Davis v. Moats, 308 Neb. 757

Background

Latonne Davis (paternal grandmother) filed a petition under Nebraska’s grandparent-visitation statute seeking regular visits with her grandchild; she named only the mother, Victoria Moats, as defendant and served only Moats.
Tate Pirnie is the child’s biological (noncustodial) father; the parties never married and paternity is undisputed.
The district court found by clear and convincing evidence that grandparent visitation was in the child’s best interests and entered a visitation order on December 17, 2019.
After Moats failed to comply, the court held her in contempt and ordered attorney fees; Moats moved to vacate, arguing the court lacked subject matter jurisdiction because Pirnie was not joined or personally served.
The district court denied the motion after admitting affidavits in which Pirnie said he was aware of the proceedings and did not object.
The Nebraska Supreme Court held Pirnie was an indispensable party whose constitutionally protected parental rights required notice and opportunity to participate; it vacated the visitation and contempt orders and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument (Davis)	Defendant's Argument (Moats)	Held
Whether the district court had subject matter jurisdiction to grant grandparent visitation when the biological father was not joined or served	Davis argued the father had actual knowledge (affidavit) and did not object, and Moats lacked standing to raise joinder/service defects	Moats argued Pirnie was an indispensable party and the court thus lacked jurisdiction without his joinder and service	Court held Pirnie was an indispensable party with protected parental rights; lack of his joinder/service deprived the court of subject matter jurisdiction, so the visitation order was void
Whether failure to serve the father within 180 days dismissed the action by operation of law	Davis implicitly relied on affidavits and on the proceeding going forward	Moats argued §25-217(2)/(3) dismisses actions against a defendant not served within 180 days	Court held §25-217’s dismissal applies to the unserved defendant only and refused to expand it to dismiss the whole action for failure to serve a nonjoined indispensable party; this argument failed
Validity of contempt and fee orders entered for violation of the visitation order	Davis sought enforcement of the prior order	Moats argued contempt was invalid because the underlying visitation order was void for lack of jurisdiction	Court held the contempt and fee orders were void because they depended on the void visitation order
Admissibility/relevance of affidavits that the father had notice and did not object	Davis offered affidavits to show Pirnie knew and consented	Moats objected that affidavits were irrelevant to jurisdictional and service defects	Court declined to decide relevance because it resolved the case on jurisdictional grounds (lack of personal service and indispensable-party principles)

Key Cases Cited

Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017) (distinguishing necessary vs indispensable parties under Neb. Rev. Stat. § 25-323)
Shields v. Barrow, 58 U.S. (17 How.) 130 (1854) (classic articulation of classes of parties and the indispensable-party concept)
Hoe v. Wilson, 76 U.S. (9 Wall.) 501 (1869) (trial court must raise indispensable-party defects sua sponte and amend or dismiss)
Provident Bank v. Patterson, 390 U.S. 102 (1968) (whether a party is indispensable is context-dependent and requires multi-factor balancing)
Morse v. Olmer, 29 Neb. App. 346, 954 N.W.2d 638 (2021) (Nebraska Ct. App. holding noncustodial parent indispensable in a grandparent-visitation action)
Troxel v. Granville, 530 U.S. 57 (2000) (parental rights are fundamental and require due process when infringed)
Quilloin v. Walcott, 434 U.S. 246 (1978) (parental rights jurisprudence concerning custody and visitation)