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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

Katherine Williams, appellant, v. 

Katelyn Williams, appellee.

___ N.W.2d ___

Filed June 17, 2022. No. S-21-180.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the 

lower court.

2. Jurisdiction: Visitation: Parties. A parent is an indispensable party to 

an action for grandparent visitation, and if a parent is not included in the 

proceedings, a court lacks subject matter jurisdiction to enter an order 

granting grandparent visitation.

3. Parties. When an indispensable party is absent, the court has a duty 

under Neb. Rev. Stat. § 25-323 (Reissue 2016) to require that the indispensable party be brought into the action.

4. Actions: Jurisdiction. The lack of subject matter jurisdiction can be 

raised at any time by any party or by the court sua sponte.

Petition for further review from the Court of Appeals, 

Arterburn, Moore, and Bishop, Judges, on appeal thereto 

from the District Court for Lancaster County, Lori A. Maret, 

Judge. Judgment of Court of Appeals reversed and remanded 

with directions.

Steffanie J. Garner Kotik, of Kotik & McClure Law, for 

appellant.

Katelyn Williams, pro se.

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

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

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

08/05/2022 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

Miller-Lerman, J.

NATURE OF CASE

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 grand

parent 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.

STATEMENT OF FACTS

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 
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311 Nebraska Reports

WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

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 
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311 Nebraska Reports

WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

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 
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311 Nebraska Reports

WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

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.

ASSIGNMENT OF ERROR

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.

STANDARD OF REVIEW

[1] 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).

ANALYSIS

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 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

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 indispen

sable 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 [the 

district] 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 granted the grandmother’s request 

and ordered visitation. The court later found the mother to be 

in contempt for failing to comply with the visitation order. 

The mother moved to vacate and strike the contempt order 

and the order granting grandparent visitation on the basis that 

the district court lacked subject matter jurisdiction because 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

the father was an indispensable party and had not been joined 

in the action. The district court overruled the mother’s motion 

to vacate and strike, and the mother appealed to this court.

[2] We began our analysis in Davis v. Moats, supra, by stating that grandparent visitation is controlled by statute, and we 

noted in particular § 43-1803(2), which requires that a copy 

of the petition for grandparent visitation be served upon, inter 

alia, the parent having custody and any parent not having 

custody. We recognized that the “relationship between parent 

and child is constitutionally protected, and proceedings which 

impact that relationship must afford both parents due process 

of law.” Davis v. Moats, 308 Neb. 757, 767, 956 N.W.2d 682, 

690 (2021). We noted that actions for grandparent visitation 

may affect parental rights. We stated as follows:

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 to enter an order granting grandparent visitation, and thus, that order is void and is hereby 

vacated. Further, because the order granting grandparent 

visitation is void, the order finding [the mother] in contempt of the order is also void and is hereby vacated.

Id. at 770, 956 N.W.2d at 691-92. We remanded the matter 

to the district court and stated that “the district court lacked 

subject matter jurisdiction to make a determination as to [the 

grandmother’s] visitation rights without giving [the father] the 

opportunity to participate in the proceedings.” Id. at 767, 956 

N.W.2d at 690.

[3] Although Katherine did not cite the statutes in her 

complaint or amended complaint, and although at the trial, 

Katherine suggested that she be awarded primary custody, it 

is clear that the action was filed pursuant to the grandparent 

visitation statutes. This case therefore is similar to Davis v. 

Moats, supra, and Morse v. Olmer, 29 Neb. App. 346, 954 

N.W.2d 638 (2021), which both involved grandparent visitation actions in which the grandparent filing the action failed 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

to name the father as a party or have the father served notice 

of the action. In this case, Katherine failed to name Ted as a 

party or to serve him notice of the action. As we determined 

in Davis v. Moats and the Court of Appeals determined in 

Morse v. Olmer, based on § 43-1803(2) and the constitutionally protected relationship of parent and child, a legal parent is 

an indispensable party in a grandparent visitation action and a 

court lacks subject matter jurisdiction to enter an order granting grandparent visitation if a parent is not included in the proceedings. We agree with the district court’s determination that 

Ted was an indispensable party who had not been included in 

this proceeding, and in the absence of his joinder or unsuccessful efforts at joinder, the court lacked subject matter jurisdiction to enter an order granting grandparent visitation. However, 

once the district court realized the absence of Ted defeated 

jurisdiction, under § 25-323 and Midwest Renewable Energy v. 

American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017), 

the court had a duty to require that Ted be brought into the 

action rather than dismiss the case.

[4] The absence of an indispensable party deprives the 

court of subject matter jurisdiction. The lack of subject matter 

jurisdiction can be raised at any time by any party or by the 

court sua sponte. Omaha Expo. & Racing v. Nebraska State 

Racing Comm., 307 Neb. 172, 949 N.W.2d 183 (2020). In 

Davis v. Moats, supra, we emphasized that the father must be 

given an opportunity to participate in the grandparent visitation 

proceedings. Just such an opportunity presented itself in this 

case, when Katherine filed her motion to alter or amend the 

judgment or motion for new trial pursuant to which Ted would 

be joined.

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 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

without the presence of other parties, the court must order 

them to be brought in.

(Emphasis supplied.)

Ted, as a parent, was an indispensable party in this grandparent visitation action, and therefore, the requirement under 

§ 25-323 that “the court must order [indispensable parties] 

to be brought in” applies in this case. In Midwest Renewable 

Energy v. American Engr. Testing, 296 Neb. at 90, 894 N.W.2d 

at 236, we stated that this second clause of § 25-323 “mandates 

the district court order indispensable parties be brought into the 

controversy.” We also said that § 25-323 “makes it the court’s 

duty to require an indispensable party be added to the litigation.” Midwest Renewable Energy v. American Engr. Testing, 

296 Neb. at 89, 894 N.W.2d at 235.

It would be wrong, however, to read the command of 

§ 25-323 beyond the plain meaning of its words—“the court 

must order [the indispensable parties] to be brought in.” Once 

the trial court so orders, it is up to the parties to take the steps 

necessary to implement the order. See, Davis v. Moats, 308 

Neb. 757, 956 N.W.2d 682 (2021); Midwest Renewable Energy 

v. American Engr. Testing, supra. Accomplishment of amendments to pleadings, issuance and service of summonses, and 

the like fall on the parties and not the court. See Dempster v. 

Ashton, 125 Neb. 535, 250 N.W. 917 (1933). And, ultimately, if 

the party asserting the claim involving the indispensable party 

fails to bring the party in, dismissal remains as an appropriate 

disposition. See, Neb. Rev. Stat. § 25-601(3) (Reissue 2016); 

Dempster v. Ashton, supra.

In her amended motion to alter or amend, Katherine appears 

to have attempted to bring Ted into the action by including 

his name in the caption and listing his address in the certificate of service. In its minute entry summarily dismissing this 

appeal, the Court of Appeals stated, “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, 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

such that [Katherine] can refile the action.” This statement 

indicates that the Court of Appeal read the “must” in the second clause of § 25-323 as permissive rather than mandatory. 

We generally do not read the use of the terms “must” and 

“shall” as permissive rather than mandatory. See Karo v. NAU 

Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017). We 

believe the Court of Appeals erred when it read § 25-323 

as permissive, and not mandatory, and consequently misapplied § 25-323.

In this case, the Court of Appeals determined that without 

the father, Ted, having been given an opportunity to participate, the district court lacked subject matter jurisdiction to 

order grandparent visitation and therefore the Court of Appeals 

also lacked jurisdiction. Although Katherine sought to include 

Ted, the Court of Appeals did not remand the cause with directions for the district court to fulfill its duty to require Ted to 

be brought into the action as sought by Katherine. In Davis v. 

Moats, supra, we recognized that when the lower court lacks 

subject matter jurisdiction to adjudicate an issue, an appellate 

court also lacks the power to determine the merits of that issue, 

and that when an appellate court is without jurisdiction to act, 

the appeal must be dismissed. However, we also recognized 

that in addition to having the power to determine whether 

it lacks jurisdiction over an appeal because the lower court 

lacked jurisdiction, the appellate court also has the power, if 

necessary, to remand the cause with appropriate directions. 

See id. We have specifically stated that “‘[w]hen it appears 

that all indispensable parties to a proper and complete determination of an equity cause were not before the district court, 

[an appellate court] will remand the cause for the purpose of 

having such parties brought in.’” Pestal v. Malone, 275 Neb. 

891, 896, 750 N.W.2d 350, 355 (2008). Albeit in the statutory 

grandparent visitation context, we apply this reasoning to the 

instant case.

In light of its duty under § 25-323, the district court should 

have allowed Katherine to complete her efforts as reflected 
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WILLIAMS v. WILLIAMS

Cite as 311 Neb. 772

in her amended motion to alter or amend or motion for new 

trial to bring Ted into the action, and the Court of Appeals 

should have remanded the cause with directions to the district 

court to order her to do so.

CONCLUSION

The district court correctly determined that the father, Ted, 

was an indispensable party in this grandparent visitation action, 

but we conclude that § 25-323 required the district court to 

order that Ted, as an indispensable party, be brought into the 

action as sought by Katherine before it dismissed the action for 

lack of an indispensable party. The Court of Appeals endorsed 

the dismissal, which was error. We therefore reverse the Court 

of Appeals’ summary dismissal, and we remand the cause to 

the Court of Appeals with directions to reverse the district 

court’s dismissal of Katherine’s complaint and to remand the 

cause to the district court with directions to order Katherine to 

bring Ted into the action.

Reversed and remanded with directions.