Morse v. Olmer

Nebraska Supreme Court Online Library
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01/12/2021 09:07 AM CST
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MORSE v. OLMER
Cite as 29 Neb. App. 346Myron Morse and Lori Morse, appellees,
v. Kaylee Olmer, appellant.
___ N.W.2d ___
Filed January 12, 2021. No. A-19-1090.
1. Visitation: Appeal and Error. Determinations concerning grandparent
visitation are initially entrusted to the discretion of the trial judge, whose
determinations, on appeal, will be reviewed de novo on the record and
affirmed in the absence of an abuse of the trial judge’s discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power, elects
to act or refrain from action, but the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters submitted for disposition through a judi-
cial system.
3. Parties: Jurisdiction: Waiver. The presence of indispensable or neces-
sary parties to a suit is a jurisdictional matter that cannot be waived by
the parties; it is the duty of the plaintiff to join all persons who have or
claim any interest that would be affected by the judgment.
4. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
5. Jurisdiction: Parties: Waiver. The absence of an indispensable party to
a controversy deprives the court of subject matter jurisdiction to deter-
mine the controversy and cannot be waived.
6. Jurisdiction: Appeal and Error. When a lower court lacks the power,
that is, the 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.
7. Parties: Equity: Appeal and Error. When it appears that all indis-
pensable parties to a proper and complete determination of an equity
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MORSE v. OLMER
Cite as 29 Neb. App. 346cause were not before the court, an appellate court will remand the cause
for the purpose of having such parties brought in.
8. Visitation: Parties. A noncustodial parent is an indispensable party to
an action regarding grandparent visitation.
9. 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.
Appeal from the District Court for Platte County: Robert
R. Steinke, Judge. Reversed and remanded for further
proceedings.
Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher,
Klutman & Valorz, for appellees.
Bishop, Arterburn, and Welch, Judges.
Arterburn, Judge.
INTRODUCTION
Kaylee Olmer appeals from an order of the district court for
Platte County granting Myron Morse and Lori Morse grand-
parent visitation with Kaylee’s daughter, Lily Olmer. Because
Lily’s father, Aaron Morse, was an indispensable party to the
action and was not joined in the proceedings, we find that the
district court lacked jurisdiction to address grandparent visita-
tion rights. Thus, we must reverse the district court’s order
granting the Morses visitation with Lily.
BACKGROUND
Kaylee and Aaron are the biological parents of Lily, born
in August 2017. The Morses are Aaron’s parents and Lily’s
paternal grandparents. Kaylee and Aaron have never been mar-
ried. In fact, they were both approximately 15 years old at the
time of Lily’s birth in 2017 and were both 17 years old by the
time of the proceedings. Kaylee has physical and legal custody
of Lily. At the time of the proceedings, Aaron was being held
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MORSE v. OLMER
Cite as 29 Neb. App. 346at a youth rehabilitation and treatment center as a result of his
multiple law violations.
When Lily was born in August 2017, Kaylee and Aaron
were still in a relationship. Lori was present in the delivery
room when Lily was born, and Myron was nearby in the
hospital. They were present at Lily’s baptism, and Lori even
assisted with the preparations for this event. The Morses were
permitted to visit Lily whenever they wished at Kaylee’s par-
ent’s home, and on a few occasions, Lily visited the Morses at
their home.
Kaylee and Aaron’s relationship ended in July 2018. From
August 2018, when Lily turned 1 year old, through December
2018, the Morses saw Lily one time per month when Kaylee’s
parents brought Lily to a local restaurant for a visit. In December
2018, a temporary order was entered in a paternity proceed-
ing initiated by Aaron. The temporary order provided Aaron
with parenting time with Lily every other weekend, excluding
overnights. The Morses were required to supervise these visits.
The every other weekend visits between Lily, Aaron, and the
Morses continued through March 2019, when Aaron’s visita-
tion was suspended due to his detention associated with pend-
ing juvenile proceedings.
In April 2019, the Morses filed a complaint for grandpar-
ent visitation, naming Kaylee as the sole defendant. In the
complaint, the Morses alleged that Kaylee is Lily’s custodial
parent, Aaron is her noncustodial parent, and they are her
paternal grandparents. The Morses also alleged that their dif-
ferences with Kaylee are “irreconcilable” as they “have con-
tacted [Kaylee] on numerous occasions and requested visita-
tion with their grandchild. Currently at this time no visitation
schedule has been made, and if visitations occur they are at
the total discretion of [Kaylee].” They requested that the dis-
trict court award them reasonable visitation with Lily. Kaylee
entered a voluntary appearance acknowledging her receipt of
the Morses’ complaint, and she later filed an answer. However,
there is nothing in our record which indicates that Aaron
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MORSE v. OLMER
Cite as 29 Neb. App. 346was ever served or otherwise received a copy of the complaint.
In addition, there is no indication that he was provided notice
of the trial date.
A trial was held on the Morses’ complaint for grandparent
visitation on October 17, 2019. Aaron did not appear for the
trial either in person or by counsel. At the trial, Lori, Myron,
and Kaylee testified. After hearing their testimonies, the dis-
trict court granted the Morses’ request for reasonable visitation
with Lily. The court stated:
Having heard and considered all the evidence offered
during the trial in this case, the Court is going to find
by clear and convincing evidence that the [Morses]
have met their burden of proof. Specifically, that they
have met, again by clear and convincing evidence, that
there is and has been a significant beneficial relation-
ship between them and the child, Lily. That it’s in the
best interests of Lily that such relationship continue and
that such visitation as will be ordered by the Court will
not, in the Court’s view, adversely interfere with the
parent-child relationship.
The court awarded the Morses visitation with Lily on the third
Saturday and Sunday of each month from 9 a.m. to 6 p.m. and
on the first Tuesday of each month from 4 to 7 p.m. The court
explicitly ordered that any grandparent visitation exercised by
the Morses could not include Aaron.
Kaylee has appealed from the district court’s order.
ASSIGNMENTS OF ERROR
On appeal, Kaylee asserts that the district court erred in
granting the Morses’ request for grandparent visitation with
Lily. Specifically, Kaylee argues that the district court erred in
(1) finding that the Morses have a significant beneficial rela-
tionship with Lily, (2) finding that it was in the best interests
of Lily to have court-ordered visitation with the Morses, (3)
finding that the Morses’ visitation with Lily will not adversely
interfere with the parent-child relationship, (4) failing to
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Cite as 29 Neb. App. 346give “special weight” to Kaylee’s decisionmaking authority,
and (5) failing to adequately consider Aaron’s role in the
proceedings.
STANDARD OF REVIEW
[1,2] Determinations concerning grandparent visitation are
initially entrusted to the discretion of the trial judge, whose
determinations, on appeal, will be reviewed de novo on the
record and affirmed in the absence of an abuse of the trial
judge’s discretion. Gatzemeyer v. Knihal, 25 Neb. App. 897,
915 N.W.2d 630 (2018). A judicial abuse of discretion exists
when a judge, within the effective limits of authorized judicial
power, elects to act or refrain from action, but the selected
option results in a decision which is untenable and unfairly
deprives a litigant of a substantial right or a just result in mat-
ters submitted for disposition through a judicial system. Id.[3] The presence of indispensable or necessary parties to a
suit is a jurisdictional matter that cannot be waived by the par-
ties; it is the duty of the plaintiff to join all persons who have
or claim any interest that would be affected by the judgment.
See Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008).
ANALYSIS
[4] Before reaching Kaylee’s assignments of error, this court
must first determine whether it has jurisdiction. It is the power
and duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. J.S. v. Grand Island Public
Schools, 297 Neb. 347, 899 N.W.2d 893 (2017).
At trial, and on appeal, the parties do not explicitly address
whether the district court had jurisdiction to consider the
Morses’ action. In Kaylee’s brief on appeal, she does argue
that the district court abused its discretion by failing to take
Aaron into consideration when awarding the Morses grand-
parent visitation. As a part of her argument, Kaylee asserts
that the Morses failed to serve Aaron with a copy of their
complaint pursuant to Neb. Rev. Stat. § 43-1803(2) (Reissue
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Cite as 29 Neb. App. 3462016), which requires a petition seeking grandparent visitation
to “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.” However, in her brief, Kaylee does not go so
far as to argue that the Morses’ failure to serve Aaron with a
copy of the complaint constituted a jurisdictional defect. Upon
our review, we conclude that the failure of the Morses to add
Aaron as a party to the proceedings deprived the district court
of jurisdiction.
Neb. Rev. Stat. § 25-323 (Reissue 2016) is entitled “Necessary
parties; brought into suit; procedure.” 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 without
the presence of other parties, the court must order them to
be brought in.
The language of § 25-323 tracks the traditional distinc-
tion between necessary and indispensable parties. Midwest
Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017). This court, in In re Trust Created by
Augustin, 27 Neb. App. 593, 620-21, 935 N.W.2d 493, 515
(2019), reviewed the distinction, explaining:
“‘“‘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, proceed in their absence[.] ‘Indispensable par-
ties[ ]’ [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.”
“‘. . . The inclusion of a necessary party is within the
trial court’s discretion. . . . However, there is no dis-
cretion as to the inclusion of an indispensable party.’”
[Midwest Renewable Energy v. American Engr. Testing,
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Cite as 29 Neb. App. 346296 Neb.] at 90, 894 N.W.2d at 236. Therefore, the first
clause of § 25-323 makes the inclusion of necessary par-
ties discretionary when a controversy of interest to them
is severable from their rights. See Midwest Renewable
Energy v. American Engr. Testing, supra. “The second
clause, however, mandates the district court order indis-
pensable parties be brought into the controversy.” Id.
at 90, 894 N.W.2d at 236. All persons interested in the
contract or property involved in an action are necessary
parties, whereas all persons whose interests therein may
be affected by a decree in equity are indispensable par-
ties. See Midwest Renewable Energy v. American Engr.
Testing, supra.[5-7] The absence of an indispensable party to a controversy
deprives the court of subject matter jurisdiction to determine
the controversy and cannot be waived. In re Trust Created
by Augustin, supra. When a lower court lacks the power, that
is, the 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 ques-
tion presented to the lower court. Id. When it appears that all
indispensable parties to a proper and complete determination
of an equity cause were not before the court, an appellate court
will remand the cause for the purpose of having such parties
brought in. Id.
[8] The question presented by this appeal is whether a non-
custodial parent is an indispensable party to an action regard-
ing grandparent visitation. We conclude that a noncustodial
parent is such an indispensable party.
[9] The relationship between parent and child is constitu-
tionally protected, and proceedings which impact that rela-
tionship must afford both parents due process of law. See
Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d
511 (1978). In Beal v. Endsley, 3 Neb. App. 589, 529 N.W.2d
125 (1995), this court discussed whether a noncustodial parent
must be made a party to grandparent visitation proceedings in
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Cite as 29 Neb. App. 346the context of both parents’ right to due process. In that case,
the grandparents filed an action requesting grandparent visita-
tion after the divorce of their grandchildren’s parents. In the
complaint, the grandparents named only the children’s custo-
dial parent as a party to the action. This court “correct[ed] the
caption in [the] matter to properly reflect that [the noncustodial
parent] is a party to these proceedings.” Id. at 592, 529 N.W.2d
at 127. We explained:
Although § 43-1803, the statute addressing the contents
of a petition seeking grandparent visitation rights, does
not specify who the proper parties defendant are, that sec-
tion does require that the name of the custodial, as well
as the noncustodial, parent of the child is to be set forth,
and subsection (2) of that statute requires that a copy of
the petition is to be served upon both.
Id. at 592, 529 N.W.2d at 128. We ultimately held, “In a peti-
tion 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.” Beal v. Endsley,
3 Neb. App. at 592, 529 N.W.2d at 128. However, we did not
explicitly decide whether a noncustodial parent is an indispen­
sable party to a grandparent visitation proceeding, because in
Beal, the noncustodial parent had filed a voluntary appearance
despite not being named as a party to the action.
This court has also previously addressed whether a parent
must be given an opportunity to participate in proceedings
regarding grandparent visitation. In In re Interest of Zachary
W. & Alyssa W., 3 Neb. App. 274, 526 N.W.2d 233 (1994),
we held that the juvenile court erred in granting grandparent
visitation without giving the children’s mother any opportunity
for a hearing on the issue. We stated, “The proposition that a
person’s constitutionally protected right cannot be interfered
with without an opportunity to be heard is well founded in
the Due Process Clause in the Constitution.” In re Interest of
Zachary W. & Alyssa W., 3 Neb. App. at 280, 526 N.W.2d at
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Cite as 29 Neb. App. 346238. We reversed the juvenile court’s order granting grandpar-
ent visitation, but noted that the issue could be revisited after
a second application, notice to the parents, and an evidentiary
hearing. Id.In this case, Aaron, who is Lily’s biological father, was not
named as a party in the Morses’ grandparent visitation action.
In fact, as Kaylee argues in her brief, there is no indication
that Aaron was served or otherwise received any notice of the
action as required by § 43-1803(2). Aaron did not appear or
participate in the trial. And, while our record indicates that
Aaron’s visitation with Lily had been temporarily suspended
in a separate case due to his law violations, there is no indica-
tion that Aaron’s parental rights had been terminated or that
they were in jeopardy. His inability to participate at any stage
of the proceedings related to grandparent visitation was a clear
violation of his due process rights relative to his constitution-
ally protected relationship with Lily. Court-ordered grandpar-
ent visitation will have an impact on Aaron’s relationship
with Lily, and he was entitled to have notice and be heard on
this issue.
In particular, we note that despite Aaron’s absence at the
proceedings, the district court ordered that the Morses’ time
with Lily could not include Aaron. This order would necessar-
ily impact any potential future parenting time that Aaron could
be awarded. While we recognize that Aaron’s parenting time
had been suspended pursuant to an order in a separate pater-
nity case (a proceeding in which we presume he had notice),
that suspension cannot be considered cause for eliminating him
from the present case.
In short, Aaron was entitled to be served and participate
in the present proceeding by virtue of both § 43-1803(2)
and his constitutionally protected parental rights. We con-
clude that Aaron was an indispensable party to the Morses’
grandparent visitation action. Because he was not joined as
a party, the district court lacked jurisdiction to consider the
Morses’ complaint.
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MORSE v. OLMER
Cite as 29 Neb. App. 346CONCLUSION
The district court lacked jurisdiction over this case because
Aaron was an indispensable party and was not included in the
proceedings. As a result, the district court’s order granting
grandparent visitation to the Morses is reversed and the cause
is remanded to that court with directions to add Aaron to the
case as an indispensable party.
Reversed and remanded for
further proceedings.