Shannon Rhea Roberts v. Creig McLaughlin - Concurring ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
August 2, 1999
SHANNON REA ROBERTS, ) C/A NO. 01A01-9812-JV-00631
) Cecil Crowson, Jr.
Plaintiff, ) Appellate Court Clerk
)
v. )
)
)
) APPEAL AS OF RIGHT FROM THE
CREIG McLAUGHLIN, ) DAVIDSON COUNTY JUVENILE COURT
)
Defendant-Appellee, )
)
)
)
JANICE ROBERTS, )
)
Intervening Petitioner- ) HONORABLE BETTY ADAMS GREEN,
Appellant. ) JUDGE
For Appellant For Appellee
JOE F. GILLESPIE, JR. JAMES ROBIN McKINNEY, JR.
Joelton, Tennessee Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
This case originated as a paternity action. Shannon
Rea Roberts (“Ms. Roberts”) sought to establish that Creig
McLaughlin (“McLaughlin”) was the father of her child, Dylan
Daniels Roberts (“Dylan”) (DOB: February 14, 1997). The part of
the case now before us concerns the petition to intervene filed
in that proceeding by Janice Roberts (“Grandmother”), who is the
mother of Shannon Rea Roberts and the grandmother of Dylan. In
her petition, Grandmother seeks court-ordered “reasonable
visitation rights” with Dylan. McLaughlin moved to dismiss
Grandmother’s petition, relying on Rule 12.02(6), Tenn.R.Civ.P.,
and asserting that the petition “fail[s] to state a claim upon
which relief can be granted.”1 Id. The trial court granted
McLaughlin’s motion, finding2 that T.C.A. § 36-6-306 (Supp. 1998)
does not authorize an award of grandparents’ visitation under the
undisputed material facts of this case. Grandmother appeals,
arguing that the trial court erred in dismissing her petition.
We affirm.
In the paternity action, McLaughlin filed an answer in
which he admitted that he was Dylan’s father. Subsequently, the
trial court entered an order decreeing the child’s paternity. At
a later time, Ms. Roberts and McLaughlin were awarded Dylan’s
joint custody. The trial court also decreed that Dylan would
1
At the hearing below, a transcript of which is in the record,
McLaughlin also argued that the trial court did not have statutory
jurisdiction to entertain a petition for grandparents’ visitation. The trial
court did not address this argument, and it is not advanced as an issue before
us. Since this issue is not asserted on this appeal and has not been briefed
by the parties, we have ignored it. See Rule 13(b), T.R.A.P.
2
While the trial court’s order does not state a reason for dismissing
Grandmother’s petition, it is clear from the transcript of the hearing on the
motion to dismiss that the court’s decision was based upon McLaughlin’s main
argument, i.e., that the language of the statute does not apply to
grandparents’ visitation with a child born out of wedlock.
2
live with his mother and that McLaughlin would have certain
specified visitation rights. He was ordered to pay child
support.
While there are disputed facts in the record, we find
that those facts are not material to our resolution of this
appeal. The material facts are not in dispute: (1) Dylan is the
natural child of Ms. Roberts and McLaughlin; (2) Grandmother is
the maternal grandmother of Dylan; and (3) Ms. Roberts and
McLaughlin are not now, and never have been, married. While the
unwed relationship of Dylan’s parents does not appear on the face
of Grandmother’s petition, that fact is clear and undisputed from
material in the record “outside the pleading.” Rule 12.02,
Tenn.R.Civ.P. Hence we will treat the trial court’s order as one
for summary judgment, which we will review de novo with no
presumption of correctness. See Rules 12.02, Tenn.R.Civ.P., and
13(d), T.R.A.P. See also Hembree v. State, 925 S.W.2d 513, 515
(Tenn. 1996).
The statute upon which Grandmother must and does rely
is T.C.A. § 36-6-306 (Supp. 1998). That statute is a
codification of part of Chapter 503 of the Public Acts of 1997,
which Public Chapter became effective July 23, 1997.3 As
pertinent here, T.C.A. § 36-6-306 (Supp. 1998) provides as
follows:
(a) If:
3
See Compiler’s notes to T.C.A. § 36-6-306 (Supp. 1998).
3
(1) Either the father or mother of an
unmarried minor child is deceased;
(2) The child’s father and mother are
divorced or legally separated;
(3) The child’s father or mother has been
missing for not less than six (6) months; or
(4) The court of another state has ordered
grandparent visitation;
then, the parents of such deceased person or
the parents of either of such divorced or
separated persons or the parents of the
missing person may be granted reasonable
visitation rights to the child during its
minority by a court of competent jurisdiction
upon a finding that such visitation rights
are in the best interests of the minor child,
based on the factors in § 36-6-307(d)(2).
* * *
We must decide if this statute authorizes court-ordered
grandparents’ visitation under the circumstances of this case.
In interpreting a statute, we must “ascertain and give
effect to the intention and purpose of the legislature.” Tuggle
v. Allright Parking Systems, Inc., 922 S.W.2d 105, 107 (Tenn.
1996). We fulfill this obligation by giving effect to the
“natural and ordinary meaning of the language used [by the
legislature], without a forced or subtle construction that would
limit or extend the meaning of the language.” Id. If the
language is clear, our duty is likewise clear: we are to “obey
it.” Id. (quoting from Miller v. Childress, 21 Tenn. (2 Hum.)
320, 321-22 (1841)).
The statute under discussion, by omission, clearly
limits those situations in which a grandparent can attempt to
4
establish his or her entitlement to court-ordered visitation with
a grandchild. For example, the statute makes no specific mention
of a grandparent’s right to visitation with respect to the child
of an intact two-parent family. This omission may well be in
response to the basic holding of the Supreme Court in the case of
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In that case, the
High Court rebuffed grandparents’ efforts to compel living-
together, married, fit parents to permit the grandparents to
visit with their grandchildren. Id. at 577. In any event, the
statute clearly does not apply to a grandparent’s petition to
compel visitation with the offspring of living-together, married
parents. From this it can be seen that the legislature did not
intend to include all grandparents within the ambit of the
statute’s reach.
As we read T.C.A. § 36-6-306, it does not apply broadly
to all grandparents of children born out of wedlock. As can be
seen, the statute does not address such children as a group. As
pertinent here, the statute is clearly limited to the following
situations: where one of the parents is deceased; where the
parents are divorced or legally separated;4 where one of the
parents “has been missing for not less than six (6) months;” and
where another state has ordered grandparent visitation.5 T.C.A.
§ 36-6-306(a)(Supp. 1998). None of these factual scenarios are
present in the instant case. In other words, Grandmother in this
4
See, e.g., T.C.A. § 36-4-102 (Supp. 1998).
5
T.C.A. § 36-6-306(b)(1) (Supp. 1998) addresses the issue of
grandparents’ visitation when a relative or stepparent has adopted the child
with whom the petitioner seeks to visit. See also T.C.A. § 36-6-307 (Supp.
1998).
5
case cannot bring her factual pattern within T.C.A. § 36-6-
306(a)(1), (a)(2), (a)(3), or (a)(4).6
Grandmother urges us to find that the “legally
separated” concept embodied in T.C.A. § 36-6-306(a)(2) (Supp.
1998) applies to never-married parents who are not living
together. We find this to be a strained construction of the
language employed by the legislature and, hence, one that we
cannot adopt. Tuggle, 922 S.W.2d at 107. “Legally separated” is
a concept that has long been applied in the law to married
individuals who are living apart from one another. On the other
hand, the use of the word “legally” is particularly foreign to
the language normally employed when discussing never-married-to-
each-other parties who do not live together. In fact, it seems
to us that the terminology “legally-separated, never-married
parties” is an oxymoron. We do not believe that the legislature
would utilize such nonsensical language to express what is
essentially a very simple and easily-expressed concept -- the
parents of children born out of wedlock who are not living
together. Had the legislature intended to cover such children,
it could have done so with ease and in unmistakable language. We
also believe that it is significant that the legislature, in
T.C.A. § 36-6-306(a)(2), chose to couple the “divorced” concept
with the “legally separated” concept. This is still further
evidence that the legislature intended to limit the ambit of
T.C.A. § 36-6-306(a)(2) (Supp. 1998) to the children of parents
who had been or were married.
6
Our resolution of the issue before us on appeal does not require us to
determine whether subsection (a)(1), (a)(3), and (a)(4) can, in an appropriate
case, apply to children born out of wedlock.
6
Having decided that the legislature did not intend for
the relevant statutory scheme to extend to Grandmother’s
situation in this case, our duty is clear -- we must obey the
statute. It is not for us to say whether the omission of
Grandmother’s factual pattern is or is not a wise one. The
establishment of public policy is not our prerogative;7 it is
primarily for the General Assembly. See Smith v. Gore, 728
S.W.2d 738, 746 (Tenn. 1987).
The right of a grandparent to compel visitation with
his or her grandchildren is purely statutory; no such right
existed at common law.8 Therefore, in the absence of a statute
whose language encompasses the facts of this case, Grandmother
cannot pursue her petition.
Since we have determined that the statute does not
apply to the factual scenario in this case, we pretermit any
discussion regarding whether or under what circumstances the
statutory scheme for grandparents’ visitation can be
constitutionally applied. Cf. Hawk v. Hawk, 855 S.W.2d 573(Tenn. 1993); Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995);
Floyd v. McNeely, C/A No. 02A01-9408-CH-00187, 1995 WL 390954(Tenn.App., W.S., filed July 5, 1995); and Ellison v. Ellison,
C/A No. 02A01-9803-CH-00054, 1998 WL 959670 (Tenn.App., W.S.,
filed November 4, 1998).
7
The parties do not raise any constitutional issues on this appeal.
8
See Hawk v. Hawk, 855 S.W.2d 573, 576 n.1 (Tenn. 1993).
7
The appellee’s request for attorney’s fees for
frivolous appeal under T.C.A. § 27-1-122 is found to be without
merit and is hereby denied. The issue raised by the appellant
was fairly debatable. See Cole v. Dych, 535 S.W.2d 315, 323
(Tenn. 1976).
The judgment of the trial court is in all things
affirmed. Costs on appeal are taxed to the appellant. This case
is remanded to the trial court for such further proceedings, if
any, as may be required, consistent with this opinion, and for
collection of costs assessed below, all pursuant to applicable
law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
8