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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/05/2022 09:07 AM CDT
- 772 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
WILLIAMS v. WILLIAMS
Cite as 311 Neb. 772Katherine 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. 772Miller-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. 772minor 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. 772Katherine’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. 772682 (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. 772that 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. 772the 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. 772to 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. 772without 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. 772such 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. 772in 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.