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06/10/2022 01:06 AM CDT
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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 indepen-
dent 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 jurisdic-
tion 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 presump-
tion 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 fur-
ther proceedings.
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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 visi-
tation 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 juris-
diction. 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 dis-
miss. 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] unconstitu-
tional 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 experi-
ences with Suzette and described his impressions of Suzette
and Shauna’s relationship. Shauna’s sister averred in her affi-
davit 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 hear-
ing, 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 infringe-
ment 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 inde-
pendent 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 unconsti-
tutional 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 “breath
takingly 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 affida-
vit 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 evi-
dence 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 relation-
ship 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 visita-
tion 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 jurisdic-
tion 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 sup-
port 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 consider-
ably 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 jurisdic-
tion 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 jurisdic-
tion over a petition; rather, it simply means that the grand
parent 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 con-
cluded 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 visita-
tion. We decline that invitation. The record in this case dem-
onstrates 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 sub-
ject matter jurisdiction. As such, we vacate the court’s dis-
missal on those grounds, and we remand the cause for further
proceedings.
Vacated and remanded for
further proceedings.