Serenna D. Russell, appellant, v. Joan C. Bridgens, appellee, 264 Neb. 217

Stephan, J. Appellant, Serenna D. Russell, appeals from an order of the district court for Douglas County granting the

summary judgment motion of appellee, Joan C. Bridgens, and a further order overruling Russell’s motion for reconsideration. We conclude that the district court erred in granting the

summary judgment motion, and reverse, and remand for further proceedings. FACTS Bridgens adopted a minor child in Pennsylvania in September 1996. In December 1997, both Bridgens and Russell adopted the same minor child in what is referred to in the record as a “coparent” adoption. Although a certified copy of the 1997 adoption decree is a part of the record, the petition requesting such adoption is not. The certified decree expressly states that “[a]ll requirements of the Acts of Assembly have been fulfilled and complied with.” Bridgens and Russell are unmarried and of the same sex.

They lived together and raised the child until August 1999. At that time, Russell and the minor child, who both had been residing with Bridgens in Germany, returned to the United States while Bridgens remained in Germany. On November 21, 2000, Russell filed a petition to establish custody and support for the minor child in the district court for Douglas County, Nebraska. After answering and cross-petitioning for custody and support, Bridgens filed a motion for

summary judgment on May 16, 2001. The motion alleged that the 1997 adoption was invalid under Pennsylvania law. On July 23, 2001, the district court granted Bridgens’ motion for

summary judgment. The court reasoned that Pennsylvania law required Bridgens to terminate her parental rights prior to the 1997 adoption and found that “[i]t appears to the Court this was not done and [Russell] has not offered evidence to the contrary.” In a subsequent order denying Russell’s motion for reconsideration, the district court clarified that because the Pennsylvania statutory requirements for adoption were not met, the Pennsylvania court lacked subject matter jurisdiction to grant the adoption and that therefore, the adoption was not entitled to full faith and credit under the U.S. Constitution.

Russell timely appealed, and we moved the case to our docket on our own motion pursuant to our authority to regulate the dockets of the appellate courts of this state. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995). ASSIGNMENTS OF ERROR Russell assigns that the district court erred in (1) failing to apply the Full Faith and Credit Clause of the U.S. Constitution, (2) failing to recognize that res judicata bars an attack on the Pennsylvania decree, (3) not admitting Russell’s affidavit in evidence, (4) failing to consider and find equitable estoppel as a bar to Bridgens’ motion for

summary judgment, and (5) failing to address Russell’s status as a parent under the in loco parentis doctrine and failing to consider the minor’s best interests. STANDARD OF REVIEW

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002); Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002). In reviewing a

summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. McCarson v. McCarson, supra. ANALYSIS The dispositive issue in this appeal is whether the record demonstrates as a matter of law that the 1997 Pennsylvania adoption decree was not entitled to full faith and credit under the U.S. Constitution.

A judgment rendered in a sister state court which had jurisdiction is to be given full faith and credit and has the same validity and effect in Nebraska as in the state rendering judgment. Susan H. v. Keith L., 259 Neb. 322, 609 N.W.2d 659 (2000). The Full Faith and Credit Clause of the U.S. Constitution prohibits a Nebraska court from reviewing the merits of a judgment rendered in a sister state, but a foreign judgment can be collaterally attacked by evidence that the rendering court was without jurisdiction over the parties or the subject matter. Walksalong v. Mackey, 250 Neb. 202, 549 N.W.2d 384 (1996).

In the instant case, Bridgens seeks to collaterally attack the judgment on the basis that the Pennsylvania court lacked subject matter jurisdiction to grant the adoption. Whether the Pennsylvania court had subject matter jurisdiction is dependent upon Pennsylvania law. See Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472 (1975) (holding only defenses that would be valid in rendering state can be relied upon by courts of another state).

Bridgens’ argument is based upon the contention that the Pennsylvania court lacked subject matter jurisdiction because Bridgens and Russell did not comply with the requirements of the Pennsylvania adoption statutes at the time of the 1997 decree. Specifically, Bridgens argues that the extrinsic evidence in the record establishes that she had not relinquished her parental rights prior to the 1997 “coparent” adoption and that the requisite parental consents were not included in the adoption petition. In this regard, 23 Pa. Cons. Stat.

Ann. § 2701(7) (West 2001) provides that a petition for adoption shall state that “all consents required by

section 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which such consents are not required.” Further, 23 Pa. Cons. Stat. Ann. § 2711(a)(3) (West 2001) requires consent from “[t]he parents or surviving parent of an adoptee who has not reached the age of 18 years.” In particular, the consenting parent must state, in part, “I hereby voluntarily and unconditionally consent to the adoption of the [minor] child. I understand that by signing this consent I indicate my intent to permanently give up all rights to this child.” § 2711(d)(1).

See In re Adoption of C.C.G., 762 A.2d 724 (Pa. Super. 2000). An exception to the unqualified consent requirement is found in 23 Pa. Cons. Stat. Ann. § 2903 (West 2001), which provides that “[w]henever a parent consents to the adoption of his child by his spouse, the parent-child relationship between him and his child shall remain whether or not he is one of the petitioners in the adoption proceeding.” In addition, 23 Pa. Cons. Stat.

Ann. § 2901 (West 2001) provides that “[u]nless the court for cause shown determines otherwise, no decree of adoption shall be entered unless ... all other legal requirements have been met.” A party moving for

summary judgment must make a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial. Polinski v. Sky Harbor Air Serv., 263 Neb. 406, 640 N.W.2d 391 (2002). Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Id. As the party moving for

summary judgment, it was Bridgens’ burden to demonstrate that the Pennsylvania court lacked subject matter jurisdiction due to lack of compliance with the requirements of the adoption statutes. The record before us, however, contains only the 1997 Pennsylvania adoption decree which affirmatively alleges on its face that it was decreed in conformance with Pennsylvania law. There is no evidence in the record establishing that the necessary consents were not included with the petition for adoption or that Bridgens did not, in fact, relinquish her parental rights prior to the 1997 “coparent” adoption.

Contrary to the finding of the district court, based upon this evidence the burden did not shift to Russell to affirmatively demonstrate that the requirements of the adoption statutes were met prior to the 1997 decree. On the record before us, Bridgens failed to meet her burden entitling her to

summary judgment, and the district court erred in granting the motion. Because this error requires reversal and remand for further proceedings, we do not reach Russell’s remaining assignments of error. CONCLUSION For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings.

For the benefit of the parties and the district court, we note that the legal issue of whether compliance with the statutory requirements of the Pennsylvania adoption act is an aspect of subject matter jurisdiction is an issue we view to be significantly dependent upon the Supreme Court of Pennsylvania’s resolution of the pending appeals in In re Adoption of R.B.F., 762 A.2d 739 (Pa. Super. 2000), and In re Adoption of C.C.G., 762 A.2d 724 (Pa. Super. 2000). Reversed and remanded for FURTHER PROCEEDINGS.