy and Katherine Norris were divorced in 2016 in
Hamilton County, Nebraska. The couple had three children
together. Katherine died on July 14, 2016. Since that time, the
children have resided with Tracy in Fort Collins, Colorado;
the Heidens live in Hampton, Nebraska. The record includes
a partial transcript from Tracy and Katherine’s divorce pro-
ceeding in which the Heidens acknowledge that they were
not Katherine’s legal (adoptive or biological) parents, but had
raised Katherine since she was 3 years of age.
On October 21, 2016, the Heidens sought grandparent visita-
tion, alleging that they were
- 173 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171grandparents of the minor children as the context requires
as they have acted as the grandparents of the minor chil-
dren during their entire lives. Prior to the death of the
minor children’s mother, a significant beneficial relation-
ship existed between the minor children and the [Heidens]
as they resided together from approximately November
of 2013 to July 14th, 2016 and the [Heidens] had signifi-
cant contact with each of the children from the time they
were born.
(Emphasis supplied.) Tracy was apparently served with this
complaint, but did not appear. An order granting default judg-
ment and visitation to the Heidens was entered on January
5, 2017.
On January 11, 2017, Tracy filed a motion to alter or amend,
and on February 2, he filed a motion to vacate, alleging that
the Hamilton County District Court did not have jurisdiction.
At the hearing, Tracy explained that he did not respond to the
complaint because he did not think the Heidens would be able
to establish that they were the children’s grandparents.
Following the district court’s conclusion that it had juris-
diction, Tracy filed another motion on May 8, 2017, entitled
“Motion to Vacate, Motion to Alter or Amend, or, Notice of
Appeal.” On June 29, the district court sustained this motion in
part, amending the prior visitation order. Tracy appeals.
ASSIGNMENT OF ERROR
Tracy assigns that the district court erred in finding that the
Heidens had standing to bring this action.
STANDARD OF REVIEW
[1] Determinations concerning grandparent visitation are
initially entrusted to the discretion of the trial court, whose
determinations on appeal will be reviewed de novo on the
record and affirmed in the absence of an abuse of the trial
court’s discretion.1
1
See Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
- 174 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171ANALYSIS
Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it.2 The district court
concluded that it had jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act.3 Having reviewed
the record, we agree.4
We turn to Tracy’s sole argument on appeal that the
Heidens lacked standing to bring an action for grandpar-
ent visitation. Tracy contends that the Heidens are unable to
prove that they are the children’s grandparents for purposes of
Nebraska’s grandparent visitation statutes because they were
not Katherine’s “biological or adoptive parents” as required by
those statutes.5
[2] Tracy conflates standing with the merits of the Heidens’
claim. Under the doctrine of standing, a court may decline
to determine the merits of a legal claim because the party
advancing it is not properly situated to be entitled to its judi-
cial determination.6 But as we have said previously, the focus
of the standing inquiry is “on the party, not the claim itself.”7
For that very reason, in considering standing, the legal and
factual validity of the claim presented must be assumed.8
Here, if the Heidens’ assertions that they are grandparents
2
Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
3
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016).
4
See § 43-1239.
5
Brief for appellant at 7. See § 43-1801.
6
Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010).
7
Id. at 541-42, 788 N.W.2d at 260.
8
See, e.g., Cotrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir. 2017);
Delaware Dept. of Nat. Resources v. F.E.R.C., 558 F.3d 575 (D.C. Cir.
2009) (citing Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d
343 (1975)); Initiative and Referendum Institute v. Walker, 450 F.3d 1082(10th Cir. 2006); Mr. Furniture v. Barclays American/Commercial Inc.,
919 F.2d 1517 (11th Cir. 1990).
- 175 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171within the meaning of § 43-1801 and entitled to visitation
under the statute are assumed to be valid, it becomes plain that
the Heidens are the proper parties to bring such a claim and
thus have standing.
But the crux of Tracy’s argument is that the Heidens were
not entitled to an order of visitation. Tracy contends that
because the Heidens were not Katherine’s legal parents, they
are not grandparents under our statutes and thus are not entitled
to consideration of their request for visitation. We turn to that
contention, which is a matter of statutory interpretation.
Section 43-1802 sets forth a grandparent’s right to visitation
in part as follows:
(1) 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.
(2) In determining whether a grandparent shall be
granted visitation, the court shall require evidence con-
cerning the beneficial nature of the relationship of the
grandparent to the child. The evidence may be presented
by affidavit and shall demonstrate that a significant ben-
eficial relationship exists, or has existed in the past,
between the grandparent and the child and that it would
be in the best interests of the child to allow such rela-
tionship to continue. Reasonable rights of visitation may
be granted when the court determines by clear and con-
vincing evidence that there is, or has been, a significant
beneficial relationship between the grandparent and the
child, that it is in the best interests of the child that such
relationship continue, and that such visitation will not
adversely interfere with the parent-child relationship.
- 176 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171As relevant to this appeal, § 43-1801 provides that “unless the
context otherwise requires, grandparent shall mean the biologi-
cal or adoptive parent of a minor child’s biological or adop-
tive parent.”
This court has found Nebraska’s grandparent visitation
statutes to be constitutional, relying in part on the limitation
of only biological and adoptive grandparents as those entitled
to visitation, as well as a limitation of those circumstances
in which a grandparent could seek visitation and a high
standard of proof required to show entitlement to an order
of visitation.9
[3-5] The issue is one of statutory interpretation, which
presents a question of law.10 Statutory language is to be given
its plain and ordinary meaning, and an appellate court will
not resort to interpretation to ascertain the meaning of words
which are plain, direct, and unambiguous.11 In discerning the
meaning of a statute, a court determines and gives effect to
the purpose and intent of the Legislature as ascertained from
the entire language considered in its plain, ordinary, and popu-
lar sense.12
[6-8] A court must attempt to give effect to all parts of a
statute, and if it can be avoided, no word, clause, or sentence
will be rejected as superfluous or meaningless.13 The whole and
every part of a statute must be considered in fixing the mean-
ing of any of its parts.14 In construing a statute, a court looks
to the statutory objective to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose to be served.
A court must then reasonably or liberally construe the statute
9
Hamit v. Hamit, supra note 1.
10
Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018).
11
Id.12
Id.13
Id.14
Id.- 177 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171to achieve the statute’s purpose, rather than construing it in a
manner that defeats the statutory purpose.15
[9,10] “Generally, statutes in derogation of the common law
are to be strictly construed.”16 Grandparent visitation did not
exist at common law,17 and thus should be strictly limited to the
definition provided by law. Here, the plain meaning of the term
“grandparent” excludes the Heidens.
The Heidens argue, however, that the term “grandparent”
means a biological or adoptive parent of the child’s biological
or adoptive parent and that in this case, the “context” shows
that they are the children’s grandparents. We disagree.
A review of our case law suggests that the “context” referred
to in § 43-1801 is not the factual circumstances presented by
a case, but the context of the statutory language itself.18 In Pig
Pro Nonstock Co-op v. Moore,19 we examined, but ultimately
rejected, cases from other jurisdictions that went beyond the
context of the statute to the facts in order to determine whether
a cooperative was designated “nonprofit” for purposes of a stat-
utory scheme. As another court has since explained: “The term
‘context’ in the statutory phrase ‘unless the context otherwise
requires’ means the context ‘within which [a defined statutory
term] is used within the statute’s substantive provisions.’”20
15
Id.
16
73 Am. Jur. 2d Statutes § 181 at 415 (2012).
17
See Hamit v. Hamit, supra note 1.
18
See, Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017); State
v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016); State v. Covey, 290
Neb. 257, 859 N.W.2d 558 (2015); First Data Corp. v. State, 263 Neb.
344, 639 N.W.2d 898 (2002). But see School Dist. of Omaha v. State
Board of Education, 187 Neb. 76, 187 N.W.2d 592 (1971).
19
Pig Pro Nonstock Co-op v. Moore, 253 Neb. 72, 568 N.W.2d 217 (1997).
20
People v. Mendenhall, 363 P.3d 758, 766 (Colo. App. 2015), quoting Pima
Financial Service Corp. v. Selby, 820 P.2d 1124, 1128 (Colo. App. 1991).
See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 113 S. Ct. 716, 121 L.Ed.2d 656 (1993).
- 178 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
HEIDEN v. NORRIS
Cite as 300 Neb. 171Moreover, we note that a narrow definition of the term
“grandparent” was a factor in our conclusion that such visi-
tation statutes were constitutional. We specifically noted in
Hamit v. Hamit 21 that “Nebraska’s statutes are . . . narrowly
drawn . . . and explicitly protect parental rights while taking
the child’s best interests into consideration.”
Because the plain language of the statutes provides that a
grandparent is defined as the biological or adoptive parent of
a minor child’s biological or adoptive parent, and because the
Heidens failed to show that they were Katherine’s biological
or adoptive parents—indeed the record in this case affirm­
atively shows that they were not Katherine’s biological or
adoptive parents—the Heidens are not entitled to an order of
visitation under §§ 43-1801 to 43-1803. The district court’s
order of visitation is vacated, and the cause is remanded to the
district court with directions to dismiss.
CONCLUSION
The district court erred in granting the Heidens’ request for
grandparent visitation. We vacate the order of visitation, and
remand the cause with directions to dismiss.
Order vacated, and cause remanded
with directions to dismiss.
21
Hamit v. Hamit, supra note 1, 271 Neb. at 677, 715 N.W.2d at 527.