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308 Nebraska Reports

DAVIS v. MOATS

Cite as 308 Neb. 757

Latonne Davis, appellee, v. 

Victoria E. Moats, appellant.

___ N.W.2d ___

Filed March 26, 2021. No. S-20-387.

1. Visitation: Appeal and Error. Determinations concerning grandparent visitation rights are initially entrusted to the discretion of the trial 

judge, whose determination, on appeal, shall be reviewed de novo 

on the record and affirmed in the absence of an abuse of the trial 

judge’s discretion.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

4. Visitation: Statutes. In Nebraska, grandparent visitation is controlled 

by statute.

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

power of a tribunal 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 matter involved.

6. ____: ____. Subject matter jurisdiction includes a court’s power to 

determine whether it has the authority to address a particular question 

within a general class or category that it assumes to decide or to grant 

the particular relief requested.

7. Jurisdiction: Parties: Waiver. The failure to join an indispensable 

party to a case deprives the court of subject matter jurisdiction and cannot be waived.

8. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

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

9. ____: ____. A court action taken without subject matter jurisdiction 

is void.

Nebraska Supreme Court Online Library

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

04/30/2021 12:09 AM CDT
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10. Parties: Words and Phrases. 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. The inclusion of a necessary party is within the 

trial court’s discretion.

11. Parties: Equity: Words and Phrases. 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. There is no discretion as to the inclusion of 

an indispensable party.

12. Parties. A trial court should cause an action to be properly amended 

to bring in the indispensable party, or dismiss it, if the amendment is 

not made.

13. ____. Whether a person is “indispensable,” that is, whether a particular 

lawsuit must be dismissed in the absence of that person, can be determined only in the context of particular litigation.

14. ____. The decision whether to dismiss (i.e., the decision whether the 

person missing is “indispensable”) must be based on factors varying 

with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing 

against opposing interests.

15. 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.

16. Constitutional Law: Parental Rights: Visitation. The biological 

mother or father of a minor child has a constitutionally protected, 

fundamental right to make decisions concerning the care, custody, and 

control of the child, and actions for grandparent visitation may affect 

that right.

17. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a 

court which lacks subject matter jurisdiction is void and may be attacked 

at any time in any proceeding.

18. Jurisdiction. Where a court has no jurisdiction over the subject matter 

of the action, all proceedings in such action are void.

19. Judgments: Contempt. Refusal to obey a void order or judgment is 

not contempt.

20. Jurisdiction: Appeal and Error. Where a lower court lacks 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.
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DAVIS v. MOATS

Cite as 308 Neb. 757

21. ____: ____. When an appellate court is without jurisdiction to act, the 

appeal must be dismissed.

22. ____: ____. An appellate court has the power to determine whether it 

lacks jurisdiction over an appeal because the lower court lacked jurisdiction to enter the order; to vacate a void order; and, if necessary, to 

remand the cause with appropriate directions.

23. Appeal and Error. An appellate court is not obligated to engage in an 

analysis which is not needed to adjudicate the controversy before it.

Appeal from the District Court for Madison County: James 

G. Kube, Judge. Vacated and remanded for further proceedings.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Rodney J. Palmer, of Palmer Law Group, L.L.C., for 

appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Latonne Davis filed a petition seeking visitation with her 

grandchild. The district court ordered the mother, Victoria E. 

Moats, to allow grandparent visitation and found her in contempt when she refused. The court denied Moats’ motion to 

vacate and strike the order granting grandparent visitation, 

which asserted the court lacked subject matter jurisdiction over 

the case. Moats argues on appeal that the court lacked jurisdiction to order visitation, because the child’s biological father 

was an indispensable party who had not been brought into 

the case. We agree that the biological father was an indispen

sable party. As a result, the district court lacked subject matter 

jurisdiction. Therefore, we vacate the visitation order and the 

contempt order and remand the matter to the district court for 

further proceedings consistent with this opinion.

BACKGROUND

This appeal involves Davis, the paternal grandmother of the 

minor child; Moats, the mother of the minor child; and Tate 

Pirnie, the biological father of the minor child. Moats and 
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DAVIS v. MOATS

Cite as 308 Neb. 757

Pirnie never married. There is no dispute that Pirnie is the biological father of the minor child or that Moats is the custodial 

parent of the minor child.

On May 18, 2018, Davis petitioned the district court of 

Madison County, Nebraska, requesting regular overnight weekend visitation, a weeklong summer visitation, regular correspondence, and regular telephone conversations with the minor 

child. Davis alleged that following the breakup of Moats and 

Pirnie, she has not been allowed any visitation or telephone 

contact with the minor child. Davis named Moats as the only 

defendant in the action, and only Moats was served a copy of 

the petition.

At trial, Davis testified that she shares a loving bond with 

the minor child and that they do various activities together. 

Moats testified that she did not want Davis to have overnight 

visitation with the minor child because of Pirnie, who, up until 

he was sentenced for an unrelated criminal conviction, resided 

with Davis. Moats explained that she did not want “anything 

to happen [to the child] sexually,” because “[Pirnie was] getting charged for [sexual assault of a child] right now.” Davis 

responded that although Pirnie had lived with her for the past 

several months, he was about to be sentenced in his criminal 

case and would move out of her house if he avoided incarceration. Davis explained that she also would not want Pirnie to 

have contact with the minor child, absent a court order.

On December 17, 2019, the district court issued an order 

finding clear and convincing evidence that a significant beneficial relationship exists between Davis and the minor child, that 

continuation of this relationship was in the best interests of the 

minor child, and that visitation between Davis and the minor 

child would not adversely interfere with Moats’ parent-child 

relationship. Thus, the district court granted Davis’ request 

for grandparent visitation, to include one weekend every other 

month; weekly telephone contact, lasting at least 30 minutes; 

one week in the summer; and 2 days during the last 2 weeks 

of December.
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DAVIS v. MOATS

Cite as 308 Neb. 757

On January 28, 2020, Davis filed a motion for order to show 

cause, arguing Moats should be found in contempt for failing 

to comply with the court’s December 2019 order. Davis alleged 

that she contacted Moats on December 23, 2019, in an attempt 

to schedule a visitation, but that Moats responded that she had 

not received the court’s order and that she and the minor child 

were in Oklahoma. Davis further alleged that on December 27, 

Moats refused visitation because the child was sick with the 

flu. The court entered an order on January 29, 2020, requiring Moats to show cause as to why she should not be held 

in contempt.

On April 10, 2020, the court found that Moats was aware 

of and understood the December 2019 order. The court found 

Moats to be in contempt of court and ordered her to allow 

visitation between Davis and the minor child, pursuant to the 

court’s previous order. The court ordered Moats to pay $500 in 

attorney fees.

On April 20, 2020, Moats filed a motion to vacate and strike 

the order granting grandparent visitation, the order to show 

cause, and the order finding Moats in contempt and requiring 

that she pay attorney fees. Moats argued that the court’s orders 

should be stricken as void, because the court lacked subject 

matter jurisdiction. Moats argued, inter alia, that Pirnie was an 

indispensable party and that the failure to join him in the action 

deprived the court of subject matter jurisdiction. Moats also 

argued that Davis’ petition was dismissed by operation of law, 

because Davis failed to serve Pirnie with a copy of the petition 

within 180 days of the filing of the petition.

The court held a hearing on May 5, 2020, to consider Moats’ 

motion. At the hearing, Davis offered exhibits 9 and 10, the 

affidavits of Davis and Pirnie. Both exhibits averred that Pirnie 

had actual knowledge of Davis’ petition for grandparent visitation and did not have any objection to its filing.

On May 8, 2020, the court overruled the motion to vacate 

and strike. The court noted that Moats had not complied with 

the visitation order or the order requiring the payment of 
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DAVIS v. MOATS

Cite as 308 Neb. 757

attorney fees, and further, the court ordered Moats to allow 

visitation between Davis and the minor child. Moats appeals.

ASSIGNMENTS OF ERROR

Moats assigns, restated, (1) that the December 17, 2019, 

order is void and the contempt proceedings a nullity, because 

the district court lacked subject matter jurisdiction, and (2) that 

the district court erred in receiving exhibits 9 and 10 into evidence, because they were irrelevant.

STANDARD OF REVIEW

[1] Determinations concerning grandparent visitation rights 

are initially entrusted to the discretion of the trial judge, whose 

determination, on appeal, shall be reviewed de novo on the 

record and affirmed in the absence of an abuse of the trial 

judge’s discretion. 1

[2] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 2

[3] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. 3

ANALYSIS

[4] In Nebraska, grandparent visitation is controlled by statute. 4 Under Neb. Rev. Stat. § 43-1802(1)(c) (Reissue 2016), a 

grandparent may seek visitation with his or her minor grandchild if the parents of the minor child have never been married but paternity has been legally established. Neb. Rev. Stat. 

§ 43-1803(1) (Reissue 2016) states that if the minor child’s 

parent or parents have never been married, a grandparent 

1 Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).

2 In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014).

3 Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172, 

949 N.W.2d 183 (2020).

4 Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019).
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seeking visitation shall file a petition in the district court in 

the county in which the minor child resides. Subsection (2) 

of § 43-1803 requires that a copy of the petition 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 by 

personal service or in the manner provided in Neb. Rev. Stat. 

§ 25-517.02 (Reissue 2016).

Moats contends that since Davis failed to include Pirnie as 

a party in this action and failed to properly serve Pirnie with 

a copy of the petition, the district court lacked subject matter jurisdiction to hear the matter. Davis counters that Moats 

lacks standing to raise the issues of Pirnie’s inclusion in the 

case and whether Pirnie was properly served with a copy of 

the petition.

Subject Matter Jurisdiction

[5-9] Subject matter jurisdiction is the power of a tribunal 

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 matter involved. 5 Subject matter jurisdiction also includes a court’s power to determine whether it has 

the authority to address a particular question within a general 

class or category that it assumes to decide or to grant the particular relief requested. 6 The failure to join an indispensable 

party to a case deprives the court of subject matter jurisdiction 

and cannot be waived. 7 Lack of subject matter jurisdiction 

may be raised at any time by any party or by the court sua 

sponte. 8 A court action taken without subject matter jurisdiction is void. 9

5 Omaha Expo. & Racing, supra note 3.

6 Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017).

7 See id.

8 Omaha Expo. & Racing, supra note 3.

9 Id.
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DAVIS v. MOATS

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Moats relies upon the Nebraska Court of Appeals’ decision 

in Beal v. Endsley 10 to support her contention that Pirnie is an 

indispensable party and that Davis’ failure to join him in the 

action deprives the district court of subject matter jurisdiction. 

In Beal, the Court of Appeals stated that “[i]n 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.” 11 However, the language in Beal

is not dispositive here for two reasons: (1) The portion of the 

opinion Moats quotes was merely dicta addressing how the 

case should have been captioned, and (2) the noncustodial parent entered a voluntary appearance in the matter. As a result, 

we find it necessary to revisit the concepts of necessary and 

indispensable parties.

Neb. Rev. Stat. § 25-323 (Reissue 2016) states 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.

[10,11] In Midwest Renewable Energy v. American Engr. 

Testing,

 12 we considered the application of § 25-323. In doing 

so, we noted that while, historically, this court has treated necessary parties the same as indispensable parties, the traditional 

definition of an indispensable party contained in the second 

clause of § 25-323 applies only to indispensable parties, not 

to necessary ones. We went on to explain that a “necessary 

party” and an “indispensable party” are two separate and distinct terms. In particular, we stated that necessary parties are 

parties who have an interest in the controversy, and should 

ordinarily be joined unless their interests are separable so that 

10 Beal v. Endsley, 3 Neb. App. 589, 529 N.W.2d 125 (1995).

11 Id. at 592, 529 N.W.2d at 128.

12 Midwest Renewable Energy, supra note 6.
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the court can, without injustice, proceed in their absence. The 

inclusion of a necessary party is within the trial court’s discretion. 13 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. However, there is no discretion as to 

the inclusion of an indispensable party. 14

The difference between a “necessary party” and an “indispensable party” is not a novel concept. In fact, the U.S. Supreme 

Court has long acknowledged the difference between the two. 

In an 1854 case, Shields et al. v. Barrow,

 15 the Supreme Court 

outlined three different classes of parties to a bill in equity. The 

Court stated that the first class was formal parties. The Court 

then defined the second class as “[p]ersons having an interest 

in the controversy, and who ought to be made parties, in order 

that the court may act on that rule which requires it to decide 

on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.” 16 The 

Court explained that these persons were commonly referred 

to as “necessary parties,” but “if their interests are separable 

from those of the parties before the court, so that the court can 

proceed to a decree, and do complete and final justice, without 

affecting other persons not before the court, [these persons] 

are not indispensable parties.” 17 The Court further defined the 

third class as those who have “an interest of such a nature 

that a final decree cannot be made without either affecting that 

interest, or leaving the controversy in such a condition that 

its final termination may be wholly inconsistent with equity 

13 Id. (citing J.K. Dean, Inc. v. KSD, Inc., 709 N.W.2d 22 (S.D. 2005)). See 

Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).

14 Id.

15 Shields et al. v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1854).

16 Id., 58 U.S. (17 How.) at 139.

17 Id.
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and good conscience.” 18 The Court noted that in a case where 

the rights of those before the court are inseparable from the 

rights of those absent, the latter are indispensable parties. 19

[12] Later, in Hoe v. Wilson,

 20 the U.S. Supreme Court held 

that a court must sua sponte invoke the indispensable party 

issue even though it was not raised by a party. In doing so, 

the Court determined that a trial court should cause an action 

to be properly amended to bring in the indispensable party, or 

dismiss it, if the amendment was not made. 21

[13,14] More recently, in Provident Bank v. Patterson,

 22 the 

U.S. Supreme Court held that whether a person is “indispen

sable,” that is, whether a particular lawsuit must be dismissed 

in the absence of that person, can be determined only in the 

context of particular litigation. The Court went on to hold that 

the decision whether to dismiss (i.e., the decision whether the 

person missing is “indispensable”) must be based on factors 

varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and 

some subject to balancing against opposing interests. 23

Most recently, in Morse v. Olmer,

 24 the Court of Appeals 

applied our indispensable party jurisprudence to the very issue 

before us now. In Morse, the appellate court determined that 

the noncustodial father was an indispensable party to the action 

for grandparent visitation due to his constitutionally protected 

parental rights. As such, the appellate court held that failure 

to join the noncustodial father as a party deprived the district 

18 Id.

19 Shields et al., supra note 15.

20 Hoe v. Wilson, 76 U.S. (9 Wall.) 501, 19 L. Ed. 762 (1869).

21 Id.

22 Provident Bank v. Patterson, 390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 2d 936 

(1968).

23 Id.

24 Morse v. Olmer, 29 Neb. App. 346, 954 N.W.2d 638 (2021).
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court of jurisdiction to consider the grandparents’ complaint 

for visitation.

[15,16] Here, we, too, recognize that the relationship between 

parent and child is constitutionally protected, and proceedings 

which impact that relationship must afford both parents due 

process of law. 25 Though the record before us is not clear, none 

of the parties contest that Pirnie has been determined to be the 

biological father of the minor child. As such, he has a constitutionally protected, fundamental right to make decisions concerning the care, custody, and control of the child, and actions 

for grandparent visitation may affect that right. 26 Therefore, 

we find the district court lacked the subject matter jurisdiction 

to make a determination as to Davis’ grandparent visitation 

rights without giving Pirnie the opportunity to participate in 

the proceedings.

Additionally, as mentioned above, § 43-1803(2) requires that 

a copy of the petition 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. We agree that it is clear from the 

language of § 43-1803 that both parents should be served with 

a copy of the petition in an action for grandparent visitation. As 

such, Pirnie had a statutory right to be served with a copy of 

the petition and given notice of the trial in the matter.

Davis, through the affidavits received as exhibits 9 and 10, 

contends that Pirnie was made aware of the proceedings and 

received a copy of the petition. Additionally, Pirnie’s affidavit 

states that he did not object to Davis’ request for visitation. 

However, Pirnie’s affidavit was executed in April 2020 and 

makes no indications that he had actual notice of the proceedings while they were occurring. Further, being aware of 

the proceedings or receiving a copy of the petition does not 

25 Id. See, also, Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 

2d 511 (1978).

26 See State on behalf of Tina K. v. Adam B., 307 Neb. 1, 948 N.W.2d 182 

(2020) (citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. 

Ed. 2d 49 (2000)).
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equate to receiving personal service of the petition as required 

by statute.

[17] Since Pirnie was not included in the proceedings, 

the district court lacked subject matter jurisdiction to hear 

Davis’ petition for grandparent visitation. As a result, the 

December 17, 2019, order granting grandparent visitation is 

void. A judgment entered by a court which lacks subject matter jurisdiction is void and may be attacked at any time in any 

proceeding. 27

[18,19] Since the order granting grandparent visitation is 

void, the order finding Moats in contempt of that order is also 

void. The rule is fundamental that where the court has no jurisdiction over the subject matter of the action, all proceedings 

in such action are void. 28 The rule is likewise well settled that 

refusal to obey a void order or judgment is not contempt. 29

[20-22] Where a lower court lacks 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. 30

When an appellate court is without jurisdiction to act, the 

appeal must be dismissed. 31 However, an appellate court has 

the power to determine whether it lacks jurisdiction over an 

appeal because the lower court lacked jurisdiction to enter 

the order; to vacate a void order; and, if necessary, to remand 

the cause with appropriate directions. 32

Vacating the December 2019 order granting grandparent 

visitation and the April 2020 order finding Moats in contempt does not dispose of this action. The matter remains 

27 VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993).

28 Wolski v. Lippincott, 147 Neb. 944, 25 N.W.2d 754 (1947).

29 Id.

30 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017).

31 Id.

32 Id.
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pending before the district court unless Moats’ other arguments 

have merit.

Untimely Service

Moats also argues that since Pirnie was not served within 

180 days of the commencement of Davis’ action, the matter was dismissed by operation of law. 33 Under § 25-217(2), 

each defendant in an action must be properly served within 

180 days of the commencement of the action. Subsection (3) 

of § 25-217 states that if any defendant is not properly served 

within the time specified in subsection (2), the action “against 

that defendant” is dismissed by operation of law. (Emphasis 

supplied.)

Contrary to Moats’ contention, nothing within § 25-217 

states that the action is dismissed against all the defendants or 

that the action stands dismissed as a whole. Further, we decline 

Moats’ invitation to expand § 25-217 to include dismissal of 

the action upon the failure to serve an indispensable party who 

was not originally included in the action. As such, this assignment of error is without merit.

Remaining Issues

[23] Moats also argues the district court erred in receiving 

exhibits 9 and 10 into evidence, because they were irrelevant. 

Exhibits 9 and 10 were received into evidence at the hearing on 

Moats’ motion to vacate the court’s judgment and were offered 

to show that Pirnie was aware of the proceedings and did not 

object to Davis’ request for grandparent visitation. However, 

because we have determined that the court lacked jurisdiction 

to hear this matter, we decline to consider this assignment 

of error. An appellate court is not obligated to engage in an 

analysis which is not needed to adjudicate the controversy 

before it. 34

33 See Neb. Rev. Stat. § 25-217 (Cum. Supp. 2020).

34 City of Sidney v. Municipal Energy Agency of Neb., 301 Neb. 147, 917 

N.W.2d 826 (2018).
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CONCLUSION

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 Moats in contempt of the order is also void and is hereby 

vacated. Therefore, since this appeal is taken from void orders, 

we lack jurisdiction to consider the same. Therefore, the matter is remanded to the district court for further proceedings 

consistent with this opinion.

Vacated and remanded for 

further proceedings.