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29 Nebraska Appellate Reports

MORSE v. OLMER

Cite as 29 Neb. App. 346

Myron 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 decision which is untenable and unfairly deprives a litigant of a substantial 

right or a just result in matters submitted for disposition through a judicial system.

3. Parties: Jurisdiction: Waiver. The presence of indispensable or necessary 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 appellate 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 determine 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 indispensable parties to a proper and complete determination of an equity 

Nebraska Supreme Court Online Library

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

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MORSE v. OLMER

Cite as 29 Neb. App. 346

cause 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 grandparent 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 visitation 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 married. 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. 346

at 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 parent’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 proceeding 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 visitation was suspended due to his detention associated with pending juvenile proceedings.

In April 2019, the Morses filed a complaint for grandparent 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 differences with Kaylee are “irreconcilable” as they “have contacted [Kaylee] on numerous occasions and requested visitation 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 district 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. 346

was 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 district 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 relationship 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 relationship 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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MORSE v. OLMER

Cite as 29 Neb. App. 346

give “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 matters 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 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. 

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 grandparent 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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2016), 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 distinction 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 parties[ ]’ [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 discretion as to the inclusion of an indispensable party.’” 

[Midwest Renewable Energy v. American Engr. Testing, 
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296 Neb.] at 90, 894 N.W.2d at 236. Therefore, the first 

clause of § 25-323 makes the inclusion of necessary parties 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 indispensable 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 parties. 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 question 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 noncustodial parent is an indispensable party to an action regarding grandparent visitation. We conclude that a noncustodial 

parent is such an indispensable party.

[9] The relationship between parent and child is constitutionally protected, and proceedings which impact that relationship 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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the context of both parents’ right to due process. In that case, 

the grandparents filed an action requesting grandparent visitation after the divorce of their grandchildren’s parents. In the 

complaint, the grandparents named only the children’s custodial 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 section 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 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.” 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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238. We reversed the juvenile court’s order granting grandparent 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 indication 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 constitutionally protected relationship with Lily. Court-ordered grandparent 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 necessarily 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 paternity 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 conclude 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. 346

CONCLUSION

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.