Carlos H. v. Lindsay M.

in contempt.37 Yet even if the party appeals the order, the
party cannot revoke the joint return. The party’s only avenue
for relief from federal tax liability is the tax code’s inno-
cent spouse statute. As discussed, that option is a precarious
road at best. Thus, the tax code’s time limitations also weigh
against permitting trial courts to order the parties to file a
joint return.
[8] For all of these reasons, we hold that a trial court does
not have discretion to compel parties seeking marital dissolu-
tion to file a joint income tax return.
CONCLUSION
We conclude that the Court of Appeals erred in holding
that a district court has discretion to compel the parties to a
marital dissolution proceeding to file a joint income tax return.
Because a trial court can equitably adjust its division of the
marital estate to account for a spouse’s unreasonable refusal
to file a joint return, resort to a coercive remedy that carries
potential liability is unnecessary. We therefore reverse that
portion of the Court of Appeals’ decision affirming the district
court’s order requiring the parties to file a joint tax return. We
remand the cause to the Court of Appeals with directions to
remand the cause to the district court with directions to vacate
that portion of its order that we have reversed.
R eveRsed and Remanded with diRections.
37 See Ahmad, supra note 9.
caRlos h., appellant, v.
lindsay m., appellee .
815 N.W.2d 168
Filed June 15, 2012. 	No. S-11-548.
1. Adoption: Appeal and Error. Appeals in adoption proceedings are reviewed by
an appellate court for error appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms to the law,
1004 	283 NeBrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
4. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which requires
an appellate court to reach its conclusions independent from a trial court.
5. Courts: Parties: Justiciable Issues: Words and Phrases. The capacity to sue is
the right to come into court. A party has capacity when it has the legal authority
to act, regardless of whether it has a justiciable interest in the controversy.
6. Minors: Mental Competency: Guardians and Conservators: Guardians Ad
Litem. Minors and incompetents are considered to be under a legal disability and
are therefore unable to sue or be sued in their individual capacities; such persons
are required to appear in court through a legal guardian, a next friend, or a guard-
ian ad litem.
7. Rules of the Supreme Court: Jurisdiction: Parties. Under the Nebraska Court
rules of pleading in Civil Cases, the capacity of a party to sue or be sued need
not be averred except to show the jurisdiction of the court.
8. Actions: Minors: Guardians and Conservators. Nebraska law provides that the
defense of an infant must be by a guardian for the suit, who may be appointed by
the court in which the action is prosecuted.
9. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, then the appellate court acquires no jurisdiction.
10. ____: ____. When an appellate court is without jurisdiction to act, the appeal
must be dismissed.
Appeal from the County Court for Sarpy County: RobeRt c.
westeR, Judge. Appeal dismissed.
Hugh 	I. Abrahamson, 	of Abrahamson 	Law 	Office, 	for
appellant.
kelly N. Tollefsen, of DeMars, Gordon, Olson, Zalewski,
Wynner & Tollefsen, for appellee.
heavican, c.J., wRight, connolly, stephan, mccoRmack ,
and milleR-leRman, JJ., and piRtle , Judge.
heavican, c.J.
NATUre OF CASe
On August 11, 2010, Lindsay M. gave birth to Alexander
M., whose biological father is Carlos H. Lindsay and Carlos,
CArLOS H. v. LINDSAY M. 	1005
Cite as 283 Neb. 1004

who were both 15 years of age at the time of Alexander’s birth,
were never married. Lindsay planned to place the child for
adoption, but Carlos objected and sought custody. The county
court found that Carlos did not timely file his objection to the
adoption and that Carlos was not a proper party to bring an
action, because he is a minor.
We find that because Carlos is a minor, he lacked capacity
to bring this action, and that therefore, the county court lacked
jurisdiction. It follows that this court lacks jurisdiction, and the
appeal must be dismissed.
FACTS
Notice Prior to Alexander’s Birth.
Lindsay alleges that prior to Alexander’s birth, she sent
Carlos the notice required by Neb. rev. Stat. § 43-104.08
(reissue 2008). Section 43-104.08 provides that when a bio-
logical mother to a child born out of wedlock contacts an
adoption agency to relinquish her rights to a child, the adop-
tion agency shall attempt to establish the identity of the father
and attempt to inform the father of his right to execute a relin-
quishment and consent to adoption or a denial of paternity and
waiver of rights. The record reflects that Carlos received the
notice on or about June 2, 2010.
Notice of Objection to Adoption.
Carlos alleges that he filed a “Notice of Objection to Adoption
and Intent to Obtain Custody” (Notice), which acknowledged
that he is the baby’s father. Although Carlos does not con-
test any facts, we note that the record includes a copy of the
Notice indicating that it was signed on August 12, 2010, and
witnessed by Christian H. The record before the court does
not identify Christian. At oral argument, he was identified as
Carlos’ brother.
The Notice shows that it was filed and received by the
Department of Health and Human Services (DHHS) on August
16, 2010. Christian stated in an affidavit that on August 12,
he personally tried to deliver the Notice to the DHHS office
in papillion, Nebraska, in compliance with the instructions on
the DHHS Web site. The Web site states that the Notice may
1006 	283 NeBrASkA repOrTS

be filed at any DHHS office and that “[t]he date of the filing
is the date of actual receipt or the postmark when the notice is
mailed.” Christian stated that two workers in the office refused
to accept the Notice. Christian then sent the form via certified
mail to the DHHS office in Lincoln, Nebraska. After several
telephone conversations with counsel, Christian returned to the
papillion DHHS office on August 12 and delivered the Notice,
which he asserted was accepted on that date.
Petition to Adjudicate.
On September 17, 2010, Carlos filed a petition for adjudi-
cation of the Notice. The petition alleged that Alexander was
born within 5 days of the filing of the Notice. Carlos asked the
court to adjudicate the Notice and determine whether Carlos’
consent to the proposed adoption was required.
Lindsay filed an answer and counterclaim, in which she
alleged that Carlos had reasonable notice of the pregnancy and
that he filed the petition to adjudicate on September 23, 2010,
which was more than 30 days after the Notice was filed with
DHHS on August 16. She alleged that Alexander was currently
residing in “cradle care” with the prospective adoptive family,
who had cared for him since he left the hospital on August 13.
Lindsay stated that she intended to sign a valid relinquishment
and consent within 60 days of her receipt of the Notice, pend-
ing the determination of Carlos’ rights under Neb. rev. Stat.
§ 43-104.05(2) (reissue 2008). She asked the court to find that
Carlos failed to timely file a petition for adjudication of the
Notice and to determine whether his consent to the adoption
is necessary.
Hearing.
At a hearing on October 12, 2010, Carlos’ counsel stated
that there was no question that the petition was filed more than
30 days after the filing of the Notice. However, he argued that
§ 43-104.05 was not applicable, because even though Carlos
did not file the Notice within 30 days, Lindsay did not file
her consent to adoption within 60 days of the filing of the
Notice. We note that the record includes a copy of the consent
to relinquishment signed by Lindsay on October 14, which
CArLOS H. v. LINDSAY M. 	1007
Cite as 283 Neb. 1004

was within 60 days of the filing of the Notice with DHHS on
August 16.
County Court Order.
The county court entered an order on October 21, 2010,
finding that the petition for adjudication of the Notice was
not filed within 30 days of the filing of the Notice. The court
also found that because Carlos was 15 years old, he was not
a proper party, because the action must be maintained by a
guardian or next friend pursuant to Neb. rev. Stat. § 25-307
(reissue 2008). Accordingly, a trial date was not set.
First Appeal.
Carlos appealed, and in case No. A-10-1141, the Nebraska
Court of Appeals dismissed the appeal in a decision without
opinion on March 29, 2011, finding that the county court’s
order was not a final order.
Summary Judgment Motion and Order.
In an apparent attempt to obtain a final, appealable order,
Carlos filed a motion for summary judgment on March 29,
2011. On June 1, the county court entered an order reiterating
its ruling of October 21, 2010, finding that Carlos is a minor
and incapable of bringing this action in his own name and that
the action was filed more than 30 days after the Notice was
filed. The motion for summary judgment was denied, and the
action dismissed. Carlos again appeals. We moved the case
to our docket on our own motion pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.1
ASSIGNMeNTS OF errOr
Carlos argues, restated and summarized, that the trial court
abused its discretion (1) in failing to find that § 43-104.05
is against public policy (and a violation of equal protection)
because it treats the mother and father differently in adoption
cases, giving the father 30 days to object, while the mother has
1 See Neb. rev. Stat. § 24-1106(3) (reissue 2008). See, also, Riggs v.
Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
1008 	283 NeBrASkA repOrTS

60 days to sign her relinquishment; (2) in refusing to determine
that Lindsay filed her relinquishment out of time; (3) by over-
ruling Carlos’ motion for summary judgment; (4) in making
the minority of the father an issue while not considering the
minority of the mother, in violation of equal protection; (5)
in failing to find that the statute is tolled until Carlos reaches
majority; and (6) in determining that because Carlos is a minor,
his parental rights are diminished.
STANDArD OF reVIeW
[1,2] Appeals in adoption proceedings are reviewed by
an appellate court for error appearing on the record.2 When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.3
ANALYSIS
[3,4] 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, irrespective of whether
the issue is raised by the parties.4 Determination of a jurisdic-
tional issue which does not involve a factual dispute is a matter
of law which requires an appellate court to reach its conclu-
sions independent from a trial court.5
Carlos was 15 years old at the time this action was filed. The
county court determined that because Carlos was a minor, he
was incapable of bringing the action in his own name. Lindsay
was also 15 years old. We must therefore decide whether either
party had the capacity to sue or be sued.
A Nebraska statute addresses the incapacity of a minor:
except as provided by the Nebraska probate Code, the
action of an infant shall be commenced, maintained, and
prosecuted by his or her guardian or next friend. Such
2 In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
3 In re Estate of Craven, 281 Neb. 122, 794 N.W.2d 406 (2011).
4 In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
5 See id.
CArLOS H. v. LINDSAY M. 	1009
Cite as 283 Neb. 1004

actions may be dismissed with or without prejudice by
the guardian or next friend only with approval of the
court. When the action is commenced by his or her next
friend, the court has power to dismiss it, if it is not for
the benefit of the infant, or to substitute the guardian of
the infant, or any person, as the next friend. Any action
taken pursuant to this section shall be binding upon
the infant.6
This court has held:
In this state an action of an infant must be brought by
his guardian or next friend and when such an action is
brought by a guardian of the infant, the court has power,
for cause, to substitute the next friend in place of the
guardian. . . . The district court has authority to and it
should appoint a guardian ad litem or permit their next
friend to appear for unrepresented, interested infants.7
In Macku v. Drackett Products Co.,8 we noted:
[A]t common law an infant could sue only by a guardian,
because an infant was not sui juris—a person with legal
capacity to act for oneself. . . . Absent prosecution by a
guardian or next friend, an infant’s action was subject to
a demurrer as a result of the plaintiff’s lack of capacity
to sue.
We then noted that § 25-307 recognizes the common law
regarding an infant’s lack of legal capacity to sue.9
[5] The capacity to sue is the right to come into court.10
“‘“[A] party has capacity when it has the legal authority
to act, regardless of whether it has a justiciable interest in
the controversy.”’”11
6 § 25-307 (emphasis supplied).
7 Workman v. Workman, 167 Neb. 857, 869, 95 N.W.2d 186, 194 (1959).
8 Macku v. Drackett Products Co., 216 Neb. 176, 180, 343 N.W.2d 58, 61
(1984) (citations omitted).
9 Id.
10 67A C.J.S. Parties § 11 (2002).
11 Intracare Hosp. North v. Campbell, 222 S.W.3d 790, 795 (Tex. App.
2007).
1010 	283 NeBrASkA repOrTS

[6] “[M]inors and incompetents are considered to be under
a legal disability and are therefore unable to sue or be sued
in their individual capacities; such persons are required to
appear in court through a legal guardian, a ‘next friend,’ or a
guardian ad litem.”12
Although a minor or incompetent may have suffered an
injury and thus have a justiciable interest in the controversy,
these parties lack the legal authority to sue; the law therefore
grants another party the capacity to sue on their behalf.13
[7] We must consider how the issue of capacity is raised
before a court and whether a party’s capacity raises a jurisdic-
tional question. We note again that it is our duty to determine
whether this court has jurisdiction over the matter before it,
irrespective of whether the issue is raised by the parties.14
Under the Nebraska Court rules of pleading in Civil Cases, the
capacity of a party to sue or be sued need not be averred except
to show the jurisdiction of the court. The rule states:
When a party desires to raise an issue as to the legal
existence of any party or the capacity of any party to sue
or be sued . . . the party desiring to raise the issue shall
do so by specific negative averment, which shall include
such supporting particulars as are peculiarly within the
pleader’s knowledge.15
The corresponding federal rule provides:
(a) capacity oR authoRity to sue ; legal existence.
(1) In General. except when required to show that the
court has jurisdiction, a pleading need not allege:
(A) a party’s capacity to sue or be sued;
(B) a party’s authority to sue or be sued in a represent-
ative capacity; or
(C) the legal existence of an organized association of
persons that is made a party.
(2) Raising Those Issues. To raise any of those issues,
a party must do so by a specific denial, which must
12 Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005).
13 Id.
14 In re Estate of Potthoff, supra note 4.
15 Neb. Ct. r. pldg. § 6-1109(a) (rev. 2008).
CArLOS H. v. LINDSAY M. 	1011
Cite as 283 Neb. 1004

state any supporting facts that are peculiarly within the
party’s knowledge.16
[8] Thus, under the pleading rules, a party wishing to raise
the issue of whether another party has the necessary capac-
ity must specifically deny that the opposing party has capac-
ity. However, in this case, Lindsay was also 15 years old at
the time the action was brought. Nebraska law also provides
that “the defense of an infant must be by a guardian for the
suit, who may be appointed by the court in which the action
is prosecuted.”17 Therefore, as the named defendant, Lindsay
also should have been represented by a guardian, because
she was a minor.18 But because she lacked capacity to defend
herself under § 25-309, she cannot be found to have waived
any claim that Carlos lacked capacity by failing to raise it in
her answer.
We note that several states have specific statutes govern-
ing whether the consent requirements for adoption are differ-
ent if the relinquishing parent is a minor. In Colorado, South
Carolina, and Wyoming, statutes provide that the validity of a
relinquishment for adoption is not affected by the minority of
the relinquishing parent or parents.19 And Oklahoma state law
provides specific requirements for consent to adoption if the
relinquishing parent is under 16 years of age.20
Nebraska’s adoption statutes do not address the age of the
parties except to provide that if the mother is under the age
of 19, the affidavit of identification, which is required to be
attached as an exhibit to any petition to finalize the adoption,
“may be executed by the agency or attorney representing the
biological mother.”21 The statutes also provide that a guard-
ian ad litem “may” be appointed to represent the interests of
16 Fed. r. Civ. p. 9(a).
17 Neb. rev. Stat. § 25-309 (reissue 2008).
18 See Peterson v. Skiles, 173 Neb. 470, 113 N.W.2d 628 (1962).
19 Colo. rev. Stat. Ann. § 19-5-104(9) (West Cum. Supp. 2011); S.C. Code
Ann. § 63-9-310(e) (2010); Wyo. Stat. Ann. § 1-22-109(d) (2011).
20 Okla. Stat. Ann. tit. 10, § 7503-2.1B(2) (West 2007).
21 Neb. rev. Stat. § 43-104.09 (reissue 2008).
1012 	283 NeBrASkA repOrTS

the biological father if the adoption petition does not establish
compliance with notice requirements.22 The statutory scheme
for adoptions does not require that any of the minor par-
ties be represented by guardians, but § 25-307 imposes the
requirement that minors must be represented by guardians or
next friends.
To the extent that In re Adoption of Baby Girl H.23 implicitly
holds that an unemancipated minor may file a petition such as
the one in this case, it is disapproved. In that case, we deter-
mined that the putative father was not deprived of any benefit
intended by the notice requirements of the adoption statutes
and that the statutes did not require that notice be served on the
parents of a minor. We did not address whether the father had
the capacity to file the action, since he was a minor.
[9,10] Under § 25-307, Carlos lacked the capacity to bring
this action, because he was a minor. Likewise, under § 25-309,
Lindsay lacked the capacity to defend herself. Both parties
lacked capacity to act in their own names without a guardian
or next friend. The county court determined that Carlos was
not a proper party, but it exercised its jurisdiction and also
determined that the petition was not timely filed. We find that
the court had no jurisdiction to determine the merits of Carlos’
claim. We have often held that if the court from which an
appeal was taken lacked jurisdiction, then the appellate court
acquires no jurisdiction.24 And when an appellate court is with-
out jurisdiction to act, the appeal must be dismissed.25
CONCLUSION
The county court lacked jurisdiction over the action which
was brought solely in the name of a minor. Therefore, this
court also lacks jurisdiction. The appeal is dismissed.
appeal dismissed.
22 Neb. rev. Stat. § 43-104.18 (reissue 2008).
23 In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001).
24 Big John’s Billiards v. State, ante p. 496, 811 N.W.2d 205 (2012).
25 Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 (2010).
CArLOS H. v. LINDSAY M. 	1013
Cite as 283 Neb. 1004