Opinion
Appeal No. 01-A-01-9511-JV-00508.
October 2, 1996.
Court of Appeals of Tennessee, Davidson Juvenile No. 9419-13267.
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 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 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. 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.
See Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Durr v. Blue, 454 So.2d 315 (La. Ct. App. 1984); Ind. Code 31-6-6.1-2(2) Supp. 1995; Iowa Code Ann. § 600 B.8 (West 1996).
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 anunmarried woman, and, subsection (c) underscores the restrictions placed on putative fathers by making the mother's consent a requirement in any legitimation proceeding. 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.
We 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.
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. 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 bothpublished 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.)
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.
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 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.
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
I fully concur in Judge Cantrell's opinion. I have read with much interest Judge Koch's dissenting opinion. The matters set forth in the dissenting opinion might make good public policy, but the setting of public policy is not a matter for this court or any court in Tennessee.
"[It is generally recognized that the public policy of a State is to be found in its Constitution and statutes, and] only in the absence of any declaration in [Constitution and statutes] may [public policy] be determined from judicial decisions. [In order to ascertain the public policy of a State in respect to any matter, the acts of the legislative department should be looked to, because a legislative act, if constitutional, declares in terms the policy of the State, and is final so far as the courts are concerned.] All questions of policy are for the legislature, and not for the courts. . . [Hence the courts are not at liberty to declare a law void as in violation of public policy.] Where courts intrude into their decrees their opinion on questions of public policy, they in effect constitute the judicial tribunal as law making bodies in usurpation of the powers of the legislature."
Hodges v. S.C. Toof Co. , 833 S.W.2d 896, 902-03 (Tenn. 1992) (quoting Cavender v. Hewitt , 145 Tenn. 471, 475-76, 239 S.W. 767, 768 (1921))(alterations in original).
"This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must, in general, be addressed to the Legislature. Questions of policy determined there are concluded here.["]
"There are cases, it is true, in which arguments drawn from public policy must have large influence; but these are cases in which the course of legislation and administration does not leave any doubt upon the question what the public policy is, and in which what would otherwise be obscure or a doubtful interpretation, may be cleared and resolved by reference to what is already received and established.["]
Nashville Railway Light Co. v. Lawson , 144 Tenn. 78, 91, 229 S.W. 741, 744 (Tenn. 1921) (quoting License Tax Case , 5 Wall. 462, 469, 18 L.Ed. 497, 500 (1867)).
The statute in this case is clear and constitutional. Therefore, I concur in Judge Cantrell's well-reasoned opinion.
________________________________ SAMUEL L. LEWIS, J.
Michael Scott Evans is seeking nothing more than to acknowledge his parental responsibilities to Jacob Ryan Steelman. The majority, however, has decided that he is not entitled to prove in court that he is the boy's biological father simply because the child's mother was married to another man when he was born. This decision rests squarely on an erroneous judicial interpretation of Tennessee's legitimation statutes. Rather than perpetuating injustice, our responsibility as common law judges is to remedy, not ignore, plain judicial mistakes.
I.
The facts of this case fall into an all too common pattern. Karen Marie Bisson Steelman married Jamie R. Steelman in July 1993 when she was only eighteen years old. The marriage foundered within six months, and in January 1994 Ms. Steelman left her husband and moved into an apartment with Michael Scott Evans. Ms. Steelman admittedly had sex regularly with Mr. Evans. After discovering that she was pregnant in March 1994, Ms. Steelman openly acknowledged to Mr. Evans and his family as well as to her medical providers and other acquaintances that Mr. Evans was the child's father.
Mr. Evans stated in a brief filed in the juvenile court that his relationship with Ms. Steelman began in 1991. The record contains no evidentiary substantiation for this assertion.
Mr. Evans began making preparations for the child with the expectation that he would eventually marry Ms. Steelman. However, his relationship with Ms. Steelman soured in June 1994 apparently because of a dispute over their unborn child. On June 13, 1994, Ms. Steelman wrote Mr. Evans a note stating:
I have always said that I would never keep our child away from you, but don't you dare think for a second that I would let you take my child from me. Don't even think about trying because you'll be sorry.
Yes I didn't graduate, but that's being taken care of now. Yes I got married at 18 and am getting divorced. I also got beat-up. Yes I am pregnant by a man who is not my husband, but you also got another man's wife pregnant.
I promise you'll be sorry if you try to take my child away. As long as I'm alive you will not have custody of our baby. As long as you don't test that, you will be able to see your child as much as you want.
I can't handle all the stress that you're putting on me, so for our child's sake, please stop.
Ms. Steelman moved out of Mr. Evans's apartment in early July 1994 without telling him where she was going. She telephoned Mr. Evans in August to inform him that she was returning to Mr. Steelman, that the child would not bear his surname, and that she would not list him as the child's father on the birth certificate.
Thereafter, Ms. Steelman kept Mr. Evans in the dark about her pregnancy and the child. On November 24, 1994, Ms. Steelman gave birth to a son named Jacob Ryan Steelman. She listed Mr. Steelman as the father on the child's birth certificate. Mr. Evans found out about the child's birth three days later when the hospital telephoned his residence seeking Ms. Steelman.
When Ms. Steelman rebuffed his efforts to see the child, Mr. Evans hired a lawyer and on December 12, 1994, filed a sworn petition to legitimate the child in the Davidson County Juvenile Court. Mr. Evans made an unconditional offer in the petition to support the child financially and requested the juvenile court to order the parties to submit to blood tests to conclusively establish that he was the child's biological father.
Ms. Steelman vigorously opposed Mr. Evans's legitimation petition just as she threatened she would in her June 13, 1994 note. While she did not deny her six-month sexual liaison with Mr. Evans, she obtained an affidavit from Mr. Steelman asserting that he had also continued to have sex with Ms. Steelman while she was living with Mr. Evans and that he considered himself to be the child's father. She also asserted in her answer and in a later motion to dismiss that Mr. Evans had no standing under Tenn. Code Ann. § 36-2-202 (Supp. 1995) to file a legitimation petition. Her argument rested on this court's construction of Tenn. Code Ann. § 36-2-202(a) in Cunningham v. Golden, 652 S.W.2d 910, 913 (Tenn. Ct. App. 1983), appeal dismissed, 466 U.S. 966, 104 S.Ct. 2336 (1984), that a child born while its mother was married could not be considered as a "child not born in lawful wedlock" for the purpose of the legitimation statute.
On June 15, 1995, Mr. Evans filed a formal acknowledgment that he was Jacob Ryan Steelman's biological father with the Putative Father Registry maintained by the Department of Human Services in accordance with Tenn. Code Ann. § 36-2-209 (1991 Supp. 1995). A juvenile court referee and the juvenile court judge later dismissed his petition without ordering blood tests on the ground that he did not have standing under Tenn. Code Ann. § 36-2-202 to legitimate Jacob Ryan Steelman. The majority has decided to affirm. While proclaiming that they might interpret Tenn. Code Ann. § 36-2-202 differently were it not for the Cunningham v. Golden decision, they have decided not to consider the question anew because they believe that the legislature has somehow written the Cunningham v. Golden decision into the current legitimation statutes.
II.
The threshold issue is whether the construction of Tenn. Code Ann. § 36-2-202(a) in Cunningham v. Golden has become so firmly established that the doctrine of stare decisis places it beyond our consideration at this time. While adhering to precedent is usually a wise policy, the courts are not constrained to follow precedents that have produced unjust results or are poorly reasoned.
A.
The common law consists of a vast body of judicial precedents representing the courts' resolution of concrete controversies using workable solutions to control conduct or to define legal relations. These precedents provide the courts with authoritative guidance for their decisions and also enable the bar and the public to predict how the courts will decide future cases. They serve their purpose best when they are consistent and uniform, State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 303, 154 S.W. 1151, 1154 (1913); Steedman, Steere Co. v. Dobbins Dazey, 93 Tenn. 397, 406, 24 S.W. 1133, 1135 (1894), and it is this uniformity and consistency that undergirds the public's confidence in the judicial system. Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991); Davis v. Davis, 657 S.W.2d 753, 758 (Tenn. 1983).
2 Roscoe Pound, Jurisprudence 166 (1959).
J.T. Fargason Co. v. Ball, 128 Tenn. 137, 141, 159 S.W. 221, 222 (1913); O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460-61 (1897).
Judicial decisions are shaped not only by legal principles and doctrines but also by the decision-making techniques used to develop and apply them. It is the courts' respect for the doctrine of stare decisis that accounts for the uniformity of the precedents and the consistency in the courts' decision-making techniques. As a decision-making technique, the doctrine of stare decisis promotes consistency by requiring adherence to settled principles of law recognized and followed in earlier cases. Staten v. State, 191 Tenn. 157, 159, 232 S.W.2d 18, 19 (1950); Barton's Lessee v. Shall, 7 Tenn. (Peck) 214, 232 (1823). Thus, stare decisis admonishes courts not to overturn decisions in an arbitrary or cavalier manner. Ferguson v. Ram Enters., Inc., 900 S.W.2d 19, 21 (Tenn. 1995); State v. Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994).
Dean Pound explained the relationship between the legal principles and the techniques used to decide cases as follows: "The body of precepts gets its whole life from the technique of developing and applying them; and that technique gets its color and its direction, and the precepts themselves get their shape and content for the time being from the traditional ideas or current professional ideas as to the end of law." 1 Roscoe Pound, Jurisprudence 73 (1959).
As important as the doctrine is, stare decisis is not an inexorable command, Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 2609-10 (1991), or an inflexible, mechanical formula. City of Memphis v. Overton, 216 Tenn. 293, 298, 392 S.W.2d 98, 100 (1965). It does not command "mindless obedience" from the courts. McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992); Hanover v. Ruch, 809 S.W.2d 893, 898 (Tenn. 1991). Prior decisions are not "like the holy ark of the covenant, too sacred to be touched." Barton's Lessee v. Shall, 7 Tenn. (Peck) at 232. Since the law should serve the needs of the people, Dupuis v. Hand, 814 S.W.2d at 345-46; Powell v. Hartford Accident Indem. Co., 217 Tenn. 503, 513, 398 S.W.2d 727, 732 (1966), the doctrine of stare decisis should not impede the growth and development of the law. Hamby v. McDaniel, 559 S.W.2d 774, 780 (Tenn. 1977); Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 389, 358 S.W.2d 471, 473 (1962).
The courts must re-examine prior decisions when the circumstances require. If they cannot distinguish or sidestep a prior decision, they must be prepared to reject and overrule when necessary to protect the interests and rights of the public and to promote respect for the law. The courts should exercise their power sparingly, Edingbourgh v. Sears, Roebuck Co., 206 Tenn. 660, 664, 337 S.W.2d 13, 14 (1960); J.T. Fargason Co. v. Ball, 128 Tenn. at 142, 159 S.W. at 222, and should only disregard a prior decision when the difficulties caused by doing so are outweighed by the problems caused by adhering to the earlier decision. Lee v. Harris, 188 Tenn. 373, 376-77, 219 S.W.2d 892, 893 (1949); Steedman, Steere Co. v. Dobbins Dazey, 93 Tenn. at 406, 24 S.W. at 1135.
Shay v. Harper, 202 Tenn. 141, 151, 303 S.W.2d 335, 340 (1957) (distinguish prior decisions to avoid injustice); Griffitts v. Humphrey, 199 Tenn. 528, 532, 288 S.W.2d 1, 3 (1955) (courts must make a clear distinction when an earlier decision cannot be "sidestepped very gently").
Rigid reliance on the doctrine of stare decisis can confound the truth and foster an attitude of contempt for the law. McIntyre v. Balentine, 833 S.W.2d at 56; Dupuis v. Hand, 814 S.W.2d at 345; Hanover v. Ruch, 809 S.W.2d at 898; Davis v. Davis, 657 S.W.2d at 758.
The courts must have a compelling reason to overturn a prior decision. Blue Ridge Ins. Co. v. Haun, 197 Tenn. 527, 536, 276 S.W.2d 711, 715 (1954); Barnes v. Walker, 191 Tenn. 364, 369, 234 S.W.2d 648, 650 (1950). The two most common circumstances warranting the relaxation of the doctrine of stare decisis are when the prior precedent has become obsolete because of changes in the law, Ferguson v. Ram Enters., Inc., 900 S.W.2d at 21; Metropolitan Gov't v. Poe, 215 Tenn. 53, 80-81, 383 S.W.2d 265, 277 (1964), or when the prior decision has manifestly misunderstood or misapplied the law. Summers v. Thompson, 764 S.W.2d 182, 199 (Tenn. 1988) (Drowota, J., concurring); Foster v. Roberts, 142 Tenn. 350, 360, 219 S.W. 729, 731 (1920); Arnold v. Mayor of Knoxville, 115 Tenn. 195, 202, 90 S.W. 469, 470 (1905); The Judges' Cases, 102 Tenn. 509, 542, 53 S.W. 134, 142 (1899).
The doctrine of stare decisis does not apply with full force to principles that have not been directly adopted by the Tennessee Supreme Court. Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). Lower courts must follow the Tennessee Supreme Court's decisions, Payne v. Johnson, 2 Tenn. Cas. (Shannon) 542, 543 (1877); Haun v. Guaranty Sec. Ins. Co., 61 Tenn. App. 137, 158, 453 S.W.2d 84, 94 (1969); Levitan v. Banniza, 34 Tenn. App. 176, 185, 236 S.W.2d 90, 95 (1950), but they are not required to adhere as strictly to decisions of courts of coordinate or lesser jurisdiction. While published intermediate appellate court decisions have some precedential value, Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993), the precedential value of unpublished opinions is somewhat weaker. Ford v. State, 184 Tenn. 443, 454, 201 S.W.2d 539, 544 (1947). Thus, intermediate appellate court decisions where no application for permission to appeal has been filed have no stare decisis effect. Swift v. Kirby, 737 S.W.2d at 277; Board of Comm'rs v. Obion County, 188 Tenn. 666, 669, 222 S.W.2d 7, 8 (1949); Gotten v. Gotten, 748 S.W.2d 430, 431 (Tenn.Ct.App. 1987).
B.
The Tennessee Supreme Court has never construed the meaning of the phrase "child not born in lawful wedlock" in Tenn. Code Ann. § 36-2-202(a). The first reported judicial construction of this phrase appeared in the Cunningham v. Golden decision. This decision has been followed by panels of the Eastern and Western Sections of this court in one published and three unpublished decisions. Cooper v. Thompson, 710 S.W.2d 944, 946 (Tenn.Ct.App. 1985); In re Young (Meadows v. Wells), App. No. 01-A-01-9409-GS-00417, slip op. at 2-3 (Tenn.Ct.App. June 30, 1995) (Memorandum Opinion), perm. app. denied (Tenn. Oct. 23, 1995); Frady v. Frady, C.A. No. 155, slip op. at 3-4 (Tenn.Ct.App. Mar. 18, 1991) (Memorandum Opinion), perm. app. denied (Tenn. June 24, 1991); In re Doss (Doss v. Daily), C.A. No. 69, slip op. at 2 (Tenn.Ct.App. June 9, 1989) (No Tenn. R. App. P. 11 application filed).
The Tennessee Supreme Court declined to review the Cunningham v. Golden decision and three of the four cases following it. These dispositions do not add precedential weight to Cunningham v. Golden because the simple denial of an application for permission to appeal does not indicate that the Tennessee Supreme Court agrees with any of the holdings in the decision. Meadows v. State, 849 S.W.2d at 752; Swift v. Kirby, 737 S.W.2d at 277; Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d 85, 88 (1939); Lingner v. Lingner, 165 Tenn. 525, 529, 56 S.W.2d 749, 750 (1933).
The United States Supreme Court also declined to review the decision even though Justices White and Blackmun would have noted probable jurisdiction. Cunningham v. Golden, 466 U.S. 966, 104 S.Ct. 2336 (1984).
I can find no reliable indication that the Tennessee Supreme Court intended to limit its comments concerning the significance of a simple denial of an application for permission to appeal to multi-issue cases. In fact, just the contrary seems to be the case. See, for example, Swift v. Kirby, 737 S.W.2d at 274, in which the sole issue was the correctness of this court's decision in an earlier case that the "equity of redemption" did not include the statutory right of redemption.
Thus Cunningham v. Golden has not become so ingrained in our law that it should be viewed as a rule of property. In the absence of an authoritative interpretation of Tenn. Code Ann. § 36-2-202(a) by the Tennessee Supreme Court, the doctrine of stare decisis does not prevent us from reconsidering one of our own decisions and departing from it if the circumstances require.
III.
The common law treated children born out of wedlock harshly. Because they were considered to be no one's children, they could not require their biological father to support them and could not inherit from their biological parent. Allen v. Harvey, 568 S.W.2d 829, 831-32 (Tenn. 1978); Swanson v. Swanson, 32 Tenn. (2 Swan) 445, 453 (1852). Because there was no judicial remedy, the only way to legitimate a child born out of wedlock was by "the transcendent power of an act of parliament." 1 William Blackstone, Commentaries *459.
During the early years of Tennessee's statehood, the General Assembly was frequently called upon to enact legislation to legitimate particular individuals. These acts were looked upon with disfavor; McCormick v. Cantrell, 15 Tenn. (7 Yer.) 615, 623 (1835). The number of these requests had increased so much by 1805 that the General Assembly empowered the courts to legitimate children born out of wedlock. Act of Oct. 3, 1805, ch. 2, 1805 Tenn. Pub. Acts 4. The creation of this judicial remedy did not succeed in diverting legitimation matters from the legislature to the courts. Accordingly, the drafters of the Constitution of 1835 included a provision in the new constitution prohibiting the General Assembly from suspending any general law for the benefit of any particular individual. Tenn. Const. of 1835, art. XI, § 7. Later, the drafters of the Constitution of 1870 included a provision specifically prohibiting the General Assembly from "pass[ing] acts adopting or legitimatizing persons." Tenn Const. art. XI, § 6.
The General Assembly's reasons for creating this judicial remedy were clearly reflected in the bill's preamble which stated that "the frequent applications to this General Assembly, have become troublesome, and have a tendency to expose the morals of society, and unnecessarily put the State to considerable expence for public printing, and time of the Legislature."
Tenn. Const. art. XI, § 7 provided:
The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefits of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law, extended to any member of the community, who may be able to bring himself within the provisions of such law: provided always, the Legislature shall have power to grant such charters of incorporation as they may deem expedient for the public good.
The Tennessee Supreme court later noted that this provision prevented the General Assembly from passing private laws legitimating particular individuals. Swanson v. Swanson, 32 Tenn. (2 Swan) at 454.
The original legitimation act provided that any of the inperior [sic] or county courts of law in this state, shall have full power and authority to alter the name of any illegitimate person on application of any person wishing to make legitimate any of their off-spring not born in wedlock: Provided, said applicant intends to make said illegitimate person heir, or joint heir to his or her estate.
Act of Oct. 3, 1805, ch. 2, § 1, 1805 Tenn. Pub. Acts 4. This provision was altered slightly in the 1858 Code of Tennessee to provide:
The application to legitimate a child not born in lawful wedlock is made by a petition in writing, signed by the person wishing to legitimate such child, and setting forth the reasons therefor.
Code of Tennessee § 3640 (1858). This language has been carried forward essentially unchanged into the current code and was the very language construed in Cunningham v. Golden. See Tenn. Code Ann. § 36-2-202(a).
Compare Code of Tennessee § 3640 (1858) with Shannon's Code of Tennessee § 5406 (1896); Code of Tennessee § 9565 (1932); Tenn. Code Ann. § 36-302 (1955). The General Assembly amended the provision in 1965 to require that the application for legitimation include the state and date of the child's birth. Act of Mar. 2, 1965, ch. 112, § 2, 1965 Tenn. Pub. Acts 418.
The General Assembly has amended the legitimation statutes twice since the Cunningham v. Golden decision, but neither change related to the class of persons permitted to file legitimation actions under Tenn. Code Ann. § 36-2-202(a) or to the class of children for whom legitimation could be requested. In 1992, the General Assembly provided natural fathers with a second procedure for acknowledging the paternity of a child born out of wedlock. It authorized them to execute a notarized "acknowledgment of paternity" at the hospital where the child was born. It also required the hospital to forward the birth certificate and acknowledgment of paternity to the juvenile court and directed the juvenile court to enter an order of legitimation consistent with these documents. Act of Apr. 30, 1992, ch. 1012, § 1, 1992 Tenn. Pub. Acts 1049, 1050 (codified at Tenn. Code Ann. § 36-2-202(b)(1), -202(b)(2) (Supp. 1992)). In addition, the 1992 legislation provided that this new alternate procedure could not be used without the mother's consent and that any order of legitimation based on an "acknowledgment of paternity" could be rescinded if a later blood test proved conclusively that "the named father cannot be the natural father of the child." Act of Apr. 30, 1992, ch. 1012, § 1, 1992 Tenn. Pub. Acts 1049, 1050 (codified at Tenn. Code Ann. § 36-2-202(b)(3), -202(b)(4) (Supp. 1992)).
The General Assembly amended the "acknowledgment of paternity" procedure in 1994. The apparent purpose of this amendment was to clarify the procedure for filing the notarized acknowledgment of paternity and birth certificate with the juvenile court and to remove the provision permitting the father to use a later blood test to rescind an order of paternity. This amendment also changed the designation of the maternal consent requirement from Tenn. Code Ann. § 36-2-202(b)(3) to Tenn. Code Ann. § 36-2-202(c).
Act of Apr. 21, 1994, ch. 988, § 6, 1994 Tenn. Pub. Acts 1016, 1019.
A panel of the Eastern Section of this court has recently held that Tenn. Code Ann. § 36-2-202(c) is unconstitutional if interpreted to require maternal consent before a natural father may file an application under Tenn. Code Ann. § 36-2-202(a) to legitimate a child. In re Hood (Vineyard v. Hood), App. No. 03-A-01-9508-JV-00296, slip op. at 14 (Tenn.Ct.App. June 10, 1996) (No Tenn. R. App. P. 11 application filed). While this analysis is fundamentally sound, the panel could have avoided deciding the constitutional question by pointing out that the legislative history of the maternal consent requirement clearly demonstrates that it applies only to the "acknowledgment of paternity" proceedings under Tenn. Code Ann. § 36-2-202(b), not to legitimation petitions filed directly in court under Tenn. Code Ann. § 36-2-202(a).
The phrase "child not born in lawful wedlock" in Tenn. Code Ann. § 36-2-202(a) has existed without change for almost one hundred and forty years. Neither of the two amendments to Tenn. Code Ann. § 36-2-202 enacted after the Cunningham v. Golden decision altered this phrase. Nothing in the language of the amendments themselves or in their legislative history confirms, or even implies, that the General Assembly intended to depart from the common, traditional meaning of the phrase in favor of the interpretative gloss put on the phrase in Cunningham v. Golden or even that it was aware of the Cunningham v. Golden decision. Since there is no direct, reliable support for the notion that the General Assembly has somehow approved the Cunningham v. Golden decision, the 1992 and 1994 amendments to Tenn. Code Ann. § 36-2-202, like the doctrine of stare decisis, should not prevent us from reconsidering the Cunningham v. Golden decision.
The majority makes much of the fact that the General Assembly has not amended Tenn. Code Ann. § 36-2-202(a) since the Cunningham v. Golden decision. Citing Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977), it asserts that this legislative inaction is "persuasive evidence" that the legislature approves of Cunningham v. Golden's construction of "child not born in lawful wedlock." While the majority correctly cites Hamby v. McDaniel, reason and common sense caution against reading too much into legislative inaction.
The "inaction doctrine" relied on so heavily by the majority has few defenders today. William H. Eskridge, Jr., The New Textualism, 37 U.C.L.A. L. Rev. 621, 640 (1989), reprinted in 2A Norman J. Singer, Statutes and Statutory Construction 581 (5th ed. 1992). The failure to enact legislation cannot be associated with any particular legislative initiative or proposal, and, as Justice Scalia has pointed out, it is "impossible to assert with any degree of assurance that. . . [legislative] failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice." Johnson v. Transportation Agency, 480 U.S. 616, 671-72, 107 S.Ct. 1442, 1472 (1987) (Scalia, J., dissenting).
The General Assembly's decision to limit the availability of the alternative "acknowledgment of paternity" procedure in Tenn. Code Ann. § 36-2-202(b) to children "born to an unmarried woman" does not necessarily indicate that it intended the phrase "child born out of lawful wedlock" in Tenn. Code Ann. § 36-2-202(a) to mean the same thing. It is equally, if not more, plausible that the General Assembly wished to limit the availability of the alternative procedure to only unmarried women in order to protect the interests of a married woman's husband.
IV.
Tennessee's legitimation statutes must be understood and applied not just in light of their historical background but also in light of contemporary circumstances. This court overlooked the common meaning of the phrase "child not born in lawful wedlock" when it decided Cunningham v. Golden in 1983 and thereby mistakenly restricted the class of persons permitted to file legitimation actions. As a result, the court placed a cloud over the constitutionality of Tenn. Code Ann. § 36-2-202(a) and also placed the statute in conflict with other statutes dealing with the rights of children whose biological parents are not married to each other. Because the consequences of continuing to follow the erroneous construction of Tenn. Code Ann. § 36-2-202(a) far outweigh the benefits of correcting our mistake, I will not hesitate to reinterpret Tenn. Code Ann. § 36-2-202(a).
A.
Statutory construction is essentially a judicial function. Worley v. Weigels, Inc., 919 S.W.2d 589, 592 (Tenn. 1996); Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994). It refers to the process by which the courts ascertain and then give the fullest possible effect to a statute's purpose. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995); Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). When called upon to construe a statute, the courts must take care not to unduly restrict the statute's application or conversely to expand its coverage beyond its intended scope. Kultura, Inc. v. Southern Leasing Corp., 923 S.W.2d 536, 539 (Tenn. 1996); In re Storey (Storey v. Bradford Furniture Co.), 910 S.W.2d 857, 859 (Tenn. 1995); In re Conservatorship of Clayton (Salvatore v. Clayton), 914 S.W.2d 84, 90 (Tenn.Ct.App. 1995).
The search for a statute's purpose necessarily begins with the words of the statute itself. Spencer v. Towson Moving Storage, Inc., 922 S.W.2d 508, 510 (Tenn. 1996); Winter v. Smith, 914 S.W.2d 527, 538 (Tenn.Ct.App. 1995). Unless the legislature signals otherwise, we assign these words their natural and ordinary meaning. State ex rel. Metro. Gov't v. Spicewood Creek Watershed Dist., 848 S.W.2d 60, 62 (Tenn. 1993). We consider not only the immediate context in which the words appear, McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn. 1992), but also the statute's overall purposes and established public policy. State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995) (consideration of the statute's overall purposes); Cronin v. Howe, 906 S.W.2d at 912 (consideration of public policy).
When possible, we must avoid constructions that render any part of a statute inoperative or void, Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975); Mangrum v. Owens, 917 S.W.2d 244, 246 (Tenn.Ct.App. 1995), or that place one statute in conflict with another. State ex rel. Boone v. Sundquist, 884 S.W.2d 438, 444 (Tenn. 1994); State ex rel. Metro. Gov't v. Spicewood Creek Watershed Dist., 848 S.W.2d at 62. Thus, the meaning of an ambiguous word or phrase in one statute may be discovered by considering the language and purpose of related statutes. State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995); Roseman v. Roseman, 890 S.W.2d at 29; Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn. 1994).
The courts should construe unambiguous statutes according to their plain meaning. Atchley v. Life Care Ctr., 906 S.W.2d 428, 431 (Tenn. 1995); Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 3 (Tenn. 1986). When, however, a statute is ambiguous or unclear, we may resort to the various rules of statutory construction to ascertain its purpose and the proper scope of its application. No single rule of construction is preferable to the others, and thus we should bring all applicable rules to bear in order to ascertain a statute's meaning and application. O.H. May Co. v. Anderson, 156 Tenn. 216, 219-20, 300 S.W. 12, 14 (1927); Davenport v. Chrysler Credit Corp., 818 S.W.2d 23, 27 (Tenn.Ct.App. 1991).
B.
Tenn. Code Ann. § 36-2-202(a) must be construed in light of its contemporary milieu. The law and society's attitude toward children born to women who are not married to the child's biological father have changed significantly since the late eighteenth century when Lord Mansfield decided Goodright v. Moss. We do a disservice not only to the parties in this case but also to the law itself if we permit our understanding and application of old statutes to be frozen in a pattern imposed by an earlier generation's prejudices and limitations.
The presumption that a child born to a married woman was the offspring of the mother's husband has been traced to Goodright v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (1777), and is commonly referred to as "Lord Mansfield's Rule." It stems from Lord Mansfield's statement that "the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage." Goodright v. Moss, 2 Cowp. at 592, 98 Eng. Rep. at 1257. Despite its widespread acceptance, Lord Mansfield's Rule has not escaped serious academic criticism. See 7 John Henry Wigmore, Evidence in Trials at Common Law §§ 2063, 2064 (James H. Chadbourn rev. 1978).
One-third of all children born in Tennessee today are born to unmarried mothers. The legal position of these children is markedly different than that of their counterparts two hundred years ago. They have a statutory right to inherit from their biological mother and father. They have a statutory right to receive support from both of their biological parents. In addition, they have a constitutional right not to be discriminated against because of the marital status of their biological parents.
Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States: 1995, at 77 (115th ed. 1995) (statistics demonstrating that three of every ten live births in 1992 were to an unmarried woman). The nonmarital birth rate in Tennessee has increased 252% during the past thirty years. In 1994, 33.4% of the children born in Tennessee were born to unmarried mothers. Tennessee Comm'n on Children Youth, Kids Count: The State of the Child in Tennessee, 1995, at 8 (1996).
Tenn. Code Ann. § 31-2-105 (Supp. 1996).
Tenn. Code Ann. § 34-11-102(a) (Supp. 1995); Tenn. Code Ann. § 36-2-102 (1991); Tenn. Code Ann. § 36-2-203 (1991).
Pickett v. Brown, 462 U.S. 1, 18, 103 S.Ct. 2199, 2209 (1983) (statute of limitations for seeking child support from a biological father); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875 (1973) (right to child support from a biological parent); Weber v. Aetna Casualty Sur. Co., 406 U.S. 164, 175-76, 92 S.Ct. 1400, 1406-07 (1972) (right to receive worker's compensation benefits).
Along with these improvements in the legal status of children whose biological parents are not married to each other, the Tennessee Supreme Court has redefined and expanded the parental rights of biological parents. Like many of its counterparts in other states, the Court has held unequivocally that parents, notwithstanding their marital status, possess fundamental rights with regard to their biological children. Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994). Thus, in contemporary society, the legal rights and status of children and their parents do not necessarily depend upon whether the parents were married to each other when their child or children were born.
The reasoning of these decisions indicate that the Tennessee Supreme Court has concluded that the Constitution of Tennessee provides broader protection for the rights of biological parents than does the United States Constitution. Thus, the Tennessee Supreme Court has not followed Justice Scalia's plurality opinion that unmarried fathers do not have a constitutionally protected liberty interest in their relationship with their biological children born to married mothers. See Michael H. v. Gerald D., 491 U.S. 110, 113-32, 109 S.Ct. 2333, 2337-46 (1989).
Until relatively recent times, Lord Mansfield's Rule provided a convenient substitute for either unavailable or unreliable proof of parentage. In the place of inherently suspect testimony from the child's mother or father, the rule confirmed that legitimacy of all children should be a societal norm. This rebuttable presumption of legitimacy for children born to a married woman placed the burden on those desiring to prove otherwise to rebut the presumption with clear, strong, and convincing proof. Gower v. State, 155 Tenn. 138, 144, 290 S.W. 978, 980 (1927); Jackson v. Thornton, 133 Tenn. 36, 39, 179 S.W. 384, 384 (1915); Frazier v. McFerren, 55 Tenn. App. 431, 440, 402 S.W.2d 467, 472 (1964); State ex rel. Hardesty v. Sparks, 28 Tenn. App. 329, 335, 190 S.W.2d 302, 304-05 (1945). This presumption is no longer required because of the widespread availability of highly reliable scientific tests that can prove or disprove parentage. See Tenn. Code Ann. §§ 24-7-112, -117 (Supp. 1996) (applications of blood, genetic, and DNA testing).
Several more recent intermediate appellate court decisions have characterized a related presumption as conclusive. See Rooker v. Rimer, 776 S.W.2d 124, 128 (Tenn. Ct. App. 1989); Tyler v. Tyler, 671 S.W.2d 492, 494 (Tenn. Ct. App. 1984). While the presumption of legitimacy has been viewed as one of the strongest known to the law, Anderson v. Anderson, 52 Tenn. App. 241, 260, 372 S.W.2d 452, 461 (1962), the Tennessee Supreme Court has never held that it is conclusive. See Pressley v. Pressley, App. No. 03-A-01-9311-CV-00400, slip op. at 4 (Tenn.Ct.App. Feb. 10, 1995) (Susano, J., concurring) (No Tenn. R. App. P. 11 application filed).
C.
The phrase "child not born in lawful wedlock" and similar phrases have a long history of judicial construction. Only the Cunningham v. Golden decision and the few Tennessee cases following it have limited its meaning to children born to an unmarried mother. Virtually every other court considering the question has held that the term "wedlock" in these phrases refers to the marital status of the child's biological parents with regard to each other. Thus, phrases such as "child born out of lawful wedlock" have been consistently construed to include not only children born to unmarried women but also children whose biological parents are not married to each other.
K.S. v. R.S., No. 55S04-9602-CV-00162, 1996 WL 420400, at *3 (Ind. July 29, 1996); Pursley v. Hisch, 85 N.E.2d 270, 271 (Ind. App. Ct. 1949); Smith v. Robbins, 283 N.W.2d 725, 729 (Mich.Ct.App. 1979); In re Legitimation of Locklear, 334 S.E.2d 46, 50-51 (N.C. 1985); State v. Coliton, 17 N.W.2d 546, 551 (N.D. 1945); In re Estate of Marriott, 515 P.2d 571, 573 (Okla. 1973); see also Unif. Act on Paternity § 1, 9B U.L.A. 350 (1987); but see Weidenbacher v. Duclos, 661 A.2d 988, 992 n. 11 (Conn. 1995) (declining to decide the meaning of "child born out of wedlock").
Leonard v. Leonard, 360 So.2d 710, 712 (Ala. 1978); Estey v. Mawdsley, 217 A.2d 493, 494 (Conn. Cir. Ct. 1966); Wilkins v. Georgia Dep't of Human Resources, 337 S.E.2d 20, 22 (Ga. 1985); Johnson v. Studley-Preston, 812 P.2d 1216, 1219 (Idaho 1991); K.S. v. R.S., supra note 21, at *3; Pursley v. Hisch, 85 N.E.2d at 271; Bartlett v. Commonwealth, 705 S.W.2d 470, 472 (Ky. 1986); Spielmaker v. Lee, 517 N.W.2d 558, 559 (Mich.Ct.App. 1994); Girard v. Wagenmaker, 434 N.W.2d 227, 228 (Mich.Ct.App. 1988), rev'd on other grounds, 470 N.W.2d 372 (1991); State ex rel. Madsen v. Soldier, No. A-94-747, 1996 WL 169877, at *3 (Neb. Ct. App. April 9, 1996); Commissioner of Pub. Welfare v. Koehler, 30 N.E.2d 587, 589 (N.Y. 1940); Batcheldor v. Boyd, 423 S.E.2d 810, 813 (N.C. Ct. App. 1992); State v. Coliton, 17 N.W.2d at 551.
In addition to being out of step with the prevailing understanding of the meaning of the phrase, the construction of "child born out of lawful wedlock" in Cunningham v. Golden places Tenn. Code Ann. § 36-2-202 on a collision course with other statutes defining the rights and responsibilities of unmarried biological parents and their children. Our legitimation statutes, paternity statutes, and statute pertaining to intestate succession are all intended to remove the common-law disabilities of children born to parents who are not married to each other. These statutes define the obligation of biological parents to support their children and also define the rights of these children to support and to inherit from both biological parents. Notwithstanding earlier decisions drawing nice distinctions between the "purposes" of these statutes, they should be construed in pari materia in order to assure that their operation and effect is uniform and consistent.
Tenn. Code Ann. §§ 36-2-201, -209 (1991 Supp. 1995).
Tenn. Code Ann. §§ 36-2-101, -115 (1991 Supp. 1995).
Tenn. Code Ann. § 31-2-105.
In re Estate of Armstrong (Adams v. Manis), 859 S.W.2d 323, 327 (Tenn.Ct.App. 1993) (finding no connection between the legitimation and intestate succession statutes); Matthews v. White, App. No. 02-A-01-9210-JV-00295, slip op. at 4-5 (Tenn.Ct.App. July 1, 1993), perm. app. denied (Tenn. Nov. 1, 1993) (the purpose of the paternity statutes differs from the purpose of the legitimation statutes).
The paternity statutes apply to children "born out of lawful wedlock." Tenn. Code Ann. § 36-2-101(1). We have repeatedly construed this phrase in the context of paternity proceedings to include children who are born to an unmarried woman and to children who are born to a married woman whose husband is not the child's biological father. Tindle v. Gay, 891 S.W.2d 617, 618 (Tenn.Ct.App. 1994); Frazier v. McFerren, 55 Tenn. App. at 438, 402 S.W.2d at 471. Likewise, we have construed the statute giving persons "born out of wedlock" the right to inherit from their biological parents in a similar fashion. In re Estate of Armstrong (Adams v. Manis), 859 S.W.2d at 327.
See also Webb v. Dunlap, App. No. 03-A-01-9406-JV-00211, slip op. at 4-5 (Tenn.Ct.App. Dec. 6, 1994) (No Tenn. R. App. P. 11 application filed); Matthews v. White, supra note 26, slip op. at 4; Bass v. Norman, C.A. No. 164, slip op. at 4-5 (Tenn.Ct.App. Dec. 29, 1989) (No Tenn. R. App. P. 11 application filed).
Construing Tenn. Code Ann. § 36-2-202(a) to apply to children whose mother is not married to their biological father is consistent with the Tennessee Supreme Court's recognition of the rights of biological parents who have taken positive steps to establish a relationship with their children. Nale v. Robertson, 871 S.W.2d at 678. While promoting consistency among our statutes, it also aligns Tennessee with approximately two-thirds of our sister states that give putative fathers the right to rebut the presumption that a child born to a married woman is the issue of the marriage. State ex rel. Roy Allen S. v. Stone, No. 23355, 1996 WL 328367, at *12 (W. Va. June 14, 1996); Weidenbacher v. Duclos, 661 A.2d at 999; Traci Dallas, Note, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum. L. Rev. 369, 373-74 (1988).
V.
The courts should avoid construing statutes in a way that renders them constitutionally suspect. State ex rel. Mynatt v. King, 137 Tenn. 17, 31, 191 S.W. 352, 355 (1917); Illinois Cent. R.R. v. Crider, 91 Tenn. 489, 506, 19 S.W. 618, 622 (1892). We should also avoid deciding constitutional issues unless required to do so. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); Watts v. Memphis Transit Management Co., 224 Tenn. 721, 727, 462 S.W.2d 495, 498 (1971); Stokes v. Leung, 651 S.W.2d 704, 711 (Tenn.Ct.App. 1982). My construction furthers both goals.
In addition to creating disharmony between Tenn. Code Ann. § 36-2-202(a) and Tenn. Code Ann. §§ 31-2-105 36-2-101(1), the majority's interpretation also places the statute on a collision course with the Due Process and Equal Protection Clauses of the Constitution of Tennessee. My construction of Tenn. Code Ann. § 36-2-202(a) avoids these constitutional infirmities. Accordingly, I do not join in the discussion of the constitutionality of Tenn. Code Ann. § 36-2-202(a) in Section IV of the majority's opinion. In my mind, Tenn. Code Ann. § 36-2-202(a), as construed by the majority, deprives putative biological fathers of a fundamental constitutional right without due process of law.
The courts should not permit legitimation proceedings to be used as a vindictive vehicle to disrupt families. Putative fathers seeking the benefits and obligations that flow from parentage must act promptly and in good faith to demonstrate their desire to establish a parental relationship with their biological children. In this case, Mr. Evans's prompt actions, coupled with Ms. Steelman's concessions about the child's parentage, indicate that Mr. Evans is not seeking to disrupt an intact family for an improper reason. Accordingly, I would find that he has standing to pursue this legitimation proceeding.
____________________________ WILLIAM C. KOCH, JR., JUDGE