In re Adoption of Trystyn D.

• Decision Date: 26 May 2000
• Docket Number: No. S-98-1177.,S-98-1177.
• Citation: 611 N.W.2d 112,259 Neb. 539
• Parties: In re ADOPTION OF TRYSTYN D. Vicki C., appellant, v. David Prestidge and Ronda Prestidge, appellees.
• Court: Nebraska Supreme Court

611 N.W.2d 112

259 Neb. 539

In re ADOPTION OF TRYSTYN D.

Vicki C., appellant, v. David Prestidge and Ronda Prestidge, appellees.

No. S-98-1177.

Supreme Court of Nebraska.

May 26, 2000.

Stacy C. Nossaman-Petitt, of Nossaman Petitt Law Firm, P.C., Scottsbluff, for appellant.

Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Vicki C., the natural mother of Trystyn D., filed a motion in the county court for Scotts Bluff County to set aside the adoption of Trystyn by David Prestidge and Ronda Prestidge. The court found that it lacked jurisdiction to consider the motion and, in the alternative, that Neb.Rev.Stat. § 43-116 (Reissue 1993) statutorily barred reopening of the decree in the absence of "clearly proven fraud." Thus, the court sustained the Prestidges' demurrer and dismissed the matter. On appeal, the Nebraska Court of Appeals concluded that the demurrer was properly sustained for failure to state a cause of action but that the county court erred in dismissing the matter rather than granting Vicki leave to amend. See In re Adoption of Trystyn D., 8 Neb.App. 704, 600 N.W.2d 508 (1999). The Prestidges petitioned this court for further review.

SCOPE OF REVIEW

When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 136 (2000).

FACTS

In May 1992, the Prestidges petitioned the county court for Scotts Bluff County to adopt Trystyn. The petition alleged that Trystyn was born on October 27, 1991, and had been in their care and custody since October 29. The Prestidges also filed copies of relinquishments and consents to adoption signed by the natural parents, Vicki and Robert D.

Subsequently, the Prestidges obtained an order authorizing notice of the adoption by publication. In addition, notice of the adoption was sent to Vicki at her last known address in Layton, Utah. A second notice was sent to Vicki in Clearfield, Utah. The county court entered a decree of adoption on June 18, 1992.

On April 13, 1998, Vicki filed a motion in the county court for Scotts Bluff County seeking to set aside the adoption. Vicki alleged that she is Trystyn's biological mother and that she was forced into signing over guardianship of Trystyn to the Prestidges, who were related to Robert. She further alleged that a petition for appointment of guardian and consent to the appointment of guardian had been filed in Scotts Bluff County on October 31, 1991, and that on November 19, she signed and filed a revocation of consent to the guardianship.

Specifically, Vicki's motion asserted: (1) She was fraudulently coerced into signing the guardianship papers and any adoption papers bearing her signature; (2) upon realizing the coercive nature of Robert's family, she revoked her consent to the guardianship; (3) during the pendency of the guardianship and adoption proceedings, she and Robert vacationed in Florida, and Robert subsequently moved her to Utah, thereby keeping her uninformed as to the proceedings surrounding Trystyn; (4) sometime during the calendar year 1992, adoption proceedings took place, and at no time was she informed of these proceedings; (5) at all relevant times during the proceedings, the Prestidges were aware of her address and failed to properly notify her of the adoption proceedings; and (6) due to the fraud and coercion of Robert and the Prestidges, Vicki did not become aware of the adoption until June 5, 1997, and therefore, any statute of limitations should be tolled until that time.

The Prestidges' demurrer to the motion to set aside the adoption alleged that the county court lacked jurisdiction over the Prestidges, Trystyn, and the subject matter of this action.

Relying on Neb.Rev.Stat. § 43-1203 (Reissue 1998), the jurisdictional component of the Nebraska Child Custody Jurisdiction Act (NCCJA), Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1998), the county court determined that it lacked jurisdiction to consider the motion to set aside the adoption. The court found that Trystyn and the Prestidges had not been residents of the State of Nebraska for many years and that their current state of residence had acquired a substantial interest in determining the outcome of the dispute. Thus, the court concluded that it would be error to render a judgment and have no practical way to enforce it.

In the alternative, the county court determined that even if it were to assume jurisdiction, § 43-116 statutorily barred reopening this decree and would not allow the court to set aside the adoption unless there was clearly proven fraud. Finding that there was no evidence or proof of fraud, the court dismissed Vicki's motion to set aside the adoption.

On appeal, the Court of Appeals concluded that the county court had erroneously sustained the Prestidges' demurrer on jurisdictional grounds, but the Court of Appeals refused to consider the application of § 43-1203. In re Adoption of Trystyn D., 8 Neb.App. 704, 600 N.W.2d 508 (1999). The Court of Appeals also concluded that the demurrer was properly sustained for failure to state a cause of action because Vicki's motion defectively alleged equitable estoppel but that the county court erred in dismissing the matter rather than granting Vicki leave to amend. Thus, the Court of Appeals reversed the judgment of the county court and remanded the cause for further proceedings. We granted further review.

ASSIGNMENTS OF ERROR

In their petition for further review, the Prestidges assert that the Court of Appeals erred (1) in concluding that it should not decide whether the NCCJA bars this proceeding, (2) in concluding that the 2-year statute of limitations set forth in § 43-116 could be tolled by a claim of fraud, and (3) in concluding that equitable estoppel was a defense to § 43-116 when the issue was not argued or pled by Vicki.

ANALYSIS

Initially, we address what evidence can be considered on appeal. When cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in the former proceedings involving one of the parties now before it, the court has a right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Matters so judicially noticed are properly considered when determining the questions presented by a demurrer. Association of Commonwealth Claimants v. Moylan, 246 Neb. 88, 517 N.W.2d 94 (1994); Rhodes v. Yates, 210 Neb. 14, 312 N.W.2d 680 (1981); Knapp v. City of Omaha, 175 Neb. 576, 122 N.W.2d 513 (1963). In considering the demurrer to Vicki's motion to set aside the adoption, the county court could take judicial notice of the facts which were determined in the adoption, since it had a right to examine its own records and take judicial notice of its own proceedings and judgments. The motion to set aside the adoption and the adoption decree are in the same county court case. Thus, we consider the decree of adoption as a part of the appellate record.

Next, we consider whether the county court erred in concluding that it did not have jurisdiction to consider the motion to set aside the adoption pursuant to § 43-1203. The summons contained in the record shows that the Prestidges were served in Decatur, Texas. We conclude that despite the fact that the Prestidges were served in Texas, the court possessed subject matter jurisdiction to consider the motion.

Subject matter jurisdiction is a court's power 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 involved in the action before the court and the particular question which it assumes to determine. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999). Neb.Rev.Stat. § 43-102 (Reissue 1998) provides that the county court in the county where the person or persons desiring to adopt a child reside has jurisdiction of an adoption proceeding. At the time of the adoption, the Prestidges resided in Scotts Bluff County, and the county court properly assumed jurisdiction over the adoption. As previously noted, the motion to set aside the adoption was filed in Scotts Bluff County Court in the same case as the adoption.

In determining that it lacked jurisdiction, the county court relied upon the jurisdictional guidelines set forth in the NCCJA. Other courts have concluded that the Uniform Child Custody Jurisdiction Act (UCCJA) is applicable to adoption proceedings. See, e.g., J.D.S. v. Franks, 182 Ariz. 81, 893 P.2d 732 (1995) (father sought to set aside adoption, and court relied upon UCCJA to determine whether to exercise jurisdiction); In re Marriage of Dickson, 983 P.2d 44 (Colo.App.1998) (action to dissolve marriage and set aside adoption where court relied upon UCCJA). Section 43-1201 provides that the general purpose of the NCCJA is to avoid jurisdictional competition and conflict with courts of other states in matters of child custody and to ensure that litigation concerning custody of a child takes place ordinarily in the state with which the child and his or her family have the closest connection. The NCCJA establishes a strong jurisdictional preference for the state which originally determined custody to exercise continuing jurisdiction. See Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996).

The adoption decree at issue was entered in Scotts Bluff County, Nebraska. At the time of the adoption, the Prestidges resided in Scotts Bluff County. The adoption consent forms were signed there, and the adoption decree was entered there. These facts illustrate the county court's interest in the adoption and any motion to set it aside. Moreover,...