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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

Suzette Kane, appellant, v. Shauna Kane 

and Michael Leonard, appellees.

___ N.W.2d ___

Filed May 27, 2022. No. S-21-737.

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.

2. Motions to Dismiss: Jurisdiction: Rules of the Supreme Court: 

Pleadings: Appeal and Error. A motion to dismiss for lack of jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) which is limited to a facial 

attack on the pleadings is subject to a de novo standard of review.

3. Constitutional Law: Due Process: Parental Rights. Parents have a 

liberty interest in the care, custody, and control of their children that is 

protected by the Due Process Clause of the 14th Amendment.

4. Visitation: Parent and Child: Presumptions. Three principles of 

import regarding grandparent visitation are that (1) there is a presumption that fit parents act in the best interests of their children; (2) in light 

of this presumption, a fit parent’s decision concerning the denial of 

grandparent visitation must be accorded at least some special weight; 

and (3) notwithstanding the special weight to be accorded a fit parent’s 

decision, the presumption in favor of fit parents is rebuttable under the 

appropriate circumstances.

5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case of the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

Appeal from the District Court for Lancaster County: 

Susan I. Strong, Judge. Vacated and remanded for further proceedings.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/15/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

Linsey A. Camplin and Sam Baue, of McHenry, Haszard, 

Roth, Hupp, Burkholder, Blomenberg & Camplin, P.C., L.L.O., 

for appellant.

David V. Chipman, of Monzón, Guerra & Associates, for 

appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Suzette Kane filed a petition to establish grandparent visitation with her minor grandchildren. Following a hearing on 

the biological parents’ motion to dismiss, the district court 

dismissed Suzette’s petition for lack of subject matter jurisdiction. We find that the district court erred in determining it 

lacked jurisdiction, vacate its dismissal of Suzette’s petition, 

and remand the cause for further proceedings.

BACKGROUND

Suzette filed a petition to establish grandparent visitation 

with her minor grandchildren. She is the biological mother 

of Shauna Kane and the biological grandmother of the minor 

children of Shauna and her ex-husband, Michael Leonard 

(Michael), the biological father of the minor children. Shauna 

and Michael filed a motion to dismiss pursuant to Neb. Ct. R. 

Pldg. § 6-1112(b)(1) (lack of subject matter jurisdiction) and 

§ 6-1112(b)(6) (failure to state claim upon which relief may 

be granted).

A hearing was held on Shauna and Michael’s motion to dismiss. At that hearing, their counsel contended that there was no 

compelling state interest to allow visitation when both parents 

were opposed, contended that the “action [was] unconstitutional as applied,” and sought dismissal. Shauna and Michael 

offered affidavits in support of their motion—from Shauna, her 

sister, and Michael.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

Shauna’s affidavit averred that Suzette was verbally abusive 

to her throughout her childhood and that as adults, Suzette and 

Shauna were estranged because Suzette was disparaging to 

Shauna and Michael. Shauna further averred that Suzette had 

only seen the minor children twice from the birth of the oldest 

in 2012 until Shauna and Michael separated in 2018 and that 

their relationship was renewed only upon Shauna and Michael’s 

separation because Suzette offered financial assistance during 

the divorce. Shauna averred that during that time, Suzette was 

interfering and manipulative; eventually, Shauna again cut off 

contact and repaid the sums she borrowed from Suzette.

In his affidavit, Michael set forth his own negative experiences with Suzette and described his impressions of Suzette 

and Shauna’s relationship. Shauna’s sister averred in her affidavit that she had no contact with Suzette and did not allow 

Suzette to see her children, explaining that she was “terrified 

even signing this affidavit because [Suzette] is so vindictive 

and willing to make false allegations.”

In response to Shauna and Michael’s assertions at this hearing, Suzette’s counsel noted:

The statute itself has been found to be constitutional 

when it’s correctly applied, and it says nothing about the 

need for both parents to agree. It says nothing about the 

— whether or not the two parents are on the same side.

. . . .

So, I believe it’s kind of a red herring meant to distract 

from the fact that this case — the statute has already 

been found to be constitutional more than once by the 

Nebraska Supreme Court, and that issue, I think, is settled 

as a matter of law.

The question is whether or not [Suzette] fits within the 

statutory requirements to request that visitation . . . .

Suzette offered her own affidavit at the hearing. In that 

affidavit, Suzette averred that Shauna was “resentful” of the 

financial help she provided and, further, that she had “always 

had a strong relationship with [her] grandchildren.”
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

The district court granted the motion to dismiss for a lack 

of subject matter jurisdiction, concluding that in this case, “the 

grandparent visitation statute is an unconstitutional infringement on [Shauna and Michael’s] fundamental liberty interest in 

raising their children.”

Suzette appeals.

ASSIGNMENT OF ERROR

Suzette assigns that the district court erred in dismissing her 

petition to establish grandparent visitation.

STANDARD OF REVIEW

[1,2] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision. 1 A motion to dismiss for 

lack of jurisdiction under § 6-1112(b)(1) which is limited to a 

facial attack on the pleadings is subject to a de novo standard 

of review. 2

ANALYSIS

Primer on Grandparent Visitation Law.

[3,4] We begin with a primer on the legal background of 

grandparent visitation. The seminal case in this area is Troxel 

v. Granville. 3 In that case, the U.S. Supreme Court found the 

State of Washington’s grandparent visitation statute unconstitutional as applied to the facts presented in Troxel. The Court 

first observed that the parents had a liberty interest in the 

care, custody, and control of their children that was protected 

by the Due Process Clause of the 14th Amendment. The 

Court then noted that the Washington statute was “breathtakingly broad” in that it excluded parents from the visitation 

1 Main St Properties v. City of Bellevue, 310 Neb. 669, 968 N.W.2d 625 

(2022).

2 Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).

3 Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

decisionmaking process altogether. 4 As we restated in Hamit 

v. Hamit,

 5 the three principles of import from Troxel were 

that (1) there is a presumption that fit parents act in the best 

interests of their children; (2) in light of this presumption, 

a fit parent’s decision concerning the denial of grandparent 

visitation must be accorded at least some special weight; and 

(3) notwithstanding the special weight to be accorded a fit 

parent’s decision, the presumption in favor of fit parents is 

rebuttable under the appropriate circumstances.

Nebraska’s grandparent visitation statutes provide a process 

for the district court to undertake in order to determine whether 

visitation is both permissible and appropriate. As relevant here, 

Neb. Rev. Stat. § 43-1802(1)(b) (Reissue 2016) confers the 

right to a grandparent to seek visitation in the situation where 

“[t]he marriage of the child’s parents has been dissolved . . . .” 

Neb. Rev. Stat. § 43-1803(1) (Reissue 2016) further provides 

that where “the marriage of the parents of a minor child has 

been dissolved . . . a grandparent seeking visitation shall file a 

petition for such visitation in the district court in the county in 

which the dissolution was had.”

And § 43-1802(2) states:

In determining whether a grandparent shall be granted 

visitation, the court shall require evidence concerning the 

beneficial nature of the relationship of the grandparent 

to the child. The evidence may be presented by affidavit and shall demonstrate that a significant beneficial 

relationship exists, or has existed in the past, between 

the grandparent and the child and that it would be in the 

best interests of the child to allow such relationship to 

continue. Reasonable rights of visitation may be granted 

when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial 

relationship between the grandparent and the child, that 

4 Id., 530 U.S. at 67.

5 Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

it is in the best interests of the child that such relationship continue, and that such visitation will not adversely 

interfere with the parent-child relationship.

Subject Matter Jurisdiction.

Suzette argues on appeal that the district court erred in 

determining that it lacked subject matter jurisdiction over her 

petition because allowing Suzette visitation would infringe 

upon Shauna and Michael’s fundamental liberty interests in 

raising their children.

[5] Subject matter jurisdiction is the power of a tribunal to 

hear and determine a case of the general class or category to 

which the proceedings in question belong and to deal with the 

general subject matter involved. 6 The district courts are granted 

“both chancery and common law jurisdiction, and such other 

jurisdiction as the Legislature may provide.” 7

The district court’s conclusion that it lacked jurisdiction 

over Suzette’s petition is not supported by the applicable 

statutes. As set forth above, a grandparent may seek visitation in the situation where, as here, the biological parents are 

divorced. 8 That petition is to be filed in the district court—

specifically in the district court where the dissolution was 

entered. 9 The language utilized by the statutes supports the 

conclusions that the district court is vested with jurisdiction 

over such matter and that venue is placed with the specific 

district court which entered the dissolution. Nor does anyone 

argue that another court would be more appropriate.

Instead, Shauna and Michael suggest that the district 

court lacked jurisdiction here because to exercise jurisdiction would be to infringe upon Shauna and Michael’s 

6 Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).

7 Neb. Const. art. V, § 9.

8 §§ 43-1802(1)(b) and 43-1803(1).

9 § 43-1803(1).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

fundamental liberty interests in raising their children. Shauna 

and Michael direct us to several cases which they claim support their position.

We find those cases inapplicable. For example, Lulay v. 

Lulay,

 10 while nominally on point, is distinguishable. The 

grandparent visitation statute at issue in Lulay was considerably broader than the Nebraska equivalent, so much so that it 

was subsequently struck down as facially unconstitutional. 11

Nor is there any indication in Lulay that the court’s conclusion 

that the statute was unconstitutional as applied translated into 

a conclusion that the court lacked subject matter jurisdiction 

over the matter. Shauna and Michael also direct us to several 

other cases where the grandparent visitation statute was found 

unconstitutional, either as applied or facially, but none of those 

cases concluded that the court lacked subject matter jurisdiction as a result.

As we noted above, subject matter jurisdiction is the power 

of a tribunal to hear and determine a case of the general class 

or category to which the proceedings in question belong and to 

deal with the general subject matter involved. In this instance, 

the Legislature, through the language of §§ 43-1802(1)(b) and 

43-1803(1), has seen fit to vest jurisdiction over grandparent 

visitation matters in the district court, and at least as an initial 

matter, the parties do not dispute this.

The fact that the grant of a petition might be unconstitutional 

as applied does not deprive a court of subject matter jurisdiction over a petition; rather, it simply means that the grandparent visitation statutes cannot be constitutionally applied to 

a particular scenario. In that instance, a court would deny the 

petition, not dismiss it for a lack of jurisdiction. Having concluded that the district court erred in concluding that it lacked 

jurisdiction over Suzette’s petition, we vacate that portion of 

the district court’s order.

10 Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521, 250 Ill. Dec. 758 (2000).

11 Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1, 263 Ill. Dec. 799 (2002).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

KANE v. KANE

Cite as 311 Neb. 657

Suzette urges us to determine on appeal whether § 43-1802 

would be unconstitutional as applied to her petition for visitation. We decline that invitation. The record in this case demonstrates that the district court failed to determine, as an initial 

matter, whether Suzette’s petition should be granted under the 

standard set forth in § 43-1802(2). While the district court’s 

order dismissing for lack of jurisdiction perhaps suggested 

that it did not take kindly to Suzette’s petition, that petition, 

because it otherwise meets the requirements of Nebraska law, 

is entitled to be considered under the standard set forth in 

statute. Any question of the constitutionality of § 43-1802, as 

applied, should be made only as necessary following such a 

determination on the merits of the petition by the district court. 

As such, we remand the cause for further proceedings.

CONCLUSION

The district court erred in concluding that it lacked subject matter jurisdiction. As such, we vacate the court’s dismissal on those grounds, and we remand the cause for further 

proceedings.

Vacated and remanded for 

further proceedings.