Christina Jane Compher v. Dana Janelle Whitefield

06/01/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 1, 2022 Session

CHRISTINA JANE COMPHER v. DANA JANELLE WHITFIELD

Appeal from the Juvenile Court for Rutherford County
No. JS-13389 Donna Scott Davenport, Judge
___________________________________

No. M2021-00474-COA-R3-JV
___________________________________

This appeal is a parentage action involving a same-sex domestic partnership, in which the
petitioner filed a petition seeking to be recognized as a legal parent of a child born by
artificial insemination after the parties made the mutual decision to have the child. The
juvenile court granted the respondent’s motion to dismiss finding that the petitioner lacked
standing. The petitioner appeals. We affirm.

Tenn. R. App. P. Rule 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Abby R. Rubenfeld, Nashville, Tennessee, and Laura D. Rogers, Memphis, Tennessee, for
the appellant, Christina Jane Compher.

Morgan E. Smith, Nashville, Tennessee, for the appellee, Dana Janelle Whitfield.

OPINION

I. FACTS & PROCEDURAL HISTORY

In 2002, Christina Jane Compher and Dana Janelle Whitfield were living in
Maryland and began “a committed personal relationship and domestic partnership,” which
would last for approximately 17 years. The parties dispute whether they were actually a
“couple” or romantically involved, but it was undisputed that they were never married.
The parties moved to Tennessee in 2004, along with Ms. Whitfield’s two children from a
prior relationship and Ms. Compher’s child from a prior relationship. Upon moving to
Tennessee, the parties decided that Ms. Whitfield would be a stay-at-home parent with the
children and that Ms. Compher would support the family. In approximately 2009-2010,
the parties decided to have a child together. The parties determined that Ms. Whitfield
would carry the child, they would use anonymous donated sperm to conceive the child, and
they would be equal parents regardless of their different biological connection to the child.
The parties then contracted with Cryogenic Laboratories to obtain the sperm from an
anonymous donor, and selected a fertility clinic in Tennessee to perform the actual
insemination.

On March 20, 2012, Emory (“the child”) was born.1 For approximately seven years,
the parties co-parented as equal parents and both held out the child as the child of both of
the parties. The parties then ended their partnership in December 2018, but they attempted
to live together and co-parent the child for several more months. However, Ms. Compher
moved out of the home in June 2019 because the relationship between the parties had
become “toxic.” The parties continued to co-parent for a short time, but Ms. Whitfield
later cut off the child’s contact with Ms. Compher.

On February 10, 2020, Ms. Compher filed a petition to establish parentage (or de
facto parentage) of and for the child. Ms. Compher sought to be recognized as a legal
parent of the child based on Tennessee Code Annotated section 36-2-304(a)(4).
Alternatively, she sought to be recognized as the de facto parent of the child since the child
was conceived through assisted reproduction and raised by the parties in a committed
relationship, where the parties shared equally in parenting and held out the child as the
child of both of them. Following the filing of this petition, the juvenile court magistrate
issued restraining orders pursuant to Tennessee Code Annotated section 36-6-116. Ms.
Compher then filed a motion to appoint guardian ad litem and a motion for a temporary
parenting schedule.

In April 2020, Ms. Whitfield filed a motion to dismiss pursuant to Tennessee Rules
of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be granted.
Ms. Whitfield also filed responses to Ms. Compher’s motions to appoint guardian ad litem
and for a temporary parenting schedule. Ms. Compher then filed a motion to set a hearing
and a response in opposition to the motion to dismiss.

On May 14, 2020, this Court issued its decision in Pippin v. Pippin, No. M2018-
00376-COA-R3-CV, 2020 WL 2499633, at *1 (Tenn. Ct. App. May 14, 2020), which
involved similar circumstances. In light of this decision, Ms. Compher filed a motion to
stay proceedings pending resolution of the Pippin case because an application for appeal

1
Ms. Whitfield was the only party named on the child’s birth certificate. The name(s) listed on a
birth certificate are not a finding of parentage nor do they create or terminate parental rights. In re Adoption
of A.F.C., 491 S.W.3d 316, 319 (Tenn. Ct. App. 2014). However, a birth certificate does provide “prima
facie evidence of the facts stated” therein. Id.; see Tenn. Code Ann. § 68-3-202.
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to the Tennessee Supreme Court was expected to be filed.2 However, on May 19, 2020,
the juvenile court magistrate entered an order granting Ms. Whitfield’s motion to dismiss
the petition to establish parentage. Following this order, Ms. Compher sought a de novo
hearing before the juvenile court judge by filing a request.

In August 2020, the juvenile court entered an order denying the motion to stay
proceedings and setting a hearing before the juvenile court judge. A de novo hearing was
then held in September 2020. On April 6, 2021, the juvenile court entered an order granting
Ms. Whitfield’s motion to dismiss and dismissing Ms. Compher’s petition. The juvenile
court found the Pippin decision to be “clearly controlling,” holding as follows:

From all the foregoing, the Court finds that the Court of Appeals
decision in Pippin . . . is clearly controlling. The Pippin opinion holds that a
non-biological parent of a child in a long-term relationship with the
biological parent, who helped raise the child from birth, and who had lived
with the child, holding herself out as one of the child’s parents with the
support of the biological parent, lacks standing to file a petition to establish
parentage. The Court of Appeals has held that the statute under which Pippin
and this case were brought, . . . § 36-2-304(A)(4), only covers unmarried
fathers, and not mothers. The Tennessee legislature has addressed similar
matters with grandparent and step-parent visitation rights and it is in their
authority to address similar issues in the future[,] but as the matter stands at
present based on the statute and the law[,] a party must prove the presumption
applies as a biological parent, and the only biological parent here is [Ms.
Whitfield]. Further, based on the Pippin opinion, Tennessee law does not at
this time recognize the concept of “de facto” parentage.

Therefore, the Court finds that [Ms. Whitfield’s] Motion to Dismiss
is hereby granted, as [Ms. Compher] has no means under current Tennessee
law to establish parentage and lacks standing to assert a claim. The Court
does find that this action was brought by Petitioner in good faith to change
existing law and as a result, there is no basis to award attorney fees to [Ms.
Whitfield] under . . . [§] 20-12-119. The Court finds that court costs should
be taxed to [Ms. Compher].

Ms. Compher timely filed her appeal on May 5, 2021.3 Shortly after this appeal was filed,
this Court issued its decision in Potts v. Potts, No. M2020-00170-COA-R3-CV, 2021 WL

2
Ms. Rubenfeld, counsel for Ms. Compher, was also counsel for the appellant in the Pippin case.
Ms. Rubenfeld later filed a copy of the Rule 11 application for review from the Pippin case to demonstrate
that an application for appeal to the Tennessee Supreme Court had been filed.
3
Ms. Compher explains in her appellate brief that she filed this notice of appeal prior to the written
opinion being entered by the juvenile court, but within 30 days of the ruling from the bench. She then filed
a second notice of appeal on May 7, 2020, after the written opinion had been entered.
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2226622, at *1 (Tenn. Ct. App. June 2, 2021), which, like Pippin, also involved similar
circumstances.

II. ISSUES PRESENTED

Ms. Compher presents the following issues for review on appeal, which we have
slightly restated:

1. Whether Pippin is no longer “clearly controlling” in light of Potts, and Ms. Compher
should be found to be a parent within the meaning of the parentage presumption
statute with standing to pursue this action;
2. Whether the juvenile court’s finding of no standing to pursue this parentage action
should be reversed since it was grounded on constitutionally impermissible
distinctions based on sex and the type of assisted reproduction utilized to conceive
the child involved; and
3. If the Tennessee parentage statutory scheme does not apply, whether an unmarried
adult who is not related to a child by biology or adoption, like Ms. Compher, has
standing to pursue this case nonetheless as a legal or de facto parent based on
Tennessee common law and the persuasive authority of other States, given the
precedent set by the Tennessee Supreme Court in In re C.K.G., 173 S.W.3d 714
(Tenn. 2005), particularly where, as here, that adult participated in the intentional
conception of that child; helped raise the child for the first seven years of her life
voluntarily and without expectation of compensation; supported the child
financially and emotionally; held the child out to the world as her natural child;
loved and parented the child; and the child was taught by her biological parent that
the adult was her other parent.

Ms. Whitfield presents the following issues for review on appeal, which we have slightly
restated:

1. Whether Pippin is controlling regarding standing in this matter meaning Ms.
Compher has no standing to file suit against Ms. Whitfield for parentage of the child;
2. Whether Potts did not overrule Pippin as to unmarried persons, Pippin is still
“clearly controlling,” and Ms. Compher should not be found to have standing as a
parent within the meaning of the parentage presumption statute to pursue this action;
3. Whether the juvenile court’s holding that Ms. Compher did not have standing should
be affirmed since it is not based on constitutionally impermissible distinctions and
Ms. Compher is asking this Court to legislate by extending the statutory basis for
parentage through assisted reproduction further than that created by the legislature;
4. Whether Tennessee does not recognize de facto parentage;
5. Whether this case should be remanded to the juvenile court for a determination of
the amount of costs and attorney’s fees to be paid by Ms. Compher to Ms. Whitfield

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 pursuant to Tennessee Code Annotated sections 20-12-119(c)(1) and 36-5-103(c)
and other authority; and
6. Whether Ms. Whitfield should be awarded her attorney’s fees on appeal and/or
awarded damages for frivolous appeal.

For the following reasons, we affirm the juvenile court’s decision to dismiss Ms.
Compher’s petition.

III. STANDARD OF REVIEW

This is an appeal of a dismissal pursuant to Tennessee Rule of Civil Procedure
12.02(6). “The standards by which our courts should assess and dispose of a Rule 12.02(6)
motion to dismiss are well-established and have been clearly and consistently applied” for
several decades now. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422,
426 (Tenn. 2011). Our Supreme Court has summarized the standard of review for a Rule
12.02(6) motion to dismiss as follows:

A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. A defendant who files a motion to dismiss “admits
the truth of all of the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of
action.”

In considering a motion to dismiss, courts “must construe the complaint
liberally, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences.” A trial court should grant a motion
to dismiss “only when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.” We review the
trial court’s legal conclusions regarding the adequacy of the complaint de
novo.

Lemon v. Williamson Cnty. Schs., 618 S.W.3d 1, 11-12 (Tenn. 2021) (quoting Webb, 346
S.W.3d at 426 (citations omitted)).

IV. DISCUSSION

At the outset of this discussion, we emphasize, as our Supreme Court did nearly two
decades ago, that cases such as the one at bar are commonly problematic considering that
the “technological fragmentation of the procreative process, insofar as it includes
techniques for egg and sperm donation and preservation, has engendered a bewildering
variety of possibilities which are not easily reconciled with our traditional definitions of
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‘mother,’ ‘father,’ and ‘parent.’” In re C.K.G., 173 S.W.3d at 721. At the time of our
Supreme Court’s decision in In re C.K.G. in 2005, Tennessee’s parentage and related
statutes did not contemplate the variety of possibilities that have been “made possible by
recent developments in reproductive technology.” Id. Still today, “the ability to create
children using assisted reproductive technology has far outdistanced the legislative
responses to the myriad of legal questions” that arise from assisted reproductive
technology. In re Amadi A., No. W2014-01281-COA-R3-JV, 2015 WL 1956247, at *10
(Tenn. Ct. App. Apr. 24, 2015) (quoting In re Baby, 447 S.W.3d 807, 841 (Tenn. 2014)
(Koch, J. concurring)).

A. Standing

In addressing the issue of standing, we believe it is helpful to briefly recount the
development of the law in Tennessee with regard to the relevant methods of reproductive
technology. Specifically, the development of both case law and statutes regarding both in
vitro fertilization and artificial insemination.

i. In re C.K.G.

We begin our analysis by discussing the precedent set by our Supreme Court in In
re C.K.G, a case dealing with in vitro fertilization, which Ms. Compher alleges is relevant
to some of the issues she has presented. The case involved a maternity dispute in which
“[a]n unmarried, heterosexual couple had three children by obtaining eggs donated from
an anonymous third-party female, fertilizing the eggs in vitro with the man’s sperm, and
implanting the fertilized eggs in the woman’s uterus.” In re C.K.G., 173 S.W.3d at 716.
After their relationship deteriorated, the unmarried woman filed a petition to establish
parentage and to obtain custody and child support. Id. at 718. The man argued that the
woman lacked a genetic connection to the children, failed to qualify as the children’s
“mother” under Tennessee’s domestic relation statutes, and lacked standing as a parent.
Id. at 718-19. On appeal, this Court “adopted the intent test . . . holding that ‘this issue
should be resolved by looking to the intent of the parties’ and not merely to genetics.” Id.
at 719. The Tennessee Supreme Court then granted the application for permission to appeal
to answer this question of first impression: “under such circumstances, who as a matter of
law is the children’s mother?” Id. at 719-20.

Our Supreme Court provided discussion on maternity disputes. Id. at 720. It
determined from the start that its “case [was] distinguishable from maternity disputes
within the context of ‘traditional surrogacy’”4 and was “closer in kind to ‘gestational
surrogacy with egg donation’” because an anonymous, surrogate egg donor had provided
eggs to the woman who was the gestator and “who gave birth ostensibly for her own

4
“Surrogacy is generally defined as ‘the process of carrying and delivering a child for another
person.’” In re Baby, 447 S.W.3d at 818 (quoting Black’s Law Dictionary 1582 (9th ed. 2009)).
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benefit.” Id.

In its analysis, our Supreme Court discussed several relevant statutes. “Tennessee’s
domestic relations statutes expressly account for genetics in parentage determinations.” Id.
at 729; see Tenn. Code Ann. §§ 36-1-102(10) and 36-2-302(4). The Court explained that
“although the definition of ‘biological parents’ in Tennessee Code Annotated section 36-
1-102(10) implicitly accounts for assisted conception by distinguishing between physical
(natural) and genetic conception, . . . the adoption and parentage statutes do not further
elaborate upon this distinction.” Id. at 723. The Court further explained that

the parentage statutes generally fail to contemplate dispute over maternity.
For example, the rebuttable presumptions of parentage provided in
Tennessee Code Annotated section 36-2-304 (2001) focus exclusively on
establishing paternity. See Tenn. Code Ann. § 36-2-304(a) (“A man is
rebuttably presumed to be the father of a child if . . . .”) (emphasis added).
The statutes also employ the term “mother” in a way that assumes we already
know who the “mother” is, see, e.g. Tenn. Code Ann. §§ 36-2-303, 36-2-
305(b)(1)(B) (2001), whereas references to “father” include such phrases as
“a man claiming to be the child’s father,” Tenn. Code Ann. § 36-2-
305(b)(1)(C), “alleged father,” Tenn. Code Ann. § 36-2-305(b)(4), and
“putative father,” Tenn. Code Ann. § 36-2-318 (2001). Similarly, the statute
providing for an order of parentage is concerned solely with the
establishment of paternity. See Tenn. Code Ann. § 36-2-311(a) (2001)
(“Upon establishing parentage, the court shall make an order declaring the
father of the child.”) (emphasis added). The statutes lack corresponding
language concerning the establishment of maternity.

Id. The Court then discussed whether it should apply “the genetics test” or “the intent test”
to establish legal maternity. Id. at 724-26. Ultimately, the Court declined to adopt either
the “genetic test” or the “intent test” and vacated the Court of Appeals decision. Id.

Instead, the Tennessee Supreme Court considered both genetics and intent as
relevant factors, along with gestation and the nature of the controversy. Id. at 727-30. The
Court then summarized the factors it based its decision on: (1) both parties demonstrated
the intent that the woman would be the children’s legal mother and agreed that she would
accept the legal responsibility as well as the legal rights of parenthood; (2) the woman then
became pregnant, carried to term, and gave birth to the three children as her own; and (3)
there was no controversy between the gestator and the female genetic progenitor where the
genetic and gestative roles had been separated and distributed among two women. Id. at
730. As such, the Court concluded that the woman was the children’s legal mother even
though she lacked a genetic connection.5 Id.

5
The Tennessee Supreme Court expressly limited its holding, stating: “[T]his case does not involve
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 In its opinion, the Court encouraged the Legislature to give direction in this area of
the law, stating:

Given the far-reaching, profoundly complex, and competing public
policy considerations necessarily implicated by the present controversy, we
conclude that crafting a general rule to adjudicate all controversies so
implicated is more appropriately accomplished by the Tennessee General
Assembly. Cf. Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003)
(declining to create a previously unrecognized common law cause of action
where doing so would have “far-reaching social and legal consequences in
an area that we have consistently left to legislative discretion”). The General
Assembly is better suited than the courts to gather data, to investigate issues
not subject to current litigation, and to debate the competing values and the
costs involved in such an issue as deciding whether generally to subject
procreation via technological assistance to governmental oversight, and if so,
to determine what kind of regulation to impose. Cf. Smith v. Gore, 728
S.W.2d 738, 747 (Tenn. 1987) (“The Court simply does not function as a
forum for resolution of . . . generalized public issues; rather, it must decide
the legal case or controversy presented by the particular parties before it.”).
Even courts which have crafted and applied the intent and genetic tests have
been cognizant of the need for legislative action concerning technologically
assisted human reproduction. Although the courts have the power to
“determine public policy in the absence of any constitutional or statutory
declaration,” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998)—indeed,
in this case we have crafted a judicial rule, albeit a particularly narrow one
which we find to be consistent with policy implicit in the Tennessee Code—
for us to declare a policy of sweepingly general and administratively grave
effect based on the very narrowly circumscribed data before us in this
controversy would cause us to intrude upon the legislative
function, see Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 768 (1922).

Id. at 730-32 (footnotes omitted).

The Court decided In re C.K.G. in 2005. As the Court in that case acknowledged,
Tennessee had a law which governed artificial insemination, but no legislation pertaining
to in vitro fertilization. Id. at 728, 730-32. See Tennessee Code Annotated Section 68-3-
306. In 2013, the General Assembly enacted Tenn. Code Ann. §§ 36-2-401 to -403.

a controversy between a gestator and a female genetic progenitor where the genetic and gestative roles have
been separated and distributed among two women, nor does this case involve a controversy between a
traditional or gestational surrogate and a genetically-unrelated intended mother; our holding today is not
designed to control such controversies.” In re C.K.G., 173 S.W.3d at 730.
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Subsequently, “we presume[d] that, in doing so, the General Assembly intended to address
the issues raised by In re C.K.G. . . . .” Potts, 2021 WL 2226622, at *11.

ii. Pippin

As previously stated, this Court issued its decision in Pippin in May 2020. Similar
to the case at bar,6 Pippin was a parentage action involving a same-sex partnership, in
which the petitioner filed a petition seeking to be recognized as a legal parent of a child
born by artificial insemination. Pippin, 2020 WL 2499633, at *1. The petitioner had lived
with the child and held herself out as a parent of the child. Id. Both parties taught the child
that they were both equally his parents. Id. This Court began our analysis in Pippin with
a portion devoted to the judicial doctrine of standing:

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 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, 102 S.Ct.
752, 70 L.Ed.2d 700 (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)).

6
We note that one difference between Pippin and the case at bar was the relationship of the parties
alleged in their respective petitions. None of the parties were married, but the parties in Pippin had
“executed a sworn Domestic Partner Affidavit to verify that they were a family, together supporting each
other and both children . . . .” Pippin, 2020 WL 2499633, at *1. Despite the fact that same-sex marriage
was not yet legal, “their commitment to each other and their family was just as strong without that legal
recognition,” demonstrated by the facts that the respondent was proposed to by the petitioner and later
legally changed her surname to the petitioner’s. Id. In this case, Ms. Compher’s petition only alleged that
the parties were in “a committed personal relationship and domestic partnership.” Ms. Whitfield notes in
her appellate brief that there was no allegation that a domestic partnership contract or affidavit was entered
into by the parties. Moreover, she notes that the petition never alleged the parties were a “same-sex couple”
or their relationship was “a romantic one.” As such, she contends that “this is not a situation where a same-
sex romantic couple is being disparately treated with respect to an opposite[-]sex couple on the basis of
gender.”
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Id. at *5. This Court then discussed two relevant statutes: Tennessee Code Annotated
sections 68-3-306 and 36-2-304. Id. at *6-7.

Section 68-3-306 is known as the artificial insemination statute, 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.” Tenn. Code Ann. § 68-3-306. The Court opined from a reading of this statute that
“section 306 does not create the relationship that [the petitioner] advocates or confer any
rights of parentage; the ‘marriage-neutral’ construction [the petitioner] urges is a strained
interpretation of the natural and ordinary meaning of the statutory language.” Pippin, 2020
WL 2499633, at *6. Yet the Court found that “[e]ven 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.” Id. Because the parties were not married at the time of the child’s
birth or any time afterward, we concluded that section 68-3-306 did not provide the
petitioner with standing. Id.

Section 36-2-304 is known as the presumption of parentage statute, which provides
in part as follows:

(a) A man is rebuttably presumed to be the father of a child if:

(1) The man and the child’s mother are married or have been married to each
other and the child is born during the marriage or within three hundred (300)
days after the marriage is terminated by death, annulment, declaration of
invalidity, or divorce;

(2) Before the child’s birth, the man and the mother have attempted to marry
each other in compliance with the law, although the attempted marriage is or
could be declared illegal, void and voidable;

(3) After the child’s birth, the man and the mother have married or attempted
to marry each other in compliance with the law although such marriage is or
could be declared illegal, void, or voidable; and:

(A) The man has acknowledged his paternity of the child in a writing
filed under the putative father registry established by the department
of children services, pursuant to § 36-2-318;

(B) The man has consented in writing to be named the child’s father
on the birth certificate; or

(C) The man is obligated to support the child under a written voluntary
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 promise or by court order;

(4) 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;
or

(5) Genetic tests have been administered as provided in § 24-7-112, an
exclusion has not occurred, and the test results show a statistical probability
of parentage of ninety-five percent (95%) or greater.

Tenn. Code Ann. § 36-2-304(a)(1)-(5).

The petitioner in Pippin argued that feminine words should be substituted for the
masculine words in this statute, and therefore she would have standing to pursue her action.
Pippin, 2020 WL 2499633, at *6. She relied on Tennessee Code Annotated section 1-3-
104, “[w]ords importing the masculine gender include the feminine and neuter, except
when the contrary intention is manifest.” Tenn. Code Ann. § 1-3-104(b). The Court did
not agree that recourse to section 1-3-104 was “required or necessary to resolve the issue
presented.” Pippin, 2020 WL 2499633, at *6. The Court held that “to substitute
‘comparable feminine terms’ for the words like ‘man’ or ‘father,’ . . . goes beyond allowing
words written in one gender [to] be construed, where necessary, to apply to the other, and
exceed[s] the purpose of the parentage statute . . . .” Id.; see Sneed v. Henderson, 366
S.W.2d 758, 759 (Tenn. 1963) (allowing suit to proceed for the wrongful death of an
infant’s 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”). Additionally, the Court explained that “[n]o rights or relationships are
created by the parentage statutes, only a procedure by which the father is able to establish
parentage . . . .” Id. As such, recourse to section 1-3-104(b) for other purposes was not
warranted. Id. We also found that we could not give a gender-neutral meaning to the term
“father,” which was defined in section 36-2-302 by the Legislature, for purposes of section
36-2-304. Id. at *7. “[T]o do so would extend both statutes’ meanings beyond that set
forth in the chapter.” Id. Because “the statutes governing parentage contemplate a
biological or genetic connection between the child and the putative parent,” we concluded
that the petitioner could not fit this definition. Id.

As a final matter under the issue of standing, we addressed the petitioner’s argument
that she would have standing if the Court established her as the de facto parent of the child.
Id. However, we stated that “[a]dherence 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.” Id.; see In re Thompson, 11 S.W.3d 913, 918-19, 923
(Tenn. Ct. App. 1999); In re Hayden C.G-J., No. M2012-02701-COA-R3-CV, 2013 WL
6040348, at *1 (Tenn. Ct. App. Nov. 12, 2013). We noted that “significant changes in the
legal landscape regarding the recognition of same-sex marriage have taken place since In
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re Hayden C.G-J. was decided,” but “the holding in that case remains applicable to the
facts of this case because the parties were unmarried.” Id. at *8 (footnote omitted).
Accordingly, we concluded that the petitioner lacked standing because she did not fall
within the zones of interests protected by the parentage statutes. Id.

iii. Potts

Approximately one year later, this Court issued its decision in Potts. Although the
case involved some similar circumstances, there are important distinctions between the two
cases. Potts was a request for relief from a permanent parenting plan involving a same-sex
couple who married shortly after the conception of the subject children and then divorced.
Potts, 2021 WL 2226622, at *1. Additionally, in contrast to Pippin and the case at bar, the
children were conceived by in vitro fertilization. Id. (emphasis added). Because Tennessee
Code Annotated section 36-2-401 to -403 specifically considered in vitro fertilization, we
focused our analysis on those statutes. Id. at *9.

We found from a reading of these statutes that “the legislature clearly expressed its
intent that contract principles—not biology—would control the question of parentage.” Id.
at *11. We explained that, under section 36-2-403, the status as the biological parent does
not place an individual in a superior position to that of the defendant who lacked a
biological connection to the children. Id. “Rather, because both parties in this case
contractually agreed to accept legal responsibility for the embryos and any children born
as a result, they are on equal footing as the parents of the children.” Id. Thus, this Court
held that the defendant was a parent of the children. Id. at *12.

Significantly, the Court in Potts concluded its decision with the following
paragraph:

In years past, parental rights were premised on the parties’ biological
relationship to the children and the parties’ marital status at the time of the
children’s birth. See State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 181-
83 (Tenn. Ct. App. 2000). This was based on society’s past understanding
of “family” as the traditional nuclear family—“a married heterosexual couple
and their children, if any.” In re Bernard T., 319 S.W.3d 586, 597 (Tenn.
2010). But, the traditional nuclear family is no longer the typical American
family. Id. With increased rates of divorce, non-marital childbearing, and
same-sex marriage—and advances in reproductive technology—our
society’s understanding of what constitutes a family has changed, and the
legal definition of “parent” has slowly changed with it, as it must. See id. at
597-98.

Potts, 2021 WL 2226622, at *12. Despite this language, the Court in Potts distinguished
its case from the Court’s decision in Pippin in footnote 11 of its opinion, explaining that:
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 [T]he legislature expressed its intent that the marital status of the parties
would not be relevant when establishing parentage in accordance with the
embryo transfer statutes. This is not the case with Tennessee’s artificial
insemination statute, Tenn. Code Ann. § 68-3-306, which requires that the
parties be married at the time of the child’s birth. See In re C.K.G., 173
S.W.3d at 728. As such, the artificial insemination statute has been
problematic for same-sex couples who conceived children through artificial
insemination prior to the Obergefell decision legally recognizing same-sex
marriage. The same-sex couple in Pippin, for example, conceived a child
through an artificial insemination procedure when the law in Tennessee
limited marriage to opposite-sex couples. 2020 WL 2499633, at *12. The
dissent argued that there was no difference between the plaintiff “and the
‘husband’ in Tenn. Code Ann. § 68-3-306 except for a marriage that the State
of Tennessee would not allow” due to the State’s unconstitutional law
forbidding same-sex marriage. Id. at *12. Because the embryo transfer
statutes are gender neutral and do not reference the marital status of the
parties, we need not consider the effect of Obergefell in this case.

Id. at *11 n.11.

For part of her first issue, Ms. Compher argues that Pippin is no longer “clearly
controlling” in light of this Court’s decision in Potts. However, from a reading of the plain
language used in our decision, we disagree. Since Potts did not overrule Pippin, Pippin is
still persuasive, if not “clearly controlling,” in this case.7

iv. Harrison

In a subsequent case, this Court reached a different result than Pippin concerning a
same-sex couple and the artificial insemination statute because the parties in that case were
legally married. Harrison v. Harrison, No. M2020-01140-COA-R3-CV, 2021 WL
4807239, at *6 (Tenn. Ct. App. Oct. 15, 2021). The Court stated that “section 68-3-306
applies in gender-neutral manner to [the nonbiological parent] who was [the biological
parent’s] wife during the artificial inseminations.” Id. Therefore, the Court held that “both

7
Counsel for Ms. Compher asserted during oral argument that because Pippin was not a reported
decision, it was not controlling but persuasive. Tenn. S.Ct. R. 4(g) (Unless certain exceptions apply,
“unpublished opinions . . . shall be considered persuasive authority.”). “[I]t is true that unpublished
opinions are not controlling,” but “Tenn. S.Ct. Rule 4(G) specifically states that unpublished cases
constitute persuasive authority.” Edwards v. City of Memphis, 342 S.W. 12, 17-18 (Tenn. Ct. App. 2010).
She also asserted that there were “significant errors” in the Pippin decision; however, we note that the
Tennessee Supreme Court declined to hear the case upon a Rule 11 application for review. Further, all the
issues presented for review in this case by Ms. Compher are substantively identical to issues raised in the
Rule 11 application which was filed in the Pippin case. Thus, while we are not bound to the decision in
Pippin, we deem it appropriate to rely on the holding in that case as persuasive authority.
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children born to [the biological parent] via artificial insemination during her marriage to
[the nonbiological parent] are ‘deemed’ to be [the nonbiological parent’s] ‘legitimate
children.’” Id. (footnote omitted). The Court distinguished its conclusion from Pippin
noting that the parties in its case were married, whereas the parties in Pippin were not. Id.
at *6 n.7; see also Pavan v. Smith, --- U.S. ----, 137 S.Ct. 2075, 2078, 198 L.Ed.2d 636
(2017) (analyzing a similar artificial insemination statute from Arkansas). This further
supports our conclusion that Potts did not overrule Pippin.

v. Analysis

Like Pippin, the parties here were never married. Furthermore, there is neither an
allegation that they intended to marry before or after Obergefell nor an allegation that they
were a “couple” or romantically involved. Ms. Compher’s petition only alleged that they
were in “a committed personal relationship and domestic partnership.” Under the holding
in Pippin, Ms. Compher would lack standing to pursue this action because her rights are
not “predicated upon the child being born to a married woman.” Pippin, 2020 WL
2499633, at *6. Ms. Compher does not even present an issue on appeal suggesting that she
would have standing under the artificial insemination statute, perhaps in recognition of the
fact that the parties were never married or never attempted to marry.8 Instead, she relies
on the presumption of parentage statute in Tennessee Code Annotated section 36-2-304.

In light of this Court’s decision in Potts, Ms. Compher argues that she should be
found to be a parent within the meaning of the presumption of parentage statute (Tennessee
Code Annotated section 36-2-304) with standing to pursue this action. Given that we have
previously found that Potts did not overrule Pippin and that the facts of this case are nearly
identical to those in Pippin, we disagree. To reiterate, this Court held in Pippin that “to
substitute ‘comparable feminine terms’ for the words like ‘man’ or ‘father,’ . . . goes
beyond allowing words written in one gender be construed, where necessary, to apply to
the other, and exceed[s] the purpose of the parentage statute as stated in section 36-2-201
. . . .” Id. The Court determined that it could not give a gender-neutral meaning to the
term “father,” which was defined in section 36-2-302 by the Legislature, for purposes of
section 36-2-304. Id. at *7. “[T]o do so would extend both statutes’ meanings beyond that
set forth in the chapter.” Id. Therefore, we concluded that the petitioner could not fit this
definition because “the statutes governing parentage contemplate a biological or genetic
connection between the child and the putative parent.” Id.

Ms. Compher further argues in her reply brief that only one of the five means for an
unmarried man to establish parentage under the presumption of parentage statute relies on
a biological connection; however, she ignores the definition section that must be read in
conjunction with this statute. See Tenn. Code Ann. § 36-2-302. The Legislature
consistently uses the descriptor “biological” in section 36-2-302, which provides

8
Ms. Compher only briefly raises an argument in a footnote in her appellate brief.
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definitions for “Father,” “Mother,” and “Parent.” The statute provides that a “‘[c]hild born
out of wedlock’ means a child born to parents who are not married to each other when the
child was born,” and “Parent” is defined as “the biological mother or biological father of
a child, regardless of the marital status of the mother and father[.]” Tenn. Code Ann. § 36-
2-302(1) and (5) (emphasis added); see also Tenn. Code Ann. § 36-1-102(10) (Under the
adoption statute, “[b]iological parents” is defined as “the woman and man who physically
or genetically conceived the child . . . .”). As such, if we were to give a gender-neutral
meaning to the term “father” for purposes of section 36-2-304, we “would extend both
statutes’ meanings beyond that set forth in the chapter.” Pippin, 2020 WL 2499633, at *7.

We reiterate the Court’s explanation in Pippin regarding the purpose of Tennessee
Code Annotated section 36-2-304: the presumption of parentage statute is “only a
procedure by which the father is able to establish parentage . . . .” Pippin, 2020 WL
2499633, at *6. Our Supreme Court has explained that section 36-2-304 “focus[es]
exclusively on establishing paternity.” In re C.K.G., 173 S.W.3d at 723 (emphasis added).
The Court echoed this point in a subsequent case stating, “the very point of the parentage
statutes is to determine the biological father of a child.”9 In re T.K.Y., 205 S.W.3d 343,
350 (Tenn. 2006). Therefore, the presumption of parentage statute does not apply here
because it is a procedure by which the father is able to establish parentage. Moreover, the
statute contemplates a biological or genetic connection between the child and the putative
parent, which was a connection Ms. Compher did not have to this child. We find that Ms.
Compher did not have standing to pursue this action pursuant to the presumption of
parentage statute found at Tennessee Code Annotated section 36-2-304.

B. De Facto Parentage

Ms. Compher also presents an issue regarding de facto parentage. She contends that
even if we find that the presumption of parentage statute does not apply here, she should
still be declared to be a legal parent or a de facto parent based on Tennessee common law
and basic equitable principles.

As explained earlier, this Court also addressed this issue in Pippin. “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.” Pippin,
2020 WL 2499633, at *7; see In re Thompson, 11 S.W.3d at 918-19, 923; In re Hayden
C.G-J., 2013 WL 6040348, at *1. “[I]n 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 . . . ‘lack[ed] a legal
foundation.’” Id. at *8 (quoting In re Hayden C.G-J., 2013 WL 6040348, at *1, *4).
“Although significant changes in the legal landscape regarding the recognition of same-

9
Conversely, “[u]nlike the parentage statute, the adoption and termination statutes are not
concerned solely with identifying a child’s biological father.” In re T.K.Y., 205 S.W.3d at 351.
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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.” Id.
(footnote omitted). As such, we concluded that the petitioner lacked standing because she
did not fall within the zones of interests protected by the parentage statutes. Id.

Just as we concluded for the first issue, Potts did not overrule Pippin, and therefore
the holding in Pippin is applicable to this case. Like Pippin, we again decline to adopt the
concept of de facto parentage and conclude that Ms. Compher did not have standing to
pursue this action under this concept.

C. Constitutionally Impermissible Distinctions

Ms. Compher presents an additional issue regarding constitutionally impermissible
distinctions. She argues that the juvenile court’s finding of no standing should be reversed
since it is based on constitutionally impermissible distinctions based on sex and the type
of assisted reproduction utilized to create the subject child, i.e., artificial insemination.

Ms. Compher contends that there is no such “important governmental objective” to
justify different treatment of men and women under a statutory provision that is not based
on biology or marriage. However, as explained before, we have established that the
presumption of parentage statute contemplates a biological connection between the child
and the putative parent. The presumption of parentage statute is based on biology because
it concerns “the matter of rights of biological fathers to establish parentage of their
children.” State ex rel. Cihlar, 39 S.W.3d at 183. For example, in a past case, a man sought
“to obtain a judicial declaration that he was the father of a child whose mother was married
to another man when the child was born.” Id. at 175. As we explained in that case, the
General Assembly has recognized several rebuttable presumptions under the presumption
of parentage statute:

Two of these presumptions are the presumption of parentage arising from a
man’s marriage to a child’s mother at the time of conception, see Tenn. Code
Ann. § 36-2-304(a)(1), and the presumption of parentage arising from a
genetic test showing a statistical probability of 95% or more that a particular
man is a child’s biological father. See Tenn. Code Ann. § 36-2-304(a)(5). In
addition, Tenn. Code Ann. § 36-2-305(b)(1)(C) permits any man claiming to
be a child’s father to file suit to establish parentage without reference to the
marital status of the child’s mother.

Id. at 184 (footnote omitted).

Ms. Compher cannot rely on or overcome the presumptions in this statute because
it is clear that she is not biologically or genetically connected to the child. Although Ms.
Compher may be connected to this child in some significant ways, biology or genetics is
- 16 -
not one of them. Consequently, Tennessee Code Annotated section 36-2-304 is
inapplicable to her situation. Because the presumption of parentage statute contemplates
this biological connection, we conclude that the juvenile court’s finding should not be
reversed on this basis.

Ms. Compher also argues that there is no functional difference between a child
conceived by embryo transfer and a child conceived by artificial insemination. Therefore,
she argues that the holdings in Pippin and Potts conflict by treating children and the people
who raise them in different manners for purposes of determining parentage. The Court
found in Pippin that the Legislature intended for the applicability of the artificial
insemination statute in Tennessee Code Annotated section 68-3-306 to “be predicated upon
the child being born to a married woman.” Pippin, 2020 WL 2499633, at *6. In contrast,
the Court found in Potts that the Legislature intended for the applicability of the in vitro
fertilization statute in Tennessee Code Annotated section 36-2-403 to be predicated on
“contract principles” and “not biology.” Potts, 2021 WL 2226622, at *11. As such, the
artificial insemination statute is grounded upon marriage, while the in vitro fertilization is
grounded upon contract principles.

Our Supreme Court has explained that “[t]he General Assembly is better suited than
the courts . . . in such an issue as deciding whether generally to subject procreation via
technological assistance to governmental oversight, and if so, to determine what kind of
regulation to impose.” In re C.K.G., 173 S.W.3d at 731; cf. Smith v. Gore, 728 S.W.2d
738, 747 (Tenn. 1987) (“The Court simply does not function as a forum for resolution of .
. . generalized public issues; rather, it must decide the legal case or controversy presented
by the particular parties before it.”). Why there is such a distinction between these two
types of technologically-assisted procreation is a question we are neither equipped nor
inclined to answer. This Court is not permitted “to question the wisdom of the statutory
scheme.” Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 524 (Tenn. 2013)
(quoting Green v. Johnson, 249 S.W.3d 313, 318 (Tenn. 2008)); see also Tenn. Const. art.
II, § 2. Instead, our purpose is “to interpret and apply the law.” Groves v. Ernst-Western
Corp., No. M2016-01529-COA-T10B-CV, 2016 WL 5181687, at *6 (Tenn. Ct. App. Sept.
16, 2016) (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 843 n.8 (Tenn. 2008)).
While “the courts have the power to ‘determine public policy in the absence of any
constitutional or statutory declaration,’” we decline to do so here where the statutory
language and the case law supports the conclusion we have reached. In re C.K.G., 173
S.W.3d at 731-32.

Based on the language of Tennessee Code Annotated section 68-3-306, the statute
is grounded upon a child being born in the context of marriage. In re C.K.G., 173 S.W.3d
at 728. “Tennessee’s artificial insemination statute provides married couples who pursue
artificial insemination a form of legal recognition by deeming the child born during their
marriage to be their ‘legitimate child.’” Harrison, 2021 WL 4807239, at *5. Here, the
parties were in a same-sex domestic partnership and chose to have a child by artificial
- 17 -
insemination, but they were not married nor did they choose to marry any time after the
United States Supreme Court’s decision in Obergefell legalized same-sex marriage. Ms.
Whitfield is the individual who gave birth to the child and who is biologically and
genetically connected to the child. While Ms. Whitfield had Ms. Compher’s consent to
proceed with the artificial insemination, they were not married, which the artificial
insemination statute is predicated upon. Therefore, we conclude that the juvenile court’s
finding should be affirmed.

D. Attorney’s Fees

i. Tennessee Code Annotated section 20-12-119

The juvenile court declined to award attorney’s fees under Tennessee Code
Annotated section 20-12-119 finding that this action was brought in good faith to challenge
existing law. Ms. Whitfield argues that this case should be remanded to the juvenile court
for a determination of the amount of costs and attorney’s fees to be paid by Ms. Compher
pursuant to Tennessee Code Annotated section 20-12-119(c)(1). Ms. Compher asserts that
section 20-12-119(c) provides an exception for cases such as this one: a good faith
challenge to modify and correct existing precedents. Thus, she argues that this case was a
good faith, non-frivolous effort for the purpose of modifying the impact of prior Tennessee
intermediate appellate decisions based on changes in the law. We agree with the juvenile
court and Ms. Compher on this issue. Section 20-12-119(c)(1) provides as follows:

(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 . . . 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 . . . whose claim or
claims were dismissed as a result of the granted motion to dismiss.

Tenn. Code Ann. § 20-12-119(c)(1). Additionally, section 20-12-119(c)(5)(E) provides
that subsection (c) shall not apply when:

(E) Any claim which is a good faith, nonfrivolous 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
- 18 -
 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)[.]

Tenn. Code Ann. § 20-12-119(c)(5)(E). At the very least, Ms. Compher’s petition sought
to extend existing precedent to recognize de facto parentage in Tennessee and cited
decisions from other jurisdictions to support her argument. Additionally, her petition was
filed before this Court issued its decision in either the Pippin or the Potts case. Therefore,
we decline to remand this case to the juvenile court for a determination of the amount of
costs and attorney’s fees pursuant to Tennessee Code Annotated sections 20-12-119(c)(1).

ii. Tennessee Code Annotated section 36-5-103

Ms. Whitfield also argued that this case should be remanded to the juvenile court
for a determination of the amount of costs and attorney’s fees to be paid by Ms. Compher
under Tennessee Code Annotated section 36-5-103(c). Section 36-5-103(c) provides as
follows:

(c) A prevailing party may recover reasonable attorney’s fees, . . . from the
nonprevailing party in any . . . proceeding to enforce, alter, change, or modify
any decree of alimony, child support, or provision of a permanent parenting
plan order, or in any suit or action concerning the adjudication of the custody
or change of custody of any children, both upon the original divorce hearing
and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c) (emphasis added). This statute “has been broadly
interpreted in many ways.” St. John-Parker v. Parker, 638 S.W.3d 624, 638 (Tenn. Ct.
App. 2020); see e.g., Toms v. Toms, 98 S.W.3d 140, 145 (Tenn. 2003) (interpreting the
statute to authorize awards of attorney fees against intervening grandparents who were not
a “spouse”); Dale v. Dale, No. M2018-01999-COA-R3-CV, 2019 WL 7116204, at *2
(Tenn. Ct. App. Dec. 20, 2019) (“This provision has been construed broadly to permit the
award of attorney’s fees in corollary matters, such as actions to modify visitation rights.”);
Muhlstadt v. Muhlstadt, No. M2012-01267-COA-R3-CV, 2013 WL 3833563, at *6 (Tenn.
Ct. App. July 19, 2013) (“This statute has been interpreted by the courts as allowing for
the award of attorney’s fees to a party defending an action to change a prior order on the
theory that the defending party is enforcing the prior order.”) (quotation omitted); Brewster
v. Galloway, No. E2011-01455-COA-R3-CV, 2012 WL 2849428, at *12 (Tenn. Ct. App.
- 19 -
July 11, 2012) (recognizing that the statute has been applied to parties who were never
“spouses” but had children born out of wedlock); Pounders v. Pounders, No. W2010-
01510-COA-R3-CV, 2011 WL 3849493, at *5 (Tenn. Ct. App. Aug. 31, 2011) (finding
“no support for Father’s narrow interpretation of the statute” and awarding attorney’s fees
even though the petition was voluntarily dismissed prior to adjudication); Evans v. Evans,
No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at *13 (Tenn. Ct. App. Aug. 23,
2004) (“[T]he broad interpretation given the statute, based upon its incorporation of the
common law, in the context of child support orders should also apply to spousal support
orders.”). Even assuming, arguendo, that section 36-5-103(c) allows Ms. Whitfield to
recover attorney’s fees under these circumstances,10 such an award is still within the sound
discretion of this Court. In re C.W., 420 S.W.3d 13, 22 (Tenn. Ct. App. 2013) (citing
Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). Exercising our discretion,
we decline to award Ms. Whitfield attorney’s fees pursuant to Tennessee Code Annotated
section 36-5-103(c).

iii. Tennessee Code Annotated section 27-1-122

Alternatively, Ms. Whitfield seeks an award for damages on appeal for a frivolous
appeal. Tennessee Code Annotated section 27-1-122 provides as follows:

When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122. “Determining whether to award damages pursuant to
Tennessee Code Annotated section 27-1-122 ‘is a discretionary decision.’” Cored, LLC v.
Hatcher, No. M2020-00083-COA-R3-CV, 2020 WL 5944067, at *11 (Tenn. Ct. App. Oct.
6, 2020) (quoting Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003)). “A
frivolous appeal is one that is ‘devoid of merit’ or ‘has no reasonable chance of
succeeding.’” Id. (quoting Young, 130 S.W.3d at 67). Although Ms. Compher was not
successful on appeal, we cannot say that the appeal was “totally devoid of merit.” As such,
we decline to award Ms. Whitfield damages pursuant to Tennessee Code Annotated section
27-1-122.

V. CONCLUSION

10
We make no determination concerning whether Tennessee Code Annotated section would allow
Ms. Whitfield to recover her attorney’s fees under the circumstances of this case. See In re Ryat M., No.
M2020-00156-COA-R3-JV, 2021 WL 4432729, at *7 n.7 (Tenn. Ct. App. Sept. 27, 2021) (“We make no
determination concerning whether Tennessee Code Annotated section 36-5-103(c) would allow the
Grandparents to recover their attorney’s fees in this case.”).
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 For the aforementioned reasons, we affirm the decision of the juvenile court. Costs
of this appeal are taxed to the appellant, Christina Jane Compher, for which execution may
issue if necessary.

_________________________________
CARMA DENNIS MCGEE, JUDGE

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