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Nebraska Supreme Court Advance S

300 Nebraska Report

HEIDEN v. NORRIS

Cite as 300 Neb. 171

Frederick Heiden nd Ann Heiden, husban

appellees, v. Tracy J. Norris, appella

___ N.W.2d ___

Filed June 8, 2018. No. S-17-689.

1. Visitation: Appeal and Error. Determinations concerning grandparent 

visitation are initially entrusted to the discretion of the trial court, whose 

determinations on appeal will be reviewed de novo on the record and 

affirmed in the absence of an abuse of the trial court’s discretion.

2. Standing. Under the doctrine of standing, a court may decline to determine the merits of a legal claim because the party advancing it is not 

properly situated to be entitled to its judicial determination.

3. Statutes. Statutory interpretation presents a question of law.

4. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and 

unambiguous.

5. Statutes: Legislature: Intent. In discerning the meaning of a statute, 

a court determines and gives effect to the purpose and intent of the 

Legislature as ascertained from the entire language considered in its 

plain, ordinary, and popular sense.

6. Statutes. A court must attempt to give effect to all parts of a statute, 

and if it can be avoided, no word, clause, or sentence will be rejected as 

superfluous or meaningless.

7. ____. The whole and every part of a statute must be considered in fixing 

the meaning of any of its parts.

8. Statutes: Intent. In construing a statute, a court looks to the statutory 

objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served. A court must then reasonably or 

liberally construe the statute to achieve the statute’s purpose, rather than 

construing it in a manner that defeats the statutory purpose.

9. Statutes: Courts. Generally, statutes in derogation of the common law 

are to be strictly construed.

Nebraska Supreme Court Online Library

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

06/22/2018 12:12 AM CDT
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HEIDEN v. NORRIS

Cite as 300 Neb. 171

10. Visitation: Statutes: Courts. Grandparent visitation did not exist at 

common law, and thus should be strictly limited to the definition provided by law.

Appeal from the District Court for Hamilton County: Rach

A. Daugherty, Judge. Order vacated, and cause remanded wit

directions to dismiss.

James M. Buchanan, P.C., L.L.O., for appellant.

Scott D. Grafton, of Grafton Law Office, P.C., L.L.O., for 

appellees.

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

Papik, JJ., and Welch, Jud

Heavican, C

INTRODUCTION

Frederick Heiden and Ann Heiden filed a complaint to 

establish grandparent visitation. Visitation was granted. Tracy 

J. Norris, the biological father of the children impacted by the 

order, has appealed. The primary issue on appeal is whether 

the Heidens are grandparents for purposes of the grandparent visitation statutes, Neb. Rev. Stat. §§ 43-1801 to 43-1803 

(Reissue 2016). We vacate the order of visitation and remand 

the cause with directions to dismiss.

BACKGROUND

Tracy and Katherine Norris were divorced in 2016 in 

Hamilton County, Nebraska. The couple had three children 

together. Katherine died on July 14, 2016. Since that time, the 

children have resided with Tracy in Fort Collins, Colorado; 

the Heidens live in Hampton, Nebraska. The record includes 

a partial transcript from Tracy and Katherine’s divorce proceeding in which the Heidens acknowledge that they were 

not Katherine’s legal (adoptive or biological) parents, but had 

raised Katherine since she was 3 years of age.

On October 21, 2016, the Heidens sought grandparent visitation, alleging that they were
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HEIDEN v. NORRIS

Cite as 300 Neb. 171

grandparents of the minor children as the context requires

as they have acted as the grandparents of the minor children during their entire lives. Prior to the death of the 

minor children’s mother, a significant beneficial relationship existed between the minor children and the [Heidens] 

as they resided together from approximately November 

of 2013 to July 14th, 2016 and the [Heidens] had significant contact with each of the children from the time they 

were born.

(Emphasis supplied.) Tracy was apparently served with this 

complaint, but did not appear. An order granting default judgment and visitation to the Heidens was entered on January 

5, 2017.

On January 11, 2017, Tracy filed a motion to alter or amend, 

and on February 2, he filed a motion to vacate, alleging that 

the Hamilton County District Court did not have jurisdiction. 

At the hearing, Tracy explained that he did not respond to the 

complaint because he did not think the Heidens would be able 

to establish that they were the children’s grandparents.

Following the district court’s conclusion that it had jurisdiction, Tracy filed another motion on May 8, 2017, entitled 

“Motion to Vacate, Motion to Alter or Amend, or, Notice of 

Appeal.” On June 29, the district court sustained this motion in 

part, amending the prior visitation order. Tracy appeals.

ASSIGNMENT OF ERROR

Tracy assigns that the district court erred in finding that the 

Heidens had standing to bring this action.

STANDARD OF REVIEW

[1] Determinations concerning grandparent visitation are 

initially entrusted to the discretion of the trial court, whose 

determinations on appeal will be reviewed de novo on the 

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

court’s discretion.1

1 See Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
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HEIDEN v. NORRIS

Cite as 300 Neb. 171

ANALYSIS

Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it 

has jurisdiction over the matter before it.2 The district court 

concluded that it had jurisdiction under the Uniform Child 

Custody Jurisdiction and Enforcement Act.3 Having reviewed 

the record, we agree.4

We turn to Tracy’s sole argument on appeal that the 

Heidens lacked standing to bring an action for grandparent visitation. Tracy contends that the Heidens are unable to 

prove that they are the children’s grandparents for purposes of 

Nebraska’s grandparent visitation statutes because they were 

not Katherine’s “biological or adoptive parents” as required by 

those statutes.5

[2] Tracy conflates standing with the merits of the Heidens’ 

claim. Under the doctrine of standing, a court may decline 

to determine the merits of a legal claim because the party 

advancing it is not properly situated to be entitled to its judicial determination.6

 But as we have said previously, the focus 

of the standing inquiry is “on the party, not the claim itself.”7

For that very reason, in considering standing, the legal and 

factual validity of the claim presented must be assumed.8

Here, if the Heidens’ assertions that they are grandparents 

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

3 Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016).

4 See § 43-1239.

5 Brief for appellant at 7. See § 43-1801.

6 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 

N.W.2d 252 (2010).

7 Id. at 541-42, 788 N.W.2d at 260.

8 See, e.g., Cotrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir. 2017); 

Delaware Dept. of Nat. Resources v. F.E.R.C., 558 F.3d 575 (D.C. Cir. 

2009) (citing Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 

343 (1975)); Initiative and Referendum Institute v. Walker, 450 F.3d 1082 

(10th Cir. 2006); Mr. Furniture v. Barclays American/Commercial Inc., 

919 F.2d 1517 (11th Cir. 1990).
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within the meaning of § 43-1801 and entitled to visitation 

under the statute are assumed to be valid, it becomes plain that 

the Heidens are the proper parties to bring such a claim and 

thus have standing.

But the crux of Tracy’s argument is that the Heidens were 

not entitled to an order of visitation. Tracy contends that 

because the Heidens were not Katherine’s legal parents, they 

are not grandparents under our statutes and thus are not entitled 

to consideration of their request for visitation. We turn to that 

contention, which is a matter of statutory interpretation.

Section 43-1802 sets forth a grandparent’s right to visitation 

in part as follows:

(1) A grandparent may seek visitation with his or her 

minor grandchild if:

(a) The child’s parent or parents are deceased;

(b) The marriage of the child’s parents has been dissolved or petition for the dissolution of such marriage 

has been filed, is still pending, but no decree has been 

entered; or

(c) The parents of the minor child have never been 

married but paternity has been legally established.

(2) 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 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.
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HEIDEN v. NORRIS

Cite as 300 Neb. 171

As relevant to this appeal, § 43-1801 provides that “unless the 

context otherwise requires, grandparent shall mean the biological or adoptive parent of a minor child’s biological or adoptive parent.”

This court has found Nebraska’s grandparent visitation 

statutes to be constitutional, relying in part on the limitation 

of only biological and adoptive grandparents as those entitled 

to visitation, as well as a limitation of those circumstances 

in which a grandparent could seek visitation and a high 

standard of proof required to show entitlement to an order 

of visitation.9

[3-5] The issue is one of statutory interpretation, which 

presents a question of law.10 Statutory language is to be given 

its plain and ordinary meaning, and an appellate court will 

not resort to interpretation to ascertain the meaning of words 

which are plain, direct, and unambiguous.11 In discerning the 

meaning of a statute, a court determines and gives effect to 

the purpose and intent of the Legislature as ascertained from 

the entire language considered in its plain, ordinary, and popular sense.12

[6-8] A court must attempt to give effect to all parts of a 

statute, and if it can be avoided, no word, clause, or sentence 

will be rejected as superfluous or meaningless.13 The whole and 

every part of a statute must be considered in fixing the meaning of any of its parts.14 In construing a statute, a court looks 

to the statutory objective to be accomplished, the evils and 

mischiefs sought to be remedied, and the purpose to be served. 

A court must then reasonably or liberally construe the statute 

9 Hamit v. Hamit, supra note 1.

10 Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018).

11 Id.

12 Id.

13 Id.

14 Id.
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to achieve the statute’s purpose, rather than construing it in a 

manner that defeats the statutory purpose.15

[9,10] “Generally, statutes in derogation of the common law 

are to be strictly construed.”16 Grandparent visitation did not 

exist at common law,17 and thus should be strictly limited to the 

definition provided by law. Here, the plain meaning of the term 

“grandparent” excludes the Heidens.

The Heidens argue, however, that the term “grandparent” 

means a biological or adoptive parent of the child’s biological 

or adoptive parent and that in this case, the “context” shows 

that they are the children’s grandparents. We disagree.

A review of our case law suggests that the “context” referred 

to in § 43-1801 is not the factual circumstances presented by 

a case, but the context of the statutory language itself.18 In Pig 

Pro Nonstock Co-op v. Moore,

19 we examined, but ultimately 

rejected, cases from other jurisdictions that went beyond the 

context of the statute to the facts in order to determine whether 

a cooperative was designated “nonprofit” for purposes of a statutory scheme. As another court has since explained: “The term 

‘context’ in the statutory phrase ‘unless the context otherwise 

requires’ means the context ‘within which [a defined statutory 

term] is used within the statute’s substantive provisions.’”20

15 Id.

16 73 Am. Jur. 2d Statutes § 181 at 415 (2012).

17 See Hamit v. Hamit, supra note 1.

18 See, Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017); State 

v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016); State v. Covey, 290 

Neb. 257, 859 N.W.2d 558 (2015); First Data Corp. v. State, 263 Neb. 

344, 639 N.W.2d 898 (2002). But see School Dist. of Omaha v. State 

Board of Education, 187 Neb. 76, 187 N.W.2d 592 (1971).

19 Pig Pro Nonstock Co-op v. Moore, 253 Neb. 72, 568 N.W.2d 217 (1997).

20 People v. Mendenhall, 363 P.3d 758, 766 (Colo. App. 2015), quoting Pima 

Financial Service Corp. v. Selby, 820 P.2d 1124, 1128 (Colo. App. 1991). 

See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 

506 U.S. 194, 113 S. Ct. 716, 121 L.Ed.2d 656 (1993).
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Moreover, we note that a narrow definition of the term 

“grandparent” was a factor in our conclusion that such visitation statutes were constitutional. We specifically noted in 

Hamit v. Hamit21 that “Nebraska’s statutes are . . . narrowly 

drawn . . . and explicitly protect parental rights while taking 

the child’s best interests into consideration.”

Because the plain language of the statutes provides that a 

grandparent is defined as the biological or adoptive parent of 

a minor child’s biological or adoptive parent, and because the 

Heidens failed to show that they were Katherine’s biological 

or adoptive parents—indeed the record in this case affirmatively shows that they were not Katherine’s biological or 

adoptive parents—the Heidens are not entitled to an order of 

visitation under §§ 43-1801 to 43-1803. The district court’s 

order of visitation is vacated, and the cause is remanded to the 

district court with directions to dismiss.

CONCLUSION

The district court erred in granting the Heidens’ request for 

grandparent visitation. We vacate the order of visitation, and 

remand the cause with directions to dismiss.

 Order vacated, and cause re

with directions to dismis

21 Hamit v. Hamit, supra note 1, 271 Neb. at 677, 715 N.W.2d at 527.