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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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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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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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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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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
Cite as 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
Cite as 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. Ct. 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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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CARROLL v. GOULD
Cite as 308 Neb. 12
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.