Davis v. Moats , 308 Neb. 757 ( 2021 )


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    04/16/2021 09:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    DAVIS v. MOATS
    Cite as 
    308 Neb. 757
    Latonne Davis, appellee, v.
    Victoria E. Moats, appellant.
    ___ N.W.2d ___
    Filed March 26, 2021.    No. S-20-387.
    1. Visitation: Appeal and Error. Determinations concerning grandpar-
    ent visitation rights are initially entrusted to the discretion of the trial
    judge, whose determination, on appeal, shall be reviewed de novo
    on the record and affirmed in the absence of an abuse of the trial
    judge’s discretion.
    2. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    3. Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    4. Visitation: Statutes. In Nebraska, grandparent visitation is controlled
    by statute.
    5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
    power of a tribunal to hear and determine a case in the general class or
    category to which the proceedings in question belong and to deal with
    the general subject matter involved.
    6. ____: ____. Subject matter jurisdiction includes a court’s power to
    determine whether it has the authority to address a particular question
    within a general class or category that it assumes to decide or to grant
    the particular relief requested.
    7. Jurisdiction: Parties: Waiver. The failure to join an indispensable
    party to a case deprives the court of subject matter jurisdiction and can-
    not be waived.
    8. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
    at any time by any party or by the court sua sponte.
    9. ____: ____. A court action taken without subject matter jurisdiction
    is void.
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    10. Parties: Words and Phrases. Necessary parties are parties who have
    an interest in the controversy, and should ordinarily be joined unless
    their interests are separable so that the court can, without injustice, pro-
    ceed in their absence. The inclusion of a necessary party is within the
    trial court’s discretion.
    11. Parties: Equity: Words and Phrases. Indispensable parties are par-
    ties whose interest is such that a final decree cannot be entered without
    affecting them, or that termination of controversy in their absence would
    be inconsistent with equity. There is no discretion as to the inclusion of
    an indispensable party.
    12. Parties. A trial court should cause an action to be properly amended
    to bring in the indispensable party, or dismiss it, if the amendment is
    not made.
    13. ____. Whether a person is “indispensable,” that is, whether a particular
    lawsuit must be dismissed in the absence of that person, can be deter-
    mined only in the context of particular litigation.
    14. ____. The decision whether to dismiss (i.e., the decision whether the
    person missing is “indispensable”) must be based on factors varying
    with the different cases, some such factors being substantive, some pro-
    cedural, some compelling by themselves, and some subject to balancing
    against opposing interests.
    15. Constitutional Law: Due Process: Parent and Child. The relationship
    between parent and child is constitutionally protected, and proceedings
    which impact that relationship must afford both parents due process
    of law.
    16. Constitutional Law: Parental Rights: Visitation. The biological
    mother or father of a minor child has a constitutionally protected,
    fundamental right to make decisions concerning the care, custody, and
    control of the child, and actions for grandparent visitation may affect
    that right.
    17. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a
    court which lacks subject matter jurisdiction is void and may be attacked
    at any time in any proceeding.
    18. Jurisdiction. Where a court has no jurisdiction over the subject matter
    of the action, all proceedings in such action are void.
    19. Judgments: Contempt. Refusal to obey a void order or judgment is
    not contempt.
    20. Jurisdiction: Appeal and Error. Where a lower court lacks subject
    matter jurisdiction to adjudicate the merits of a claim, issue, or question,
    an appellate court also lacks the power to determine the merits of the
    claim, issue, or question presented to the lower court.
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    DAVIS v. MOATS
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    21. ____: ____. When an appellate court is without jurisdiction to act, the
    appeal must be dismissed.
    22. ____: ____. An appellate court has the power to determine whether it
    lacks jurisdiction over an appeal because the lower court lacked juris-
    diction to enter the order; to vacate a void order; and, if necessary, to
    remand the cause with appropriate directions.
    23. Appeal and Error. An appellate court is not obligated to engage in an
    analysis which is not needed to adjudicate the controversy before it.
    Appeal from the District Court for Madison County: James
    G. Kube, Judge. Vacated and remanded for further proceedings.
    Matt Catlett, of Law Office of Matt Catlett, for appellant.
    Rodney J. Palmer, of Palmer Law Group, L.L.C., for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Latonne Davis filed a petition seeking visitation with her
    grandchild. The district court ordered the mother, Victoria E.
    Moats, to allow grandparent visitation and found her in con-
    tempt when she refused. The court denied Moats’ motion to
    vacate and strike the order granting grandparent visitation,
    which asserted the court lacked subject matter jurisdiction over
    the case. Moats argues on appeal that the court lacked jurisdic-
    tion to order visitation, because the child’s biological father
    was an indispensable party who had not been brought into
    the case. We agree that the biological father was an indispen­
    sable party. As a result, the district court lacked subject matter
    jurisdiction. Therefore, we vacate the visitation order and the
    contempt order and remand the matter to the district court for
    further proceedings consistent with this opinion.
    BACKGROUND
    This appeal involves Davis, the paternal grandmother of the
    minor child; Moats, the mother of the minor child; and Tate
    Pirnie, the biological father of the minor child. Moats and
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    DAVIS v. MOATS
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    Pirnie never married. There is no dispute that Pirnie is the bio-
    logical father of the minor child or that Moats is the custodial
    parent of the minor child.
    On May 18, 2018, Davis petitioned the district court of
    Madison County, Nebraska, requesting regular overnight week-
    end visitation, a weeklong summer visitation, regular corre-
    spondence, and regular telephone conversations with the minor
    child. Davis alleged that following the breakup of Moats and
    Pirnie, she has not been allowed any visitation or telephone
    contact with the minor child. Davis named Moats as the only
    defendant in the action, and only Moats was served a copy of
    the petition.
    At trial, Davis testified that she shares a loving bond with
    the minor child and that they do various activities together.
    Moats testified that she did not want Davis to have overnight
    visitation with the minor child because of Pirnie, who, up until
    he was sentenced for an unrelated criminal conviction, resided
    with Davis. Moats explained that she did not want “anything
    to happen [to the child] sexually,” because “[Pirnie was] get-
    ting charged for [sexual assault of a child] right now.” Davis
    responded that although Pirnie had lived with her for the past
    several months, he was about to be sentenced in his criminal
    case and would move out of her house if he avoided incarcera-
    tion. Davis explained that she also would not want Pirnie to
    have contact with the minor child, absent a court order.
    On December 17, 2019, the district court issued an order
    finding clear and convincing evidence that a significant benefi-
    cial relationship exists between Davis and the minor child, that
    continuation of this relationship was in the best interests of the
    minor child, and that visitation between Davis and the minor
    child would not adversely interfere with Moats’ parent-child
    relationship. Thus, the district court granted Davis’ request
    for grandparent visitation, to include one weekend every other
    month; weekly telephone contact, lasting at least 30 minutes;
    one week in the summer; and 2 days during the last 2 weeks
    of December.
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    DAVIS v. MOATS
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    308 Neb. 757
    On January 28, 2020, Davis filed a motion for order to show
    cause, arguing Moats should be found in contempt for failing
    to comply with the court’s December 2019 order. Davis alleged
    that she contacted Moats on December 23, 2019, in an attempt
    to schedule a visitation, but that Moats responded that she had
    not received the court’s order and that she and the minor child
    were in Oklahoma. Davis further alleged that on December 27,
    Moats refused visitation because the child was sick with the
    flu. The court entered an order on January 29, 2020, requir-
    ing Moats to show cause as to why she should not be held
    in contempt.
    On April 10, 2020, the court found that Moats was aware
    of and understood the December 2019 order. The court found
    Moats to be in contempt of court and ordered her to allow
    visitation between Davis and the minor child, pursuant to the
    court’s previous order. The court ordered Moats to pay $500 in
    attorney fees.
    On April 20, 2020, Moats filed a motion to vacate and strike
    the order granting grandparent visitation, the order to show
    cause, and the order finding Moats in contempt and requiring
    that she pay attorney fees. Moats argued that the court’s orders
    should be stricken as void, because the court lacked subject
    matter jurisdiction. Moats argued, inter alia, that Pirnie was an
    indispensable party and that the failure to join him in the action
    deprived the court of subject matter jurisdiction. Moats also
    argued that Davis’ petition was dismissed by operation of law,
    because Davis failed to serve Pirnie with a copy of the petition
    within 180 days of the filing of the petition.
    The court held a hearing on May 5, 2020, to consider Moats’
    motion. At the hearing, Davis offered exhibits 9 and 10, the
    affidavits of Davis and Pirnie. Both exhibits averred that Pirnie
    had actual knowledge of Davis’ petition for grandparent visita-
    tion and did not have any objection to its filing.
    On May 8, 2020, the court overruled the motion to vacate
    and strike. The court noted that Moats had not complied with
    the visitation order or the order requiring the payment of
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    DAVIS v. MOATS
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    308 Neb. 757
    attorney fees, and further, the court ordered Moats to allow
    visitation between Davis and the minor child. Moats appeals.
    ASSIGNMENTS OF ERROR
    Moats assigns, restated, (1) that the December 17, 2019,
    order is void and the contempt proceedings a nullity, because
    the district court lacked subject matter jurisdiction, and (2) that
    the district court erred in receiving exhibits 9 and 10 into evi-
    dence, because they were irrelevant.
    STANDARD OF REVIEW
    [1] Determinations concerning grandparent visitation rights
    are initially entrusted to the discretion of the trial judge, whose
    determination, on appeal, shall be reviewed de novo on the
    record and affirmed in the absence of an abuse of the trial
    judge’s discretion. 1
    [2] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. 2
    [3] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law. 3
    ANALYSIS
    [4] In Nebraska, grandparent visitation is controlled by stat-
    ute. 4 Under Neb. Rev. Stat. § 43-1802(1)(c) (Reissue 2016), a
    grandparent may seek visitation with his or her minor grand-
    child if the parents of the minor child have never been mar-
    ried but paternity has been legally established. Neb. Rev. Stat.
    § 43-1803(1) (Reissue 2016) states that if the minor child’s
    parent or parents have never been married, a grandparent
    1
    Heiden v. Norris, 
    300 Neb. 171
    , 
    912 N.W.2d 758
    (2018).
    2
    In re Interest of Marcella G., 
    287 Neb. 566
    , 
    847 N.W.2d 276
    (2014).
    3
    Omaha Expo. & Racing v. Nebraska State Racing Comm., 
    307 Neb. 172
    ,
    
    949 N.W.2d 183
    (2020).
    4
    Krejci v. Krejci, 
    304 Neb. 302
    , 
    934 N.W.2d 179
    (2019).
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    DAVIS v. MOATS
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    308 Neb. 757
    seeking visitation shall file a petition in the district court in
    the county in which the minor child resides. Subsection (2)
    of § 43-1803 requires that a copy of the petition be served
    upon the parent or parents or other party having custody of the
    child and upon any parent not having custody of such child by
    personal service or in the manner provided in Neb. Rev. Stat.
    § 25-517.02 (Reissue 2016).
    Moats contends that since Davis failed to include Pirnie as
    a party in this action and failed to properly serve Pirnie with
    a copy of the petition, the district court lacked subject mat-
    ter jurisdiction to hear the matter. Davis counters that Moats
    lacks standing to raise the issues of Pirnie’s inclusion in the
    case and whether Pirnie was properly served with a copy of
    the petition.
    Subject Matter Jurisdiction
    [5-9] Subject matter jurisdiction is the power of a tribunal
    to hear and determine a case in the general class or category
    to which the proceedings in question belong and to deal with
    the general subject matter involved. 5 Subject matter jurisdic-
    tion also includes a court’s power to determine whether it has
    the authority to address a particular question within a general
    class or category that it assumes to decide or to grant the par-
    ticular relief requested. 6 The failure to join an indispensable
    party to a case deprives the court of subject matter jurisdiction
    and cannot be waived. 7 Lack of subject matter jurisdiction
    may be raised at any time by any party or by the court sua
    sponte. 8 A court action taken without subject matter jurisdic-
    tion is void. 9
    5
    Omaha Expo. & Racing, supra note 3.
    6
    Midwest Renewable Energy v. American Engr. Testing, 
    296 Neb. 73
    , 
    894 N.W.2d 221
    (2017).
    7
    See
    id. 8
        Omaha Expo. & Racing, supra note 3.
    9
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    308 Nebraska Reports
    DAVIS v. MOATS
    Cite as 
    308 Neb. 757
    Moats relies upon the Nebraska Court of Appeals’ decision
    in Beal v. Endsley 10 to support her contention that Pirnie is an
    indispensable party and that Davis’ failure to join him in the
    action deprives the district court of subject matter jurisdiction.
    In Beal, the Court of Appeals stated that “[i]n a petition filed
    pursuant to § 43-1801 et seq., in that circumstance where the
    grandchild’s parents are divorced, both parents should be made
    parties to the proceedings.” 11 However, the language in Beal
    is not dispositive here for two reasons: (1) The portion of the
    opinion Moats quotes was merely dicta addressing how the
    case should have been captioned, and (2) the noncustodial par-
    ent entered a voluntary appearance in the matter. As a result,
    we find it necessary to revisit the concepts of necessary and
    indispensable parties.
    Neb. Rev. Stat. § 25-323 (Reissue 2016) states 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 without
    the presence of other parties, the court must order them to
    be brought in.
    [10,11] In Midwest Renewable Energy v. American Engr.
    Testing, 12 we considered the application of § 25-323. In doing
    so, we noted that while, historically, this court has treated nec-
    essary parties the same as indispensable parties, the traditional
    definition of an indispensable party contained in the second
    clause of § 25-323 applies only to indispensable parties, not
    to necessary ones. We went on to explain that a “necessary
    party” and an “indispensable party” are two separate and dis-
    tinct terms. In particular, we stated that necessary parties are
    parties who have an interest in the controversy, and should
    ordinarily be joined unless their interests are separable so that
    10
    Beal v. Endsley, 
    3 Neb. Ct. App. 589
    , 
    529 N.W.2d 125
    (1995).
    11
    Id. at 592, 529
    N.W.2d at 128.
    12
    Midwest Renewable Energy, supra note 6.
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    the court can, without injustice, proceed in their absence. The
    inclusion of a necessary party is within the trial court’s discre-
    tion. 13 Indispensable parties are parties whose interest is such
    that a final decree cannot be entered without affecting them,
    or that termination of controversy in their absence would be
    inconsistent with equity. However, there is no discretion as to
    the inclusion of an indispensable party. 14
    The difference between a “necessary party” and an “indis-
    pensable party” is not a novel concept. In fact, the U.S. Supreme
    Court has long acknowledged the difference between the two.
    In an 1854 case, Shields et al. v. Barrow, 15 the Supreme Court
    outlined three different classes of parties to a bill in equity. The
    Court stated that the first class was formal parties. The Court
    then defined the second class as “[p]ersons having an interest
    in the controversy, and who ought to be made parties, in order
    that the court may act on that rule which requires it to decide
    on, and finally determine the entire controversy, and do com-
    plete justice, by adjusting all the rights involved in it.” 16 The
    Court explained that these persons were commonly referred
    to as “necessary parties,” but “if their interests are separable
    from those of the parties before the court, so that the court can
    proceed to a decree, and do complete and final justice, without
    affecting other persons not before the court, [these persons]
    are not indispensable parties.” 17 The Court further defined the
    third class as those who have “an interest of such a nature
    that a final decree cannot be made without either affecting that
    interest, or leaving the controversy in such a condition that
    its final termination may be wholly inconsistent with equity
    13
    Id. (citing J.K. Dean,
    Inc. v. KSD, Inc., 
    709 N.W.2d 22
    (S.D. 2005)). See
    Reed v. Reed, 
    277 Neb. 391
    , 
    763 N.W.2d 686
    (2009).
    14
    Id. 15
         Shields et al. v. Barrow, 58 U.S. (17 How.) 130, 
    15 L. Ed. 158
    (1854).
    16
    Id., 58
    U.S. (17 How.) at 139.
    17
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    and good conscience.” 18 The Court noted that in a case where
    the rights of those before the court are inseparable from the
    rights of those absent, the latter are indispensable parties. 19
    [12] Later, in Hoe v. Wilson, 20 the U.S. Supreme Court held
    that a court must sua sponte invoke the indispensable party
    issue even though it was not raised by a party. In doing so,
    the Court determined that a trial court should cause an action
    to be properly amended to bring in the indispensable party, or
    dismiss it, if the amendment was not made. 21
    [13,14] More recently, in Provident Bank v. Patterson, 22 the
    U.S. Supreme Court held that whether a person is “indispen­
    sable,” that is, whether a particular lawsuit must be dismissed
    in the absence of that person, can be determined only in the
    context of particular litigation. The Court went on to hold that
    the decision whether to dismiss (i.e., the decision whether the
    person missing is “indispensable”) must be based on factors
    varying with the different cases, some such factors being sub-
    stantive, some procedural, some compelling by themselves, and
    some subject to balancing against opposing interests. 23
    Most recently, in Morse v. Olmer, 24 the Court of Appeals
    applied our indispensable party jurisprudence to the very issue
    before us now. In Morse, the appellate court determined that
    the noncustodial father was an indispensable party to the action
    for grandparent visitation due to his constitutionally protected
    parental rights. As such, the appellate court held that failure
    to join the noncustodial father as a party deprived the district
    18
    Id. 19
         Shields et al., supra note 15.
    20
    Hoe v. Wilson, 76 U.S. (9 Wall.) 501, 
    19 L. Ed. 762
    (1869).
    21
    Id. 22
         Provident Bank v. Patterson, 
    390 U.S. 102
    , 
    88 S. Ct. 733
    , 
    19 L. Ed. 2d 936
         (1968).
    23
    Id. 24
         Morse v. Olmer, 
    29 Neb. Ct. App. 346
    , 
    954 N.W.2d 638
    (2021).
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    court of jurisdiction to consider the grandparents’ complaint
    for visitation.
    [15,16] Here, we, too, recognize that the relationship between
    parent and child is constitutionally protected, and proceedings
    which impact that relationship must afford both parents due
    process of law. 25 Though the record before us is not clear, none
    of the parties contest that Pirnie has been determined to be the
    biological father of the minor child. As such, he has a consti-
    tutionally protected, fundamental right to make decisions con-
    cerning the care, custody, and control of the child, and actions
    for grandparent visitation may affect that right. 26 Therefore,
    we find the district court lacked the subject matter jurisdiction
    to make a determination as to Davis’ grandparent visitation
    rights without giving Pirnie the opportunity to participate in
    the proceedings.
    Additionally, as mentioned above, § 43-1803(2) requires that
    a copy of the petition be served upon the parent or parents or
    other party having custody of the child and upon any parent not
    having custody of such child. We agree that it is clear from the
    language of § 43-1803 that both parents should be served with
    a copy of the petition in an action for grandparent visitation. As
    such, Pirnie had a statutory right to be served with a copy of
    the petition and given notice of the trial in the matter.
    Davis, through the affidavits received as exhibits 9 and 10,
    contends that Pirnie was made aware of the proceedings and
    received a copy of the petition. Additionally, Pirnie’s affidavit
    states that he did not object to Davis’ request for visitation.
    However, Pirnie’s affidavit was executed in April 2020 and
    makes no indications that he had actual notice of the pro-
    ceedings while they were occurring. Further, being aware of
    the proceedings or receiving a copy of the petition does not
    25
    Id. See, also, Quilloin
    v. Walcott, 
    434 U.S. 246
    , 
    98 S. Ct. 549
    , 
    54 L. Ed. 2d
    511 (1978).
    26
    See State on behalf of Tina K. v. Adam B., 
    307 Neb. 1
    , 
    948 N.W.2d 182
         (2020) (citing Troxel v. Granville, 
    530 U.S. 57
    , 
    120 S. Ct. 2054
    , 147 L.
    Ed. 2d 49 (2000)).
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    equate to receiving personal service of the petition as required
    by statute.
    [17] Since Pirnie was not included in the proceedings,
    the district court lacked subject matter jurisdiction to hear
    Davis’ petition for grandparent visitation. As a result, the
    December 17, 2019, order granting grandparent visitation is
    void. A judgment entered by a court which lacks subject mat-
    ter jurisdiction is void and may be attacked at any time in any
    proceeding. 27
    [18,19] Since the order granting grandparent visitation is
    void, the order finding Moats in contempt of that order is also
    void. The rule is fundamental that where the court has no juris-
    diction over the subject matter of the action, all proceedings
    in such action are void. 28 The rule is likewise well settled that
    refusal to obey a void order or judgment is not contempt. 29
    [20-22] Where a lower court lacks subject matter jurisdic-
    tion to adjudicate the merits of a claim, issue, or question, an
    appellate court also lacks the power to determine the merits
    of the claim, issue, or question presented to the lower court. 30
    When an appellate court is without jurisdiction to act, the
    appeal must be dismissed. 31 However, an appellate court has
    the power to determine whether it lacks jurisdiction over an
    appeal because the lower court lacked jurisdiction to enter
    the order; to vacate a void order; and, if necessary, to remand
    the cause with appropriate directions. 32
    Vacating the December 2019 order granting grandparent
    visitation and the April 2020 order finding Moats in con-
    tempt does not dispose of this action. The matter remains
    27
    VonSeggern v. Willman, 
    244 Neb. 565
    , 
    508 N.W.2d 261
    (1993).
    28
    Wolski v. Lippincott, 
    147 Neb. 944
    , 
    25 N.W.2d 754
    (1947).
    29
    Id. 30
         Kozal v. Nebraska Liquor Control Comm., 
    297 Neb. 938
    , 
    902 N.W.2d 147
         (2017).
    31
    Id. 32
         Id.
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    pending before the district court unless Moats’ other arguments
    have merit.
    Untimely Service
    Moats also argues that since Pirnie was not served within
    180 days of the commencement of Davis’ action, the mat-
    ter was dismissed by operation of law. 33 Under § 25-217(2),
    each defendant in an action must be properly served within
    180 days of the commencement of the action. Subsection (3)
    of § 25-217 states that if any defendant is not properly served
    within the time specified in subsection (2), the action “against
    that defend­ant” is dismissed by operation of law. (Emphasis
    supplied.)
    Contrary to Moats’ contention, nothing within § 25-217
    states that the action is dismissed against all the defendants or
    that the action stands dismissed as a whole. Further, we decline
    Moats’ invitation to expand § 25-217 to include dismissal of
    the action upon the failure to serve an indispensable party who
    was not originally included in the action. As such, this assign-
    ment of error is without merit.
    Remaining Issues
    [23] Moats also argues the district court erred in receiving
    exhibits 9 and 10 into evidence, because they were irrelevant.
    Exhibits 9 and 10 were received into evidence at the hearing on
    Moats’ motion to vacate the court’s judgment and were offered
    to show that Pirnie was aware of the proceedings and did not
    object to Davis’ request for grandparent visitation. However,
    because we have determined that the court lacked jurisdiction
    to hear this matter, we decline to consider this assignment
    of error. An appellate court is not obligated to engage in an
    analysis which is not needed to adjudicate the controversy
    before it. 34
    33
    See Neb. Rev. Stat. § 25-217 (Cum. Supp. 2020).
    34
    City of Sidney v. Municipal Energy Agency of Neb., 
    301 Neb. 147
    , 
    917 N.W.2d 826
    (2018).
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    CONCLUSION
    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 juris-
    diction to enter an order granting grandparent visitation, and
    thus, that order is void and is hereby vacated. Further, because
    the order granting grandparent visitation is void, the order find-
    ing Moats in contempt of the order is also void and is hereby
    vacated. Therefore, since this appeal is taken from void orders,
    we lack jurisdiction to consider the same. Therefore, the mat-
    ter is remanded to the district court for further proceedings
    consist­ent with this opinion.
    Vacated and remanded for
    further proceedings.