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Dean D. v. Rachel S.

Court of Appeals of Nebraska

December 18, 2018

Dean D. and Michelle D., appellants.
Rachel S., appellee.

         1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's grant of a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

         3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

         4. Parties: Standing: Jurisdiction. A party must have standing before a court can exercise jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding.

         5. Standing. Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination. The focus is on the party, not the claim itself.

         6. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.

         7. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy which entitles a party to invoke the jurisdiction of the court.

         8. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.

         [26 Neb.App. 679] 9. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

          Appeal from the District Court for Gage County: Ricky A. Schreiner, Judge.

          Benjamin H. Murray, of Germer, Murray & Johnson, for appellants.

          Dustin A. Garrison, of Garrison Law Firm, and Lyle J. Koenig, of Koenig Law Firm, for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Bishop, Judge.


         Dean D. and Michelle D. filed an action in the district court for Gage County seeking grandparent visitation with their grandson, Tayvin D. It is undisputed by the parties that subsequent to Dean and Michelle's filing, their son relinquished his parental rights to Tayvin and Tayvin was later adopted by his stepfather. After the adoption, Tayvin's mother moved to dismiss Dean and Michelle's action for grandparent visitation based on standing and mootness principles. Although the district court concluded that Dean and Michelle still had standing, it granted the motion to dismiss because it found that the case had become moot. Dean and Michelle appeal. We affirm in part, and in part reverse and remand for further proceedings.


         Rachel S. and Taylor D. are the biological parents of Tayvin, born in 2009. Rachel and Taylor divorced in 2013; Rachel subsequently remarried.

         [26 Neb.App. 680] On October 17, 2016, Dean and Michelle, who are Taylor's parents, filed an action in the district court seeking grandparent visitation with Tayvin pursuant to Neb. Rev. Stat. § 43-1802 (Reissue 2016). Dean and Michelle acknowledged that Rachel had legal and physical custody of Tayvin. In support of their request for grandparent visitation, Dean and Michelle alleged (1) they had retained significant contact with Tayvin since his birth, including personal contact at least once every month, overnight visitation during some of the months, and extended visitation time of 1 to 2 weeks every summer; (2) they had provided financial support to Tayvin; and (3) they had an existing "close . . . significant beneficial relationship" with Tayvin, which was in his best interests to maintain. Dean and Michelle requested visitation consisting of one weekend per month, weekly contact for a specified time period, alternating holiday visitation, and 2 weeks of ...

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