Williams v. Williams
| Decision Date | 17 June 2022 |
| Docket Number | S-21-180. |
| Citation | 311 Neb. 772,975 N.W.2d 523 |
| Parties | Katherine WILLIAMS, appellant, v. Katelyn WILLIAMS, appellee. |
| Court | Nebraska Supreme Court |
Steffanie J. Garner Kotik, of Kotik & McClure Law, Lincoln, for appellant.
Katelyn Williams, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Katherine Williams appealed to the Nebraska Court of Appeals from the order of the district court for Lancaster County which dismissed her amended complaint for grandparent visitation. After it determined that it lacked jurisdiction because the minor child's father had not been given notice of the proceedings, the district court dismissed the complaint without prejudice and denied Katherine's motion to alter or amend or for new trial. The Court of Appeals agreed that the district court lacked jurisdiction, and it determined that it consequently lacked jurisdiction of this appeal. For that reason, the Court of Appeals summarily dismissed the appeal.
We granted Katherine's petition for further review of the Court of Appeals’ summary dismissal. Katherine claims that the Court of Appeals erred when it failed to reverse the district court's dismissal. Katherine contends that the father was an indispensable party and that the district court erred when it failed to give the father an opportunity to participate in the proceedings before it dismissed the case. We agree, and as a consequence, the Court of Appeals erred when it dismissed the appeal rather than reversing the district court's dismissal and remanding the cause with directions. We reverse the Court of Appeals’ summary dismissal of the appeal, and we remand the cause with directions to the Court of Appeals to reverse the district court's dismissal and to remand the cause to the district court for further proceedings in accordance with this opinion.
The appellant, Katherine, unsuccessfully sought grandparent visitation with the minor child. Katherine is the mother of Katelyn Williams. Katelyn is the mother of the minor child, born in January 2017. Ted Henderson, Jr. (Ted), was adjudicated to be the biological father of the minor child. During the first 2 years of the minor child's life, Katelyn and the minor child sometimes lived with Katherine and her husband and, at other times, they lived on their own or with Ted. Katelyn and the minor child lived with Katherine for over a year, beginning in October 2018. In late December 2019, Katelyn and the minor child moved out of Katherine's house.
On February 3, 2020, Katherine filed a complaint in the district court seeking grandparent visitation with the minor child. Katherine had Katelyn served with the complaint at an address in New York. Katherine filed an amended complaint in May that was served on Katelyn. Ted was not named as a party, and it does not appear that either complaint was served on him. Instead, Katherine alleged that she was "not certain of [Ted's] whereabouts" and that Ted had "had no contact with [the minor child] for an extended period of time."
Trial was held on July 29, 2020. Although she had made filings in this case, Katelyn did not appear and was not represented at the trial. Ted also did not appear. Katherine appeared and was a witness. She generally testified that from the minor child's birth in January 2017 until December 2019, she had been very involved in his life and had been his primary caretaker for significant periods of time when Katelyn could not or would not provide care. Katherine testified that Katelyn had allowed her no access to the minor child since they moved out of her house in December 2019. She testified that she was concerned that Katelyn was not providing him with adequate care and had effectively abandoned him. Additionally, Katherine suggested that he should be placed with her. At the close of evidence, Katherine's counsel argued that Katherine had shown not only that she should be awarded grandparent visitation but also that she stood in loco parentis to the minor child and should be awarded primary custody of him.
After the trial, the district court filed an order on December 8, 2020, in which it dismissed Katherine's complaint without prejudice. The court generally reasoned that it lacked jurisdiction because Ted had not been given notice and an opportunity to be heard. Although the court acknowledged that Katherine's complaint was fashioned as a complaint for grandparent visitation, the court appeared to focus on Katherine's argument that she stood in loco parentis to the minor child and should be awarded custody of him. Although this was not an initial custody determination, see Neb. Rev. Stat. § 43-1239 (Reissue 2016), the court nevertheless concluded that it "lack[ed] jurisdiction under the [Uniform Child Custody Jurisdiction and Enforcement Act] over this child custody proceeding." The court therefore dismissed Katherine's amended complaint for grandparent visitation without prejudice. In so ruling, the court noted that there was no dispute that Ted was the adjudicated father of the minor child and that it was also clear that Ted had not been joined as a party and had not been given notice of the action.
Katherine filed a motion to alter or amend judgment and motion for new trial, and later, she filed an amended motion to alter or amend judgment and a motion for new trial or to reopen the evidence. The amended motion to alter or amend added Ted's name in the caption, and it included a certification stating that "the defendant's attorney" had been served electronically and listing Katelyn's address in New York and an address for Ted in Beatrice, Nebraska. The district court overruled Katherine's motion and amended motion.
Katherine appealed to the Court of Appeals and claimed that the district court erred when it dismissed her amended complaint for grandparent visitation and when it overruled her amended motion to alter or amend which would have added Ted as a party.
The Court of Appeals summarily dismissed the appeal on its own motion with the following minute entry:
Appeal dismissed. See Neb. Ct. R. App. P. § 2-107(A)(2). 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 jurisdiction and so does the appellate court. See, Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021) ; Morse v. Olmer, 29 Neb. App. 346, 954 N.W.2d 638 (2021). While the district court could have allowed [Katherine] to amend her complaint in order to join the biological father as a party, there was no error in the court's decision to dismiss without prejudice, such that [Katherine] can refile the action.
We granted Katherine's petition for further review of the Court of Appeals’ summary dismissal of this appeal.
Katherine claims, restated, that the Court of Appeals erred when it failed to reverse the dismissal of her amended complaint and when it did not remand the cause to the district court with directions to give Ted an opportunity to participate in the proceedings.
Statutory interpretation presents a question of law which an appellate court reviews independently of the lower court. Porter v. Knife River, Inc. , 310 Neb. 946, 970 N.W.2d 104 (2022).
Katherine claims generally that the Court of Appeals erred when it failed to reverse the district court's order dismissing her amended complaint and to remand the cause to the district court with directions to give Ted an opportunity to participate in the proceedings. In particular, we agree with Katherine that her amended motion to alter or amend or motion for new trial—which should have given Ted such opportunity—should have been granted, and we reverse the Court of Appeals’ dismissal accordingly.
In two recent grandparent visitation cases, Davis v. Moats , 308 Neb. 757, 956 N.W.2d 682 (2021), and Morse v. Olmer , 29 Neb. App. 346, 954 N.W.2d 638 (2021), the Court of Appeals and this court have applied the indispensable party feature of Neb. Rev. Stat. § 25-323 (Reissue 2016) and concluded that the father with nonterminated parental rights was an indispensable party. In Morse v. Olmer , paternal grandparents filed a complaint for grandparent visitation against the mother of their granddaughter, but they failed to serve the complaint on their son, the granddaughter's father. After a hearing at which the father of the granddaughter did not appear, the district court awarded visitation to the grandparents. The Court of Appeals noted Neb. Rev. Stat. § 43-1803(2) (Reissue 2016), which is part of the grandparent visitation statutes and which provides that "[w]hen a petition seeking visitation is filed, a copy of the petition shall 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 ...." The Court of Appeals determined that the father "was entitled to be served and participate in the present proceeding by virtue of both § 43-1803(2) and his constitutionally protected parental rights." Morse v. Olmer , 29 Neb. App. at 354, 954 N.W.2d at 644. The Court of Appeals further determined that the father was an indispensable party and that under § 25-323, the district court lacked jurisdiction to consider the grandparents’ complaint because he had not been included in the proceedings. The Court of Appeals therefore reversed the district court's order granting grandparent visitation, and it "remanded [the cause] to court with directions to add [the father] to the case as an indispensable party." Morse v. Olmer , 29 Neb. App. at 355, 954 N.W.2d at 645.
Shortly after the Court of Appeals decided Morse v. Olmer, supra , we decided Davis v. Moats, supra , in which a grandmother filed a petition seeking visitation with her grandchild and named the mother, but not the father, as a defendant. After a trial, the district court...
To continue reading
Request your trial
-
In re Parish
... ... (2013). The lack of subject matter jurisdiction can be raised ... at any time by any party or by the court sua sponte ... Williams v. Williams , 311 Neb. 772, 975 N.W.2d 523 ... However, ... we must clarify that lack of subject matter jurisdiction ... differs ... ...
- 132 Ventures, LLC v. Active Spine Physical Therapy, LLC