A, Matter of

Decision Date15 May 1987
Docket NumberNo. 1-196-86-1097,1-196-86-1097
Citation735 S.W.2d 232
PartiesIn the Matter of: 'A' George Edward CLINE, Petitioner/Appellant, v. Juanzel DREW and James Henry Drew, Jr., Defendants/Appellees.
CourtTennessee Court of Appeals

Brenda McGee, Knoxville, for petitioner/appellant.

Robert R. Simpson, Knoxville, for appellees Tipton, Eshbaugh and Simpson.

W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, Wayne E. Uhl and Debra K. Inglis, Asst. Attys. Gen., for the State, intervenor.

Stephanie L. Ganucheau, Knoxville, guardian ad litem.

TOMLIN, Presiding Judge, Western Section.

This appeal calls upon us to decide whether a man who claims to be the father of a child has standing to bring a paternity action in which he seeks to be declared the father, along with visitation rights and name change of a child born during the marriage of the natural mother to a man previously declared by the trial court to be the father of the child. Following the filing of a paternity petition by plaintiff in the Juvenile Court of Knox County pursuant to T.C.A. Sec. 36-2-103, the case was transferred to the circuit court of that county for trial. The trial court dismissed plaintiff's petition on the ground that he lacked standing to bring such an action. On appeal plaintiff contends that the trial court erred in denying him standing, and that such denial deprived him of the protections afforded by the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and Article I Section 8 and Article XI Section 8 of the Tennessee Constitution. We find no error and affirm.

Inasmuch as plaintiff's complaint was dismissed pursuant to a Rule 12.02, T.R.C.P. motion, we are required to accept the allegations of his complaint as true and to construe those allegations liberally in his favor. See Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690 (Tenn.1984). Plaintiff's complaint states that he began having an intimate relationship with defendant Mrs. Drew, then Ms. Hall, in 1976, and that they continued seeing each other until the fall of 1980. At the time the affair terminated plaintiff was not aware that Ms. Hall was pregnant. In October, 1980 Ms. Hall married the co-defendant James H. Drew, Jr. A daughter, whom we shall call "A," was born to Mrs. Drew in January, 1981.

Upon learning of "A" 's birth, plaintiff attempted to make contact with Mrs. Drew. He was allowed to see "A" at the residence of the maternal grandmother on a few occasions. From time to time he gave the grandmother money for "A" 's benefit and occasionally purchased gifts for her. Plaintiff was unsuccessful in attempting to visit "A" regularly. Some three years later in June, 1984, plaintiff filed a pro se petition seeking legitimation in the Knox County Juvenile Court, identifying the daughter as "S," the name by which he knew her. At a hearing on plaintiff's legitimation petition Mrs. Drew did not inform the court that she was married to James Drew when her daughter was born, nor did she reveal to the court the child's legal name. That court ordered blood tests but they were never carried out. A month later Mrs. Drew filed a petition to have her husband, James Drew, declared to be the father of her child. In that petition the child's true name was used. Inasmuch as Ms. Hall and Mr. Drew were already married when the child was born, the court found that the child was already legitimate. At the time that plaintiff's legitimation petition came on to be heard the court realized that the child named in that petition as well as in the action of Mrs. Drew was the same, and plaintiff's petition was dismissed.

Approximately a year later, in October, 1985, plaintiff filed an amended complaint which contained the allegations heretofore recited, seeking to establish his paternity of "A." The juvenile court appointed a guardian ad litem at plaintiff's request. As already noted, following the transfer of this case to circuit court, the plaintiff's suit was dismissed for lack of standing. Thereafter, counsel for both parties advised the trial court that the dismissal of plaintiff's suit potentially implicated the constitutionality of T.C.A. Sec. 36-2-101, et seq. The court directed plaintiff's counsel to notify the Attorney General that the constitutionality of a portion of the statute had been drawn into question. Notice was duly given.

I. STANDING.

The threshold issue to be considered is whether the trial court was correct in ruling that plaintiff as the putative father lacked standing to assert his claim under the Tennessee Paternity Statute.

T.C.A. Sec. 36-2-103 reads as follows:

Petition to establish paternity--Time of filing--Jurisdiction--Issuance of warrant.--(a)(1) A petition to establish paternity of a child, to change the name of the child if it is desired, and to compel the father to furnish support and education for the child in accordance with this part may be filed by the mother, or her personal representative, or, if the child is likely to become a public charge by the state department of human services or by any person.

(2) The petition may be filed in the county where the mother or child resides or is found or in the county where the putative father resides or is found. The fact that the child was born outside this state shall not be a bar to filing a petition against the putative father.

(3) After the death of the mother or in case of her disability the petition may be filed by the child acting through a guardian or next friend.

(b) Proceedings to establish the paternity of a child may be instituted before or after the birth of the child and until one (1) year beyond the child's age of majority. These proceedings shall not affect the relationship of parent and child as established in Sec. 31-2-105.

(c) For the purpose of this part, original and exclusive jurisdiction is conferred upon the juvenile court.

(d) The petition shall be verified by affidavit and shall charge the person named as defendant with being the father of the child and shall demand that he be brought before the court to answer the charge.

(e) The court shall issue a warrant for the apprehension of the defendant, directed to any officer in the state authorized to execute warrants, commanding him without delay to apprehend the alleged father and bring him before the court, for the purpose of having an adjudication as to the paternity of the child, and such warrant may be issued to any county of this state. But in the discretion of the court, a summons may be issued as in civil cases.

At first blush, one reading plaintiff's brief and argument might conclude that plaintiff brings this action for the singular purpose of having himself declared the putative father of "A" so that he might guarantee proper support for her in the future. However, after reading the prayer of his complaint delineating the relief sought, a different picture is perceived. Plaintiff not only seeks to be declared the natural father of "A" and to furnish support for her, but in addition, he seeks "reasonable visitation rights," the setting aside of the order declaring defendant James Drew to be the father of "A", and that "A" 's last name be changed to "Cline." As stated in the statute and held by this Court, the purpose of the paternity statute is to compel the father to furnish support and education for the child. Frazier v. McFerren, 55 Tenn.App. 431, 402 S.W.2d 467, 471 (1964).

Those who might be proper plaintiffs are described in the statute as "the mother, or her personal representative, or, if the child is likely to become a public charge by the state department of human services or by any person." Plaintiff contends that the phrase "any person" is a catch-all phrase and includes the putative father. To contend that this was the legislative intent in drafting the statute defies logic. While the phrase "any person" standing alone might be considered to be all encompassing, when a court engages in statutory construction it seeks to give effect to the intent or purpose of the legislature. It cannot lift one word from the statute and attempt to construe it alone without reference to the statute as a whole. See Westinghouse Electric Corp. v. King, 678 S.W.2d 19 (Tenn.1984). When this statute is considered in its entirety it becomes apparent that to include the putative father as "any person" would be contrary to legislative intent.

T.C.A. Sec. 36-2-103 speaks in terms of compelling the father to furnish support. Sub-section (2) of section (a) states that the fact a child is born outside the state "shall not be a bar to filing a petition against the putative father." Section (b)(1) speaks in terms of compelling "the father" to furnish support. Section (d) of the statute states that the petition "shall charge the person named as defendant with being the father of the child and shall demand that he be brought before the court...." Lastly, section (e) reads in part: "The court shall issue a warrant for the apprehension of the defendant, directed to any officer in the state authorized to execute warrants, commanding him [the officer] without delay to apprehend the alleged father and bring him before the court...."

Without exception, this language clearly indicates that the statute contemplates that the defendant in an action to establish paternity will be the putative father. If the term "any person" were to be construed to include the putative father, this would in effect allow the putative father to bring an action against himself. Clearly, this is not what the legislature had in mind.

As already noted, the purpose of the statute is to provide a means to compel the father to support the child. It is not the purpose of this statute to create parental rights between parent and child. That is the purpose of the legitimation statutes. As noted in Queen v....

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