In re Adoption of Shaylynn V.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE ADOPTION OF SHAYLYNN V.
Cite as 32 Neb. App. 642
In re Adoption of Shaylynn V., a minor child.
Michael M. and Sharel M., appellees,
v. Eric S., appellant.
___ N.W.2d ___
Filed February 6, 2024. 	No. A-23-429.
1. 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.
2. Adoption: Jurisdiction: Time. When a party claims that procedural
defects affect the validity of an adoption decree and seeks relief within 2
years of the entry of the adoption decree, the county court has authority
over the matter pursuant to Neb. Rev. Stat. § 43-116 (Reissue 2016).
Appeal from the County Court for Platte County: Denise J.
Kracl, Judge. Reversed and remanded with directions.
Linsey Moran Bryant, of Sidner Law, for appellant.
Emilee Higgins, of Law Office of E. Higgins, L.L.C., for
appellees.
Riedmann, Arterburn, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
The county court for Platte County dismissed a biological
father’s application to set aside a stepparent adoption, find-
ing that it sounded in equity and that therefore, the county
court lacked jurisdiction to address it. The biological father
appealed. Because statutory authority provides jurisdiction,
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:43 AM CDT

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE ADOPTION OF SHAYLYNN V.
Cite as 32 Neb. App. 642
we reverse the order dismissing the motion and remand the
cause for further proceedings.
BACKGROUND
On November 15, 2022, Sharel M. and Michael M. filed a
petition for stepparent adoption, stating that Sharel was the
biological mother of Shaylynn V., that Michael was Sharel’s
husband, and that he wished to adopt Shaylynn. The petition
alleged that consent from Shaylynn’s biological father, Eric
S., was not required because he had abandoned Shaylynn
for at least 6 months prior to the filing of the petition. On
November 28, Sharel and Michael’s counsel filed a motion for
substitute service because efforts to determine Eric’s current
address had failed. The county court granted the motion for
substitute service, allowing service to be completed by publi-
cation. Proof of publication was filed.
The adoption decree was entered on February 9, 2023,
which included a finding that Eric had abandoned Shaylynn.
On February 21, Eric filed an application to set aside the
adoption pursuant to Neb. Rev. Stat. § 43-116 (Reissue 2016).
In it, he alleged that the district court for Dodge County
entered a paternity and child support order in February 2015
in which it determined Eric was Shaylynn’s biological father.
Eric alleged that the district court for Dodge County retained
jurisdiction over Shaylynn and had not given its consent to the
adoption. He further averred that he had not received proper
notice as required by statute. Eric requested the matter be set
for hearing.
On March 2, 2023, Sharel and Michael filed a motion to
dismiss Eric’s application, stating that the district court did
not retain jurisdiction over Shaylynn and that Eric had been
served by publication. They requested that Eric’s applica-
tion be dismissed with prejudice. The county court set the
matter for what it termed a “Pretrial Hearing,” to be held on
March 14.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE ADOPTION OF SHAYLYNN V.
Cite as 32 Neb. App. 642
At the March 14, 2023, hearing, the county court noted
that the purpose of the hearing was to determine whether
Eric’s motion “should be heard.” Both parties offered exhibits
and arguments were made. The county court took the matter
under advisement and subsequently entered a written order
ruling that an evidentiary hearing should be held to determine
whether the adoption and ruling of abandonment by Eric
should be set aside. However, 1 day before that hearing was to
occur, the county court entered an order stating:
It has come to the Court’s attention that the case sched-
uled for hearing tomorrow is a motion to set aside which
sounds in equity. “A county court only acquires equity
jurisdiction through legislative action.” In re Hemmer,
260 Neb. 827 at 829 quoting Scherbak v. Kissler, 245
Neb. 10 (1994). “There is no specific mandate in the
adoption statutes granting a county court equity jurisdic-
tion to set aside an adoption.” In re Hemmer, Id.
The Motion to Set Aside is hereby dismissed and all
hearings are canceled.
Eric appeals.
ASSIGNMENTS OF ERROR
Eric assigns, summarized and restated, that the county court
was without jurisdiction to grant the petition for stepparent
adoption and erred in dismissing his application to set aside.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d
311 (2018).
ANALYSIS
The county court determined that the application to set
aside the adoption sounded in equity and that it had no juris-
diction over it without a specific mandate in the adoption
statutes granting it such authority. However, § 43-116 allows

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE ADOPTION OF SHAYLYNN V.
Cite as 32 Neb. App. 642
a party to attack the validity of an adoption decree within 2
years of its entry. It states:
When any court in the State of Nebraska shall . . . (2)
hereafter enter of record such a decree of adoption, it
shall in like manner be conclusively presumed that the
adoption and all instruments and proceedings in connec-
tion therewith are valid in all respects notwithstanding
some defect or defects may appear on the face of the
record, or the absence of any record of such court, unless
an action is brought within two years from the entry of
such decree of adoption attacking its validity.
§ 43-116. Here, Eric filed an application to set aside the
adoption, challenging whether it was properly entered, within
weeks of its entry. The county court, by virtue of § 43-116, had
jurisdiction over this matter.
The case cited by the county court in its determination
that it lacked jurisdiction involved a request to set aside an
adoption decree that had been entered over 30 years prior to
the challenge. See In re Adoption of Hemmer, 260 Neb. 827,
619 N.W.2d 848 (2000). In In re Adoption of Hemmer, the
movant did not attack the validity of the adoption; rather, she
sought to set it aside because her adoptive father abused her
as a child. The Nebraska Supreme Court declined to address
whether the 2-year statute of limitations could be tolled
because the movant neither claimed nor offered evidence of
any procedural defect or invalidity that would provide a basis
in law under § 43-116 to set aside the adoption.
[2] Unlike In re Adoption of Hemmer, supra, Eric asserted
two bases upon which he claimed the adoption decree was
invalid: (1) the district court retained jurisdiction over Shaylynn
and did not file a consent, and (2) Eric did not receive proper
statutory notice. Because Eric claimed procedural defects that
affected the validity of the adoption decree and sought relief
within 2 years of the entry of the adoption decree, the county
court had authority over the matter pursuant to § 43-116. The
county court erred in determining otherwise.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE ADOPTION OF SHAYLYNN V.
Cite as 32 Neb. App. 642
Sharel and Michael argue that regardless of what the
March 14, 2023, hearing was titled, it was in fact an eviden-
tiary hearing on Eric’s application because the county court
received evidence. They ask this court to infer that the county
court’s determination that only equity jurisdiction was avail-
able constitutes a finding of no apparent error on the record.
But this argument is refuted by the record. The county court
specifically stated at the March 14 hearing that the purpose of
the hearing was to determine whether Eric’s application to set
aside the adoption should be heard. Following that hearing,
the county court ruled that “an evidentiary hearing should be
held in this case to decide whether the adoption and ruling of
abandonment by biological father should be set aside.” The
county court did not decide the merits of Eric’s application;
it decided only whether the application warranted an eviden-
tiary hearing. The merits of Eric’s application remain pending
and are to be decided by the county court following an evi-
dentiary hearing as previously scheduled.
CONCLUSION
The county court erroneously determined it did not have
jurisdiction over the matter. The order dismissing Eric’s appli-
cation to set aside the adoption is reversed, and the cause is
remanded to the county court to hold an evidentiary hearing as
previously scheduled.
Reversed and remanded with directions.