Sandra Ann Pippin v. Christina Michelle Pippin

05/14/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 11, 2019 Session
SANDRA ANN PIPPIN v. CHRISTINA MICHELLE PIPPIN
Appeal from the General Sessions Court for Wilson County
No. 2018-CV-2, 18-AD-242 John Thomas Gwin, Judge
___________________________________
No. M2018-00376-COA-R3-CV
___________________________________
The non-biological parent of a child born by artificial insemination to a woman with
whom the non-biological parent had maintained a long term relationship and who had
lived with the child, holding herself out as one of the child’s parents, filed a petition to
establish her parentage of the child and to set a parenting schedule; the petition was
dismissed on the basis that she lacked standing; the trial court also awarded the petitioner
visitation with the child. Upon our review, we affirm the dismissal of the petition and
vacate the order setting visitation.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed in Part and Vacated in Part; Case Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER, J., joined. ANDY D. BENNETT, J., filed a dissenting opinion.
Abby R. Rubenfeld, Nashville, Tennessee, for the appellant, Sandra Pippin
Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Christina Pippin
Tiffany D. Hagar, Lebanon, Tennessee, Guardian ad Litem
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
This appeal involves a petition for parentage that was dismissed pursuant to Rule
12.02 of the Tennessee Rules of Civil Procedure. A child (“Child”) was born in
November 2011 through artificial insemination after his biological mother, Christina
Pippin, and her partner, Sandra Pippin, made the mutual decision to have a child and to
have Christina carry the baby. Child was raised by both Christina and Sandra together as
what Sandra characterizes as “equal parents” until December 2016, when the couple
ended their 9 1/2 year relationship. Though Christina legally changed her last name to
that of Sandra’s in the spring of 2011 when she was pregnant with Child, the couple
never married. When they ended their relationship, Sandra moved out of the parties’
home along with her son (“J.”), whom she had adopted prior to beginning the relationship
with Christina.
On January 4, 2018, Sandra filed a petition in the Wilson County General Sessions
Court, Family Court Division,1 seeking to establish what she called “de facto parentage”
of Child and to set a schedule to allow her to have parenting time with him. Among other
things, the petition alleged:
10. . . .
d. In 2009, the parties began discussing adding another child to their
family, which they also discussed with their extended families and
friends, based on their mutual intent and commitment to have and
raise another child together as equal parents;
e. In late 2010/early 2011, the parties executed a sworn Domestic
Partner Affidavit to verify that they were a family, together
supporting each other and both children, which allowed Respondent
and both children to be added to Petitioner’s employee health plan;
f. Because same sex marriage was not yet legal throughout the
country, including in Tennessee, the parties discussed that their
relationship and their commitment to each other and their family was
just as strong without that legal recognition, although Petitioner
proposed to Respondent nonetheless and gave her a bread-tie ring,
later replacing that with a real ring and then a larger one when
Respondent legally changed her surname to Petitioner’s.
***
13. . . .
f. Petitioner was present for [Child]’s birth . . . was the first person to
hold [Child] after birth, accompanied [Child] to the neonatal
intensive care unit (NICU) immediately after his premature birth,
and was the first person to change [Child]’s diaper;
***
i. Petitioner’s family members, friends, and colleagues were told and
understand that she has two sons, and she has photographs of both
[Child] and [J.] in her office; and,
1
Tennessee Code Annotated section 37-1-104(f) gives juvenile courts jurisdiction to establish the
paternity of children born out of wedlock; section 16-15-501 gives general sessions courts concurrent
jurisdiction with circuit and chancery courts in domestic relations cases.
2
j. Petitioner was known to [Child] from birth as “Momma Sandy”
and Respondent was known to him as “Momma Christy,” by
agreement of and equal participation by the parties.
14. Since birth, both parties have taught [Child] that they are his equal
parents, and he has never questioned that and never been told that the
parties are anything other than equal parents to him; [Child] has grown up
knowing [J.] as his brother, and the four members of the household have
functioned as a nuclear family of two parents and two children for the
entirety of [Child]’s life.
15. The record is clear that the parties regarded themselves as a committed
couple raising two sons together, regardless of who had what legal
relationship with each child . . .
***
17. The parties continued their joint commitment to being equal parents of
[Child] after his birth, as evidenced by the following, among other things:
a. [Child] has grown up being taught and considering Petitioner’s
extended family as his family, calling Petitioner’s mother “Grandma
Marilyn,” Petitioner’s sisters “Aunt Jenny,” “Aunt Debby,” and
“Aunt Clara,” and Petitioner’s nieces and nephews his “cousins”;
***
c. Throughout [Child]’s life, the parties shared household
responsibilities for the family, with Respondent as a stay-home mom
with responsibility for most of the domestic chores, and Petitioner
being the primary breadwinner for the family and paying most
family expenses, including providing health insurance coverage for
the entire family through her employment, and most other expenses
associated with raising [Child];
d. Petitioner regularly took both children shopping for clothing,
school supplies, and other necessities;
***
i. By agreement with and the approval of Respondent, Petitioner was
listed as [Child]’s other parent on all registration forms and in all
directories, and regularly attended parent/teacher conferences for
him;
j. Petitioner was also listed as [Child]’s other parent on registration
forms for his extra-curricular soccer and wrestling classes, for which
she paid;
k. When not traveling for work, Petitioner regularly woke [Child],
got him dressed and ready for the day, made and fed him breakfast,
and dropped him off at daycare or school; and,
***
45. Petitioner relied on the representations and behavior of Respondent that
3
the parties are equal co-parents and she has considered [Child] to be her son
since his birth, willingly and joyfully assuming all obligations of
parenthood, without any expectation of financial compensation, including
providing financial assistance for [Child], taking care of him physically and
emotionally, and engaging in all of the things that parents do for their
children.
46. In addition, Petitioner has been [Child]’s primary source of financial
support since his birth, even after the separation of the parties, and she is
prepared to continue doing that since she is and has always been his second
parent.
47. Petitioner has been in a parental role to [Child] for his entire six years
of life, and thus has established a bonded, dependent relationship with him,
completely parental in nature.
***
90. There is functionally no difference between a married and an un-
married partner where the biological parent chooses to conceive using
donor insemination and where she specifically invites and intends for a
partner to raise the child together with her as an equal parent — as the facts
plainly establish here. See, e.g., Partanen v. Gallagher, 59 N.E.3d 1133
(Mass. 2016) (in related context, person without biological connection to
child may be child’s “presumed parent” under statute providing man is
presumed to be father of child born out of wedlock if he, jointly with
mother, received the child into their home and openly held out child as their
child).
In motions filed on January 9, Sandra sought to have a guardian ad litem appointed and
for a temporary parenting schedule “so as to preserve the status quo by allowing Child to
continue seeing, and to maintain the close, loving, and parent/child relationship he has
with both of the people he has been taught to consider his parents.” On January 18, the
court held a hearing on the motions; by order entered January 22, the court appointed
guardian ad litem and reserved the other matters for hearing on February 1.
Following the February 1 hearing, the court entered an order holding that it was in
Child’s best interest to continue having parenting time with Sandra and setting a
temporary parenting schedule that permitted Sandra to have time with him every other
weekend; the court also ordered the parties to submit a proposed temporary parenting
schedule. On February 2, Christina filed a motion to dismiss the petition and to stay the
overnight visitation pending a hearing on the motion. The motion to dismiss, filed
pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, asserted that the
petition failed to state a claim for relief as “the parties were never married, and [Child] is
the biological child of Respondent, and is not the biological child, adopted child, or step-
child of Petitioner, [thus] Petitioner has no standing under Tennessee law to seek
parenting time.”
4
A hearing on the motion to dismiss was held on February 15, at the end of which
time the court orally granted the motion; Sandra moved for a stay to allow visitation to
continue pending her appeal. On February 26, the trial court entered the order
memorializing its oral ruling and denying the stay sought by Sandra. On March 14
Sandra moved to alter or amend that portion of the order denying the stay so that
visitation could continue pending resolution of the appeal; following a hearing, the court
granted the motion and permitted visitation between Sandra and Child on the first and
third Saturdays of each month.2
Sandra filed a timely notice of appeal and states the following issues for
resolution:
I. Do the Tennessee parentage presumption statutes, read in a gender-neutral
way as required by T.C.A. §1-3-104 and by established constitutional law,
provide standing for an unmarried adult who is not related to a child by
biology or adoption, particularly where, as here, that adult participated in
the intentional conception of that child, voluntarily and without expectation
of compensation helped raise him for years until this case, supported him
financially and emotionally, took him into her home and held him out to
the world as her natural son, and whom that child was taught by his
biological parent is his other parent?
II. Does Tennessee common law provide standing for an unmarried adult who
is not related to a child by biology or adoption if the statutory parentage
scheme does not apply, particularly where, as here, that adult participated in
the intentional conception of that child, voluntarily and without expectation
of compensation helped raise him for the first 6 years of his life until this
case, supported him financially and emotionally, held him out to the world
as her natural child, loved him, and parented him, and whom that child was
taught by his biological parent is his other parent?
III. Does an unmarried legal parent waive her superior constitutional right to
raise and control her child when she voluntarily and intentionally permits
and encourages that child to have a bonded, parent/child relationship with
another adult who lives with, supports, loves, and coparents her child for
almost all of the child’s life, and where it will cause harm to the child to
2
The court entered an “Abstract Order Regarding Petitioner’s Visitation and Contact with Child” on
April 6 in which it: awarded visitation to Sandra on the first and third Saturday of each month as well as
one phone call per week, awarded holiday visitation to Sandra on December 26 of each year, restrained
the parties from discussing the case with Child, and ordered the parties “to facilitate and encourage a
relationship between the child and the other party consistent with the best interest of the child.”
5
suddenly sever the relationship his legal parent encouraged him to have
with the person he regards as his other parent?
IV. Are In re Thompson, 11 S.W.3d 913 (Tenn. App. 1999), and In re Hayden
C.G.-J, S.W.3d (Tenn. App. 2013), 2013 WL 6040348, based on
Thompson, no longer controlling of the issue presented here given the
reversals of the authority on which they were based and since they have
been substantially undermined by changes in Tennessee law, Tennessee
families, and federal constitutional law since they were decided?
Christina raises the following additional issues:
[I]. The issue of whether Appellant is a parent, based on the language of Tenn.
Code Ann. [§] 36-2-304, the presumption of parentage statute, with
standing to pursue this action was not raised in the trial court and is not
properly before this Court.
[II]. The trial court erred when it granted visitation to appellant after it
dismissed her petition.
[III]. This case should be remanded to the trial court for a determination of the
amount of attorney’s fees to be paid by Appellant to appellee pursuant to
Tenn. Code Ann. [§] 20-12-119(c)(1) and other authority.
[IV]. Appellee should be awarded her attorney’s fees on appeal or awarded
damages for a frivolous appeal and the costs of this appeal should be
assessed to appellant.
II. STANDARD OF REVIEW
The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine
whether the pleadings state a claim upon which relief can be granted. A Rule 12 motion
only challenges the legal sufficiency of the complaint. It does not challenge the strength
of the plaintiff’s proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). “[M]atters outside the pleadings
should not be considered in deciding whether to grant the motion.” In re Francis P., 532
S.W.3d 356, 365 (Tenn. Ct. App. 2017), appeal denied (Sept. 22, 2017) (quoting Trau–
Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)). In reviewing a
motion to dismiss, we must liberally construe the complaint, presuming all factual
allegations to be true and giving the plaintiff the benefit of all reasonable inferences. See
Pursell v. First American National Bank, 937 S.W.2d 838, 840 (Tenn. 1996); see also
Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn. 2002). Thus, a
complaint should not be dismissed for failure to state a claim unless it appears that the
6
plaintiff can prove no set of facts in support of his or her claim that would warrant relief.
See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v. Methodist Hospital
South, 566 S.W.2d 847, 878 (Tenn. 1978). Making such a determination is a question of
law. Our review of a trial court’s determinations on issues of law is de novo, with no
presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P. C., 70 S.W.3d
710, 713 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn 2000); Ganzevoort v.
Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
The issues raised require that we construe several statutes. The construction of a
statute is a question of law and is reviewed de novo. Lee v. Franklin Special Sch. Dist.
Bd. of Educ., 237 S.W.3d 322, 332 (Tenn. Ct. App. 2007). When construing a statute, a
court must “ascertain and give effect to the legislature’s intent.” Home Builders Ass’n of
Middle Tenn. v. Williamson Cnty., 304 S.W.3d 812, 817 (Tenn. 2010). Ordinarily, we
derive this legislative intent “‘from the natural and ordinary meaning of the statutory
language within the context of the entire statute without any forced or subtle construction
that would extend or limit the statute’s meaning.’” Id. (quoting State v. Flemming, 19
S.W.3d 195, 197 (Tenn. 2000)). Where “the language of a statute is ambiguous in that it
is subject to varied interpretations producing contrary results, Walker [v. Sunrise
Pontiac–GMC Truck, Inc.,] 249 S.W.3d [301,] 309 [(Tenn. 2008)], we construe the
statute’s meaning by examining ‘the broader statutory scheme, the history of the
legislation, or other sources.’” Id. (quoting State v. Sherman, 266 S.W.3d 395, 401 (Tenn.
2008)).
III. ANALYSIS
A. Standing
The trial court dismissed the petition, stating that it was “being asked to create a
new category of parent in Tennessee” — “a de facto parent.” The court further opined
that there “is no such thing in Tennessee . . . except on the street and in real life; there are
all sorts of de facto parents, but the law gives them no rights.” The court concluded that
Sandra had no standing to pursue being named the parent of Child. Sandra asserts that
Tennessee Code Annotated sections 68-3-306 and 36-2-304(a)(4), read and applied in a
gender-neutral manner, give her standing to seek to establish parentage and visitation
rights. We address the statutes separately.
Standing is a judicial doctrine used to determine whether a party is “entitled to
have a court decide the merits of a dispute.” Am. Civil Liberties Union of Tenn. v.
Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). The doctrine of standing precludes courts
from adjudicating “‘an action at the instance of one whose rights have not been invaded
or infringed.’” Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001) (quoting 59
AM.JUR.2D. Parties § 30 (1987)). More specifically, this doctrine “restricts ‘[t]he
exercise of judicial power . . . to litigants who can show ‘injury in fact’ resulting from the
7
action which they seek to have the court adjudicate.’” In re Estate of Farmer, No.
M2013-02506-COA-R3-CV, 2014 WL 5308226, at *12 (Tenn. Ct. App. Oct. 15, 2014)
(quoting Valley Forge Christian Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 473 (1982)). Where the person seeks to base his or her standing
on a statute, he or she must show that the “‘claim falls within the zone of interests
protected or regulated by the statute in question.’” State v. Harrison, 270 S.W.3d 21, 28
(Tenn. 2008) (quoting Wood v. Metro Gov’t of Nashville & Davidson Cnty, 196 S.W.3d
152, 158 (Tenn. Ct. App. 2005)).
Pertinent to the issue of standing presented in this case is the following holding
from In re Thompson, in which this Court considered the question of “whether a petition
for visitation may be brought by a woman who, in the context of a long-term relationship,
planned for, participated in the conception and birth of, provided financial assistance for,
and until foreclosed from doing so by the biological mother, acted as a parent to the child
ultimately borne by her partner.” In re Thompson, 11 S.W.3d 913, 915 (Tenn. Ct. App.
1999). We held:
While Tennessee’s legislature has generally conferred upon parents
the right of custody and control of their children, it has not conferred upon .
. . a nonparent who is not and has not been married to either of the
children’s parents, but who previously maintained an intimate relationship
with such a parent and who previously provided care and support to the
children[] any right of visitation. Absent statutory authority establishing
such a third-party’s right to visitation, parents retain the right to determine
with whom their children associate.
Id. at 918–19, 923 (Tenn. Ct. App. 1999).
1. Tennessee Code Annotated section 68-3-306
Tennessee Code Annotated section 68-3-306, which provides that “[a] child born
to a married woman as a result of artificial insemination, with consent of the married
woman’s husband, is deemed to be the legitimate child of the husband and wife,” is a part
of the Vital Records Act of 1977, codified in Chapter 3 of Title 68, part 3 of which relates
to births. Section 306 follows section 305, entitled “Father’s name on birth certificate –
Surname of child,” and which sets out in great detail the manner by which a child’s
father’s name is entered on the child’s birth certificate and, particularly, the manner in
which the father’s name is determined and added to the certificate, if the father is not
married to the mother.3 Consistent with the wording and intent of section 305, section
3
Section 305(a)(1) provides that “[i]f the mother was married at the time of either conception or birth, or
anytime between conception or birth, to the natural father of the child, the name of the natural father shall
be entered on the certificate . . . .”
8
306 declares that a child born to a married woman by artificial insemination is also a
child of the woman’s husband, thereby allowing the name of the husband of the married
woman who has borne the child to be entered as the child’s father on the birth certificate.
In the context of the broader statutory scheme, section 306 does not create the
relationship that Sandra advocates or confer any rights of parentage; the “marriage-
neutral” construction Sandra urges is a strained interpretation of the natural and ordinary
meaning of the statutory language.
Even if section 68-3-306 were construed to create a right of visitation on the part
of the husband of a woman who has given birth to a child by artificial insemination, that
right would be predicated upon the child being born to a married woman. Inasmuch as
Sandra’s petition stated that she and Christina were not married at the time of Child’s
birth nor at any time afterward, section 68-3-306 does not provide Sandra with standing
and thus cannot be used to support a claim for visitation with Child.
2. Tennessee Code Annotated section 36-2-304
Tennessee Code Annotated section 36-2-304 provides in pertinent part that “[a]
man is rebuttably presumed to be the father of a child if: . . . While the child is under the
age of majority, the man receives the child into the man’s home and openly holds the
child out as the man’s natural child.” Tenn. Code Ann. § 36-2-304(a)(4). Sandra pled
that she received Child into her home and held him out as her natural child, and argues
that “us[ing] the actual language of the statute but substituting feminine for masculine
words,” she “fits within the presumptions that makes a person a ‘parent’ under the
Tennessee Code, and thus has standing to pursue this case.”
As an initial matter, we address Sandra’s contention that reading section 36-2-304
in a gender-neutral way is required by section 1-3-104(b) (“Words importing the
masculine gender include the feminine and neuter, except when the contrary intention is
manifest”), thereby creating a rebuttable presumption of parentage when a person like her
receives a child, who is under the age of majority, into his or her home and openly holds
the child out as that person’s child. Applying the principles of statutory construction set
forth above, we do not agree that recourse to section 1-3-104 is required or necessary to
resolve the issue presented. The parentage statutes are not ambiguous, and to the extent
applicable to our inquiry, the Legislative intent of the statutes is clear and can be derived
“from the natural and ordinary meaning of the statutory language within the context of
the entire statute without any forced or subtle construction that would extend or limit the
statute’s meaning.” Home Builders Ass’n of Middle Tenn., 304 S.W.3d 817. Moreover,
to substitute “comparable feminine terms” for the words like “man” or “father,” as
Sandra proposes, goes beyond allowing words written in one gender be construed, where
necessary, to apply to the other, and exceed the purpose of the parentage statute as stated
in section 36-2-301, as more fully explained below. See Sneed v. Henderson, 366 S.W.2d
758, 759 (Tenn. 1963) (Allowing suit to proceed for the wrongful death of an infant’s
9
mother, where wrongful death statute provided that action would pass “to his children or
to his next of kin” but “applie[d] equally whether the deceased injured party be male or
female.”). No rights or relationships are created by the parentage statutes, only a
procedure by which the father is able to establish parentage; as such, recourse to section
1-3-104(b) for other purposes is not warranted.
Chapter 2 of Title 36 of the Code addresses parentage; section 36-2-301 states that
the purpose of the chapter is to “provide[] a single cause of action to establish parentage
of children other than establishment by adoption pursuant to chapter 1 of this title, or by
acknowledgement of parentage pursuant to §§ 68-3-203(g), 68-3-302 or 68-3-305(b).”4
Tenn. Code Ann. § 36-2-301. Section 36-2-302(5) defines “parent” to mean “the
biological mother or biological father of a child, regardless of the marital status of the
father and mother”; it also defines “mother” as “the biological mother of a child born out
of wedlock” (section 36-2-302(4)), and “father” as “the biological father of a child born
out of wedlock.” Tenn. Code Ann. § 36-2-302(4)(3). Section 36-2-305 permits a
complaint to establish parentage of a child to be filed by the child, the child’s mother, “a
man claiming to be the child’s father,” or the department of human services or its
contractor. Inasmuch as the Legislature has defined “father” in section 36-2-302, we
cannot give a gender-neutral meaning to that term for purposes of section 36-2-304; to do
so would extend both statutes’ meanings beyond that set forth in the chapter. Like the
statutes in chapter 1 of title 36, the statutes governing parentage contemplate a biological
or genetic connection between the child and the putative parent. Sandra does not have a
biological connection to Child and, accordingly, cannot fit this definition.
The Legislature has expressly created rights relative to child custody and visitation
for biological parents, potential adoptive parents, grandparents, stepparents, and parents
of “children born of donated embryo transfer.” See Tenn. Code Ann. §§ 36-1-101 et seq.
(adoption); 36-2-301 et seq. (biological fathers) 36-6-301 et seq. (grandparents and
stepparents); 36-2-401 et seq. (children born of donated embryo transfer). It has not
created the same such rights outside of these relationships. As Sandra does not fit into
any of these categories, her claim falls outside the zone of interests protected or regulated
by the statutes she references, rendering her without standing to pursue a parentage action
or visitation with Child.
4
Chapter 1 of Title 36 governs adoption, and section 102 defines “parent” as “any biological, legal,
adoptive parent or parents or, for purposes of §§ 36-1-127 -- 36-1-141, stepparents.” Tenn. Code Ann. §
36-1-102(36). A “legal parent” is defined as the biological mother of a child; a man who is or has been
married to the biological mother of the child or who attempted to marry the mother of the child; a man
who has been adjudicated to be the legal father of the child or who has signed a sworn acknowledgement
of paternity; or an adoptive parent. Tenn. Code Ann. § 36-1-102(28)(A). Based on the facts alleged in the
petition, Sandra is not a biological parent, a legal parent, or step parent, and she did not seek to adopt
Child; thus, she does not fit within any of these statutory definitions of a parent, even giving the statutes
the wording she urges.
10
3. De Facto Parentage
Additionally, Sandra argues that she should be established as the de facto parent of
Child. The guardian ad litem also urges that we adopt this concept and apply it to the
facts at hand to conclude that Sandra has standing in this matter. Adherence to precedent
prevents us from adopting such an approach; prior cases have expressly declined to adopt
the “de facto” parent definition of parentage for the purposes at hand. In In re Thompson,
this Court observed:
While it may be true that in our society the term “parent” has
become used at times to describe more loosely a person who shares mutual
love and affection with a child and who supplies care and support to the
child, we find it inappropriate to legislate judicially such a broad definition
of the term “parent” as relating to legal rights relating to child custody
and/or visitation. Just as a grandparent who provides care and support to a
child does not become recognized as being a parent (absent adoption) under
Tennessee law, other persons are not recognized as being a parent under
Tennessee law based only upon prior care and support of a child. These
other persons include any unmarried persons who maintain a close intimate
relationship with a child’s natural parent, whether they are of the same or
opposite sex of that natural parent.
***
. . .[W]e are unaware of and have not been cited to any prior
controlling precedent that has utilized the concept of either de facto
parenthood and/or in loco parentis to extend constitutional parental rights,
including the right to visitation, to unmarried/unrelated persons in [the
appellants’] position.
11 S.W.3d at 918–19, 923.5 Fourteen years later, in In re Hayden C.G-J., No. M2012-
02701-COA-R3-CV, 2013 WL 6040348, at *1 (Tenn. Ct. App. Nov. 12, 2013), this
Court again considered facts similar to those in this case and concluded that the
unmarried former partner of a legal parent did not have standing to seek visitation with a
child the couple had raised together for the first 4 1/2 years of the child’s life, stating that
5
We are not persuaded by Sandra’s argument that In re Thompson is “no longer controlling of the issue
presented here given the reversals of the authority on which [it] was based.” She cites Alison D. v.
Virginia M., 572 N.E.2d 27 (N.Y. 1991), overruled by Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488
(N.Y. 2016), as being “relied heavily” on in In re Thompson; however, Alison D. is one of four cases
discussed in In re Thompson in similar depth, and the other three cases, from the States of California,
Vermont, Florida, have not, as of this writing, been overruled.
11
“no statute gives [the petitioner] a legal right or interest regarding visitation with [the
child]” and that, in light of the Legislature’s decision to not change the definition of
parent or legal parent, the petitioner’s arguments that she had standing under the concepts
of in loco parentis and/or de facto parent also “lack[ed] a legal foundation.” Id. at *1, *4.
Although significant changes in the legal landscape regarding the recognition of same-
sex marriage have taken place since In re Hayden C.G-J. was decided, the holding in that
case remains applicable to the facts of this case because the parties were unmarried.6
Inasmuch as Sandra’s claim for visitation does not fall within the zones of
interests protected by the parentage statutes, she does not have standing to pursue
visitation; accordingly, we affirm the judgment of the trial court dismissing the petition. 7
B. Visitation
By order entered May 2, 2018, the trial court granted Sandra visitation with Child
pending resolution of all appeals, finding that it was not in Child’s best interest to be
separated from Sandra through the appeal process, that minimum contacts between the
two “are sufficient to maintain [Child’s] relationship with [Sandra],” and that such
minimum contacts were in Child’s best interest. Christina contends that, in light of the
fact that Sandra was not Child’s biological mother, step-mother, adoptive mother, or
grandmother, the court erred in granting visitation. Inasmuch as we have affirmed the
dismissal of the petition and held that Sandra does not have standing to pursue visitation
with Child, we vacate the order granting visitation. In so doing, we acknowledge the trial
court’s finding that Child’s best interest is served by maintaining a relationship with
Sandra, as well as her son J., and commend the court for its thorough and heartfelt ruling
in that regard.
6
Sandra’s petition states that the parties did not marry, and she does not challenge any Tennessee
marriage laws; thus, the issues presented in this appeal do not implicate the holdings of Obergefell v.
Hodges, 135 S. Ct. 2584, 2593 (2015). In Grant v. Anderson, this Court set forth the precise holdings of
Obergefell:
[T]he [United States Supreme] Court held that “the State laws challenged . . . in these
cases are now . . . invalid to the extent they exclude same-sex couples from civil marriage
on the same terms and conditions as opposite-sex couples.” Id. at 2605. The Court further
held “that there is no lawful basis for a State to refuse to recognize a lawful same-sex
marriage performed in another State on the ground of its same-sex character.” Id. at 2608.
No. M2016-01867-COA-R3-CV, 2018 WL 2324359, at *2 (Tenn. Ct. App. May 22, 2018), appeal denied
(Oct. 10, 2018).
7
Our holding that Sandra does not have standing to pursue visitation pretermits our consideration of the
issue she raises as to whether Christina waived her superior parental rights when she permitted Sandra to
parent Child.
12
C. Attorney’s Fees
Christina has asked that the case be remanded for a determination of an award of
counsel fees as authorized by Tennessee Code Annotated section 20-12-119(c)(1), and
for an award of fees as damages for a frivolous appeal. Upon a review of the petition, we
conclude that an award of fees is precluded under subsection (c)(5)(E).8
This court is authorized by Tennessee Code Annotated section 27-1-22 to award
damages, including attorney’s fees, against the appellant if we determine the appeal is
frivolous or that it was taken solely for delay; the statute is to be interpreted and applied
strictly to avoid discouraging legitimate appeals. Wakefield v. Longmire, 54 S.W.3d 300,
304 (Tenn. Ct. App. 2001); see Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.
1977) (discussing the predecessor of Tenn. Code Ann. § 27-1-122). A frivolous appeal is
one that is devoid of merit or has no reasonable chance of success. Wakefield, 54 S.W.3d
at 304. The award of damages for the filing of a frivolous appeal lies within the sound
8
Tennessee Code Annotated section 20-12-119 states:
(a) In all civil cases, whether tried by a jury or before the court without a jury, the
presiding judge shall have a right to adjudge the cost.
***
(c)(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court
grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure
for failure to state a claim upon which relief may be granted, the court shall award the
party or parties against whom the dismissed claims were pending at the time the
successful motion to dismiss was granted the costs and reasonable and necessary
attorney’s fees incurred in the proceedings as a consequence of the dismissed claims by
that party or parties. The awarded costs and fees shall be paid by the party or parties
whose claim or claims were dismissed as a result of the granted motion to dismiss.
***
(5) This subsection (c) shall not apply to:
***
(E) Any claim which is a good faith, non-frivolous claim filed for the express purpose
of extending, modifying, or reversing existing precedent, law or regulation, or for the
express purpose of establishing the meaning, lawfulness or constitutionality of a law,
regulation or United States or Tennessee constitutional right where the meaning,
lawfulness or constitutionality is a matter of first impression that has not been established
by precedent in a published opinion by the Tennessee supreme court, court of appeals,
court of criminal appeals, a United States district court in Tennessee, or by the United
States supreme court. This subdivision (c)(5)(E) shall not apply unless at the time the
successful motion to dismiss was filed the party that made the dismissed claim had
specially pleaded in its latest complaint, counter-complaint or cross-complaint that the
dismissed claim was made for one (1) of the express purposes listed above and cited the
contrary precedent or interpretation the party seeks to distinguish or overcome, or
whether the issue to be decided is a matter of first impression as described in this
subdivision (c)(5)(E).
13
discretion of this Court. GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 547 (Tenn. Ct.
App. 2005). In our discretion, we decline to award attorney’s fees on appeal.
IV. CONCLUSION
For the foregoing reasons, the judgment of the trial court dismissing the petition is
affirmed, and the order granting visitation between Sandra and Child is vacated.
RICHARD H. DINKINS, JUDGE
14