MICHAEL SCOTT EVANS, )
)
Petitioner/Appellant, ) Appeal No.
) 01-A-01-9511-JV-00508
VS. )
) Davidson Juvenile
KAREN MARIE BISSON STEELMAN, ) No. 9419-13267
)
Respondent/Appellee. )
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE
CLARK LEE SHAW
FILED
2525 Lebanon Road
October 2, 1996
Nashville, Tennessee 37214
STEVEN M. MOORE Cecil W. Crowson
30 Music Square West, Suite 301 Appellate Court Clerk
Nashville, Tennessee 37203
Attorneys for Petitioner/Appellant
PHILLIP W. DUER
MARY ARLINE EVANS
214 Third Avenue, North
Nashville, Tennessee 37201
Attorneys for Respondent/Appellee
CHARLES W. BURSON
Attorney General & Reporter
JENNIFER HELTON SMALL
Deputy Attorney General
1510 Parkway Towers
Nashville, Tennessee
Intervenor
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
SEPARATE
CONCURRING OPINION:
LEWIS, J.
SEPARATE
DISSENTING OPINION:
KOCH, J.
OPINION
In this appeal we are asked to re-visit the question of whether a man
who fathers a child by a married woman may legitimate the child. The Davidson
County Juvenile Court held that the legitimation statute allowing a putative father to
legitimate a child “not born in lawful wedlock” applied only to children born to
unmarried women. If that interpretation holds, the appellant attacks the
constitutionality of the statute on due process and equal protection grounds. We
affirm the lower court’s interpretation of the statute and reject the appellant’s
contention that the statute is constitutionally defective.
I.
On December 13, 1994, Michael Scott Evans filed a petition in the
Juvenile Court of Davidson County seeking to legitimate a male child born to Karen
Marie Bisson Steelman on November 24, 1994. The petition alleged that Mr. Evans
is the father of the child and that conception occurred while Mrs. Steelman was
married to but separated from her husband, Jamie Steelman.
Mrs. Steelman filed an answer denying that Mr. Evans is the child’s
father and raising the affirmative defense of Mr. Evans’ standing to prosecute the
action for legitimation. The juvenile judge dismissed Mr. Evans’ petition, ruling that
under the current law in Tennessee he had no standing to legitimate the child.
II.
Proceedings to legitimate children were unknown at common law. “In
the absence of statutory authorization, an illegitimate child cannot be legitimated by
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judicial proceedings.” See 14 C.J.S. Children Out-of-Wedlock § 2B (1991).
Cunningham v. Golden, 652 S.W.2d 910 (Tenn. App. 1983). In Tennessee, the
statutory basis for such proceedings is found in Tenn. Code Ann. § 36-2-202:
(a) An application to legitimate a child not born in
lawful wedlock is made by petition, in writing, signed by the
person wishing to legitimate such child, and setting forth the
reasons therefor and the state and date of the child’s birth.
(b) In addition to the provisions of subsection (a),
a person wishing to legitimate a child may obtain an order of
legitimation for a child born to an unmarried woman by filing
with the court a certified copy or a duplicate original of the
acknowledgment of paternity as prescribed under § 24-7-118,
§ 68-3-203(g), § 68-3-302, or § 68-3-305(b). Further, a
duplicate original of the voluntary acknowledgment of
paternity filed with the juvenile court by a birthing institution
pursuant to the provisions of § 68-3-302(e) shall be the basis
for the entry of an order of legitimation by the court. Subject
to the provisions of § 24-7-118, the court shall enter an order
of legitimation upon the filing of the voluntary
acknowledgment of paternity in either of the above situations.
(c) Nothing herein shall be construed to authorize
a putative father to legitimate a child or to execute any
voluntary acknowledgment of paternity without the consent of
the mother of such child.
In Cunningham v. Golden, 652 S.W.2d 910 (Tenn. App. 1983), this court
interpreted the phrase, “child not born in lawful wedlock,” in section (a), the only
section that existed at the time, to mean a child born to an unmarried woman. In
Cooper v. Thompson, 710 S.W.2d 944 (Tenn. App. 1985), this court followed the
ruling in Cunningham and said, “The legitimation statutes are for the protection of the
child, and are not for the purpose of allowing parents, biological or otherwise, to stake
out claims to the child.” 710 S.W.2d at 946. In both opinions the members of the
court expressed a strong belief that a restrictive interpretation was necessary to
preserve the integrity of existing families.
Were we writing on a clean slate we might interpret the statute
differently. We think it is just as logical to hold that the phrase “not born in lawful
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wedlock” means any child whose parents were not married to each other. States with
statutes using similar language have extended the right to begin legitimation
proceedings to the putative father even when the mother is married to another man.1
It also seems logical that when a woman is separated from her husband and is living
with another man there is no intact family to be preserved.
But, “the legislature is presumed to know the interpretation which courts
make of its enactments.” Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1974). Thus,
when the legislature amended Tenn. Code Ann. § 36-2-202 in 1992, and again in
1994, it presumably knew of the interpretation given the statute in Cunningham and
Cooper. Nevertheless, it did not change the language of the statute, and the
additional sections keep its scope very narrow. Subsection (b) provides an informal
procedure for obtaining an order of legitimation of a child born to an unmarried
woman, and, subsection (c) underscores the restrictions placed on putative fathers
by making the mother’s consent a requirement in any legitimation proceeding. 2 We
are persuaded, therefore, that the legislature intended to restrict the operation of
Tenn. Code Ann. § 36-2-202 to cases involving children born to unmarried mothers.
III.
Before we move to the question of the statute’s constitutionality, there
are two points raised in the dissent that should be addressed.
First is the dissent’s view that Cunningham v. Golden and Cooper v.
Thompson lack precedential value because they are only Court of Appeals opinions.
1
See Johnson v. Studley-Preston, 812 P.2d 121 6 (Ida ho 1 991 ); Durr v. Blue, 454 So.2d 315 (La.
Ct. App. 1984); Ind. Cod e 31-6-6.1-2(2) Sup p. 1995; Iowa C ode An n. § 600 B.8 (W est 1996).
2
W e are aware that the Eastern Section of this court declared subsection (c) unconstitutional
as applied to fathers seeking to legitimate children born to unmarried mothers. See Vineyard v. Hood,
Appeal No. 03-A-01-9508-JV-00296 (Eastern Section, Court of Appeals, filed June 10, 1996). But the
case does not affect this one, as we are dealing only with subsection (a) of the statute.
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Coming from a Court of Appeals Judge that is a surprising view; but beyond that, it
simply does not withstand scrutiny. The dissent cites Swift v. Kirby, 737 S.W.2d 271
(Tenn. 1987) for the proposition that until the Supreme Court has spoken on a point
of law there is no binding precedent. Then the dissent discusses unpublished
opinions, which we find to be irrelevant to the point under consideration.
Cunningham v. Golden and Cooper v. Thompson are both published
opinions in which the Supreme Court denied permission to appeal. It is true that the
Supreme Court in Swift v. Kirby said, “This Court is not committed to all of the views
expressed in an opinion of the intermediate appellate courts when we deny
discretionary review.” 737 S.W.2d at 277 (Tenn. 1987). But where the interpretation
of Tenn. Code Ann. § 36-2-202(a) was the only issue decided in Cunningham v.
Golden and was the only substantive issue decided in Cooper v. Thompson, an
argument that the Supreme Court did not approve the interpretation made by the
Court of Appeals cannot be made. The Supreme Court may change its mind, but until
it does, those cases should be followed.
Second, we are intrigued by the dissent’s assertion that there is no
support for the notion that the legislature has somehow approved the result in
Cunningham v. Golden. As the basis for that position the dissent cites a dissenting
opinion in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442 (1987),
(which only three members of the United States Supreme Court joined) and ignores
the specific holdings of the Tennessee Supreme Court to the contrary. We cited
Hamby v. McDaniel, 559 S.W.2d 774 (1977), in which the Court said:
The legislature is presumed to know the interpretation
which courts make of its enactments; the fact that the
legislature has not expressed disapproval of a judicial
construction of a statute is persuasive evidence of legislative
adoption of the judicial construction, especially where the law
is amended in other particulars, or where the statute is
reenacted without change in the part construed. (Citations
omitted.)
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559 S.W.2d at 776.
We would only add that Hargrove v. Newsome, 225 Tenn. 462, 470
S.W.2d 348 (1971)(where the Supreme Court said the presumption was “conclusive”);
McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966);
Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436 (Tenn. 1962);
and New England Mutual Life Insurance Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238
(Tenn. 1935)(where the presumption was applied to an administrative interpretation),
could have been cited for the same proposition.
Perhaps the most telling indication that the legislature has approved the
result in Cunningham v. Golden, supra, can be found in the legislative history of Tenn.
Code Ann. § 36-2-202 subsequent to the court’s decisions in both Cunningham and
Cooper. Although Section (a) contains the term “a child not born in lawful wedlock,”
the legislature did not choose to change or re-define that term, or any part of that
section. Section (b) provides a new procedure to legitimate a child, but by its terms
is limited only to children “born to an unmarried woman.” Section (c) does not directly
refer to the marital status of the mtoher of the child whose legitimation is sought, but
it limits the putative father’s right by requiring the consent of the mother.
We presume that the legislature had the opportunity to deal with the
court’s holding in Cunningham v. Golden at the time the amendments were being
debated. It chose instead to enact some substantial changes in the legitimation
process without touching at all on the issue raised in that case.
IV.
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Our interpretation of the statute requires us to face the question of
whether the state can, consistent with due process and equal protection, pass an act
giving putative fathers the right to legitimate children born to unmarried women while
withholding that right when the mother is a married woman.
a. Due Process
The Fourteenth Amendment to the federal constitution and Article I § 6
of the state constitution prohibit the state from taking a citizen’s life, liberty, or property
without due process of law. A parent-child relationship may rise to the level of a
protected interest, because it is viewed as an interest in liberty. Lehr v. Robertson,
463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Nale v. Robertson, 871 S.W.2d
674 (Tenn. 1994). The right to raise a child is also a right of privacy guaranteed by the
Tennessee Constitution. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). But
constitutional protection does not result from the “mere existence of a biological link;”
an unwed father must demonstrate a “full commitment to the responsibilities of
parenthood” before “his interest in personal contact with his child acquires substantial
protection under the Due Process clause.” Lehr v. Robertson, 463 U.S. at 261, 103
S.Ct. at 2993, 77 L.Ed. at 626.
Whether Mr. Evans’ interest has risen to the level where it acquires
constitutional protection has not been determined. For the purpose of this argument,
we assume that it has. Nevertheless, the short answer to the due process argument
is that the statute does not deprive him of anything. At common law he had no right
to legitimate the child, and this state has never recognized that right except by the
statute in question. The statute creates rights rather than taking them away, and
should not be judged defective on due process grounds. We think Mr. Evans’ case
boils down to a question of whether his rights to equal protection have been violated
by the state giving the right to legitimate a child to a man who fathers a child by an
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unmarried woman while denying that right to men whose children are the product of
a liason with another man’s wife.
b. Equal Protection
The right to equal protection under the law, as preserved by both state
and federal constitutions, guarantees “equal privileges and immunities for all those
similarly situated.” Tennessee Small Schools v. McWherter, 851 S.W.2d 139, 152
(Tenn. 1993). The obverse of that proposition is a recognition that “things which are
different in fact or opinion are not required by either constitution to be treated the
same. Id. 851 S.W.2d at 153. See also MCI Telecommunications Corp. v. Taylor,
914 S.W.2d 519 (Tenn. App. 1995).
In a case brought as a paternity action pursuant to Tenn. Code Ann. §
36-2-103 (but treated by the Court of Appeals as a legitimation action) this court held
that where the child was born during the mother’s marriage to another man the state’s
interest in preserving family stability overrode any constitutionally cognizable interest
of the putative father. In the Matter of “A”, 735 S.W.2d 232 (Tenn. App. 1987). The
court quoted with approval from Petitioner F. v. Respondent R., 430 A.2d 1075 (Del.
1981):
[I]n this case, however, there exists the very powerful
countervailing public interest in promoting the marital
relationship, preserving intact an existing family unit, and
protecting the minor child from confusion, torn affection, and
the lifelong stigma of illegitimacy. Thus, even assuming
arguendo that the putative father has a constitutionally
cognizable interest, that interest would be outweighed by the
competing public interest and public policy in this case, and
he must be denied judicial access.
735 S.W.2d at 238, 430 A.2d at 1079.
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In Matter of “A”, this court also rejected the putative father’s argument
that the paternity statute violated his right to equal protection by giving the right to file
a petition to the mother and not to him. We found that the putative father was not in
the same category or circumstances as those within the family. We think that a
person seeking to legitimate a child born to a married woman is also in a
fundamentally different position from a man seeking to legitimate a child born to an
unmarried woman. The state’s interest in preserving the family justifies the state’s
decision to give the right of legitimation to one and not the other.
The judgment of the trial court is affirmed and the cause is remanded
to the Juvenile Court of Davidson County for any further proceedings necessary. Tax
the costs on appeal to the appellant.
_____________________________
BEN H. CANTRELL, JUDGE
SAMUEL L. LEWIS, JUDGE
SEPARATE CONCURRING OPINION
WILLIAM C. KOCH, JR., JUDGE
SEPARATE DISSENTING OPINION
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Michael Scott Evens v. Karen Maried Bisson Steelman
Combined Opinion