Davis v. Moats
| Decision Date | 26 March 2021 |
| Docket Number | No. S-20-387.,S-20-387. |
| Citation | 308 Neb. 757,956 N.W.2d 682 |
| Parties | Latonne DAVIS, appellee, v. Victoria E. MOATS, appellant. |
| Court | Nebraska Supreme Court |
Matt Catlett, of Law Office of Matt Catlett, Lincoln, for appellant.
Rodney J. Palmer, of Palmer Law Group, L.L.C., Ainsworth, 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 contempt 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 jurisdiction 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 indispensable 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.
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 Pirnie never married. There is no dispute that Pirnie is the biological 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 weekend visitation, a weeklong summer visitation, regular correspondence, 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] getting 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 incarceration. 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 beneficial 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.
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, requiring 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 visitation 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 attorney fees, and further, the court ordered Moats to allow visitation between Davis and the minor child. Moats appeals.
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 evidence, because they were irrelevant.
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
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.2
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.3
In Nebraska, grandparent visitation is controlled by statute.4 Under Neb. Rev. Stat. § 43-1802(1)(c) (Reissue 2016), a grandparent may seek visitation with his or her minor grandchild if the parents of the minor child have never been married 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 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 matter 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 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 jurisdiction 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 particular 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 jurisdiction is void.9
Moats relies upon the Nebraska Court of Appeals’ decision in Beal v. Endsley10 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 parent 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.
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 necessary parties the same as indispensable parties, the traditional definition of an indispensable ...
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