FILED

January 29, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

PATRICIA SCOTT (CHAPPELL) ) GREENE COUNTY

 ) 03A01-9708-CH-00305

Petitioner-Appellant )

)

)

v . ) HON. THOMAS R. FRIERSON, II,

) CHANCELLOR

 )

RICHARD SCOTT, D.C. SCOTT and )

wife, LEONA SCOTT )

 )

Respondents-Appellees ) AFFIRMED AND REMANDED

J. RONNIE GREER OF GREENEVILLE FOR APPELLANT

KENNETH N. BAILEY, JR., OF GREENEVILLE FOR APPELLEES

O P I N I O N

 Goddard, P.J. 

This is a child custody case filed by Patricia Scott

(Chappell), mother of a mentally retarded 20-year old daughter,

seeking--pursuant to T.C.A. 36-6-101--to modify the Court’s prior

child custody award. The Trial Court was of the opinion that

because the daughter was no longer a minor the foregoing code

section was inapplicable. Ms. Chappell’s appeal questions this

determination.
 

1

Rebecca has speech and language disabilities. Her current academic

skills are on a first grade level in reading and spelling and below first

grade in mathematics. She has different degrees of deficits in communication

skills and daily living skills. Paula J. Smith, school psychologist,

testified at the conservatorship hearing that Rebecca has an IQ of less than

70 and has moderate difficulties with fine motor coordination. In Ms. Smith’s

professional opinion, Rebecca was in need of adult supervision for the

provision of basic needs and emotional nurturing, arrangement for medical care

and assistance with financial affairs.

2

For example, at the time of the hearing, Rebecca was manager of the

girls’ basketball team at Chuckey-Doak High School.

2

I. FACTS

Patricia Scott Chappell and Richard Scott are the

parents of Rebecca Ann Scott, age 20. The Mother and Father were

divorced in 1978, when Rebecca was 1-1/2 years old. The paternal

grandparents, Mr. and Mrs. D. C. Scott, were given custody of

Rebecca, who has lived with them since then.

Rebecca has been classified as mentally retarded since

she entered kindergarten. Her intellectual abilities are within

the moderate range of mental retardation. 1 Rebecca is eligible

for special educational services for students with disabilities

until she becomes 21. Her Grandparents have actively encouraged

Rebecca to be involved in social activities through the school

system and in various Special Olympics programs. 2

In 1982 and 1986, Mother petitioned the Greene County

Chancery Court to modify the custody arrangement seeking custody

of Rebecca. On both occasions, the Trial Court ordered that the

paternal grandparents should retain custody of Rebecca. This

most recent petition was filed in February 1997. Mother again
3

sought the care, custody and control of Rebecca. At the time of

the hearing on this petition, Rebecca was 20 years old. 

Father and Grandparents responded to the petition by

moving the Court to dismiss the petition on the basis that the

petition failed to state a claim upon which relief could be

granted in that Rebecca was a legal adult. Therefore, this was

not a child custody matter since the child custody statutes only

applied to minors. 

Shortly after Mother filed the petition to modify

custody, Father and Grandparents filed a petition seeking to have

the Grandparents appointed as co-conservators of the person and

property of Rebecca. 

At the hearing, the court sustained the motion to

dismiss the child custody petition and specifically “determined

that in accordance with T.C.A. 36-6-101, a petition for custody

is the inappropriate avenue through which to address the present,

special needs of Rebecca. Instead, the proper proceeding is an

action for conservatorship and accordingly, the Court shall

adjudicate this matter in accordance with T.C.A. 34-11-101, et

seq.”

After the dismissal of Mother’s petition to modify

custody, the parties stipulated that Rebecca was in need of a
4

conservator over both her person and her estate. The

conservatorship action then proceeded to trial. The trial court

held that Rebecca’s manifest best interests would be served by

appointing Grandparents as her co-conservators.

Mother thereafter filed this appeal.

II. ISSUE

Mother presents the following issue for our review.

Did the trial court err in dismissing appellant’s

petition seeking custody of her disabled daughter, age

20, because the daughter is no longer a minor?

Mother seeks to have the decision of the trial court

dismissing the petition to modify custody reversed and to have

the case remanded to the trial court for a hearing on the

petition to modify custody.

III. LAW AND DISCUSSION

Where, as here, there is no conflict in the evidence as

to any material fact, the question on appeal is one of law, and

the scope of review is de novo with no presumption of correctness

accompanying the chancellor's conclusions of law. Union Carbide

Corp. v. Huddleston , 854 S.W.2d 87 (Tenn.1993).

Furthermore, construction of a statute is a question of

law which we review de novo , with no presumption of correctness.
5

Roseman v. Roseman , 890 S.W.2d 27 (Tenn.1994). In construing

statutes, our role is to ascertain and give effect to legislative

intent. Wilson v. Johnson County , 879 S.W.2d 807(Tenn.1994). The

Legislative intent is to be ascertained whenever possible from

the natural and ordinary meaning of the language used, without

forced or subtle construction that would limit or extend the

meaning of the language. Carson Creek Vacation Resorts, Inc. v.

Department of Revenue , 865 S.W.2d 1, 2 (Tenn.1993). We will

consider the issue in this appeal with these standards in mind. 

Mother postulates that under T.C.A. 36-6-101(b), the

Greene County Chancery Court retained the authority to modify or

alter the prior decree and orders of the court in regard to

custody of Rebecca even though she is over 18 years of age

because she is disabled. T.C.A. 36-6-101(b) reads as follows:

Notwithstanding any provision of this section to

the contrary, the party, or parties, or other person

awarded custody and control of such child or children

shall be entitled to enforce the provisions of the

court's decree concerning the suitable support of such

child or children in the appropriate court of any

county in this state in which such child or children

reside; provided, that such court shall have divorce

jurisdiction, if service of process is effectuated upon

the obligor within this state. Jurisdiction to modify

or alter such decree shall remain in the exclusive

control of the court which issued such decree.
3

T.C.A. 36-1-102 as applicable here reads as follows:

“As used in this part, unless the context otherwise requires:. . .

(7) "Adult" means any person who is eighteen (18) years of age or older. An

adult may be adopted as provided in this part; . . .

(11) "Child" or "children" means any person or persons under eighteen (18)

years of age;. . . “

4

See inter alia T.C.A. 1-3-105 , 6-54-404, 29-13-102(12), 29-13-301(6),

29-13-308, 29-31-101, 29-31-105, 33-5-101, 34-11-101(12), 34-12-106, 36-3-106,

37-10-101, 37-10-302, 39-11-106, 39-15-407, 39-15-413, 39-17-901, 39-17-902,

39-17-1002, 50-5-102, 55-50-312, 68-14-601(5). 

6

Furthermore, Mother claims that the definitions of

“adult” and “child”, which are contained in T.C.A. 36-1-102 3

 are

applicable only to “Part 1" and not to the other parts of Title

36, such as “Part 6.” We disagree. Throughout the Tennessee

Code, with only two exceptions, we have found that “minor” means

any person who has not attained the age of 18 years. 4 18 Tenn.

Juris., Minors, § 2. The two exceptions are T.C.A. 1-3-113(b),

where the age of majority for purposes of purchasing, consuming

or possessing alcoholic beverage is 21 years and T.C.A. 35-7-202,

which is the Tennessee Uniform Transfers to Minors Act.

Furthermore, T.C.A. 1-3-105, sets forth the definition

of terms used in the Tennessee Code as follows:

As used in this code, unless the context otherwise

requires: 

(1) "Age of majority" means eighteen (18) years of age

or older; except that when purchasing, consuming or

possessing alcoholic beverages, wine or beer as those terms

are defined in title 57, "age of majority" means twenty-one

(21) years of age. "Minor" means any person who has not

attained eighteen (18) years of age; except that where used

in title 57 with respect to purchasing, consuming or

possessing alcoholic beverages, wine or beer, "minor" means

any person who has not attained twenty-one (21) years of

age. This subdivision shall not be construed as prohibiting

any person eighteen (18) years of age or older from selling,
5

Our court has reaffirmed the Sayne holding in Smith v. Smith , an

unreported opinion of this Court, filed in Knoxville on March 31, 1995.

7

transporting, possessing or dispensing alcoholic beverages,

wine or beer in the course of employment; 

(2) "Code" includes the Tennessee Code and all

amendments and revisions thereof and all additions and

supplements thereto. . . .

Whether or not the definitions set forth in “Part 1"

are applicable to “Part 2", the definitions contained in T.C.A.

1-3-105 are applicable to the issue at hand.

While Mother admits that she has been unable to find

any cases directly answering the issue she raises in this appeal,

she contends that Sayne v. Sayne , 39 Tenn. App. 422, 284 S.W.2d

309 (1955), and its progeny, lend support to her position. 

Sayne 5

 adopted a rule requiring a parent to support a child

beyond his or her minority. Mother argues that the reasoning of

Sayne , is equally applicable to petitions to modify custody of a

disabled child who has reached the age of majority but continues

under a disability that existed prior to reaching the age of

majority. Sayne does not, however, address the issue of the

custody of an adult, who is incapacitated.

Emancipation may occur by operation of law for the

Legislature possesses the power to fix the age at which the

disabilities of infancy are removed. Campbell v. Bon Air Coal &

Iron Corp. , 151 Tenn. 132, 268 S.W. 377 (1925). This occurred in

Tennessee when the Legislature enacted the Legal Responsibility
6

It should be noted that “ Sayne ” was decided in 1955 prior to the

enactment of the Legal Responsibility Act in 1971.

7

 T.C.A. 34-11-121.

a) The court has broad discretion to require additional actions not specified

in the provisions of this chapter, and chapters 12 and 13 of this title as the

court deems in the best interests of the minor or disabled person and the

minor's or disabled person's property. The court also has discretion to waive

requirements specified in the provisions of this chapter, and chapters 12 and

13 of this title if the court finds it is in the best interests of the minor

or disabled person to waive such requirements, particularly in those instances

where strict compliance would be too costly or place an undue burden on the

fiduciary or the minor or the disabled person.

8

Act, Chapter 162, Public Acts of 1971. Garey v. Garey , 482

S.W.2d 133 (Tenn.1972). The Legislature did enact T.C.A. 34-1-

101(b) to extend the period of support in certain instances. 

This, however, was repealed by Acts 1992, ch. 794, § 1, which

became effective on January 1, 1993. 6

On the other hand, the appellees, Father and

Grandparents, contend that the Chancellor was correct in

dismissing the child custody petition and acting upon the

conservatorship petition, as set forth at T.C.A. 34-11-101, e t

seq . We agree.

T.C.A. 34-11-121 7

 conveys plenary powers to the court

in conservatorship actions. Moreover, the state has the

constitutional power to act for incompetents and for partial

incompetents to the extent of the partial incompetency. State,

Dept. of Human Services. v. Northern , 563 S.W.2d 197 (Tenn.

App.1978), appeal dismissed, 436 U.S. 923, 98 S. Ct. 2816 (1978). 
9

As pertinent in this matter, T.C.A. 34-11-101 contains

the following definitions:

As used in this chapter and chapters 12 and 13 of

this title, unless the context otherwise requires: 

. . . .

(7) "Disabled person" means any person eighteen

(18) years of age or older determined by the court to

be in need of partial or full supervision, protection

and assistance by reason of mental illness, physical

illness or injury, developmental disability or other

mental or physical incapacity; 

. . . .

(12) "Minor" means any person who has not attained

eighteen (18) years of age and who has not otherwise

been emancipated; . . ..

It is apparent from the record before us that Rebecca

meets the definition of a disabled person contained in T.C.A. 34-

11-101. It is also clear that Mother’s argument fails in all

respects and that the Chancellor correctly dismissed the custody

petition and heard the conservatorship petition.

For the reasons stated above, the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against Mother and her

surety. 

_______________________________

Houston M. Goddard, P.J. 
1 0

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Don T. McMurray, J.