1

FILED

August 2, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

SHANNON REA ROBERTS, ) C/A NO. 01A01-9812-JV-00631

)

Plaintiff, )

)

v. )

)

)

) APPEAL AS OF RIGHT FROM THE

CREIG McLAUGHLIN, ) DAVIDSON COUNTY JUVENILE COURT

)

Defendant-Appellee, )

)

)

)

JANICE ROBERTS, )

)

Intervening Petitioner- ) HONORABLE BETTY ADAMS GREEN,

Appellant. ) JUDGE

For Appellant For Appellee

JOE F. GILLESPIE, JR. JAMES ROBIN McKINNEY, JR.

Joelton, Tennessee Nashville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
1

At the hearing below, a transcript of which is in the record,

McLaughlin also argued that the trial court did not have statutory

jurisdiction to entertain a petition for grandparents’ visitation. The trial

court did not address this argument, and it is not advanced as an issue before

us. Since this issue is not asserted on this appeal and has not been briefed

by the parties, we have ignored it. See Rule 13(b), T.R.A.P.

2

While the trial court’s order does not state a reason for dismissing

Grandmother’s petition, it is clear from the transcript of the hearing on the

motion to dismiss that the court’s decision was based upon McLaughlin’s main

argument, i.e., that the language of the statute does not apply to

grandparents’ visitation with a child born out of wedlock.

2

This case originated as a paternity action. Shannon

Rea Roberts (“Ms. Roberts”) sought to establish that Creig

McLaughlin (“McLaughlin”) was the father of her child, Dylan

Daniels Roberts (“Dylan”) (DOB: February 14, 1997). The part of

the case now before us concerns the petition to intervene filed

in that proceeding by Janice Roberts (“Grandmother”), who is the

mother of Shannon Rea Roberts and the grandmother of Dylan. In

her petition, Grandmother seeks court-ordered “reasonable

visitation rights” with Dylan. McLaughlin moved to dismiss

Grandmother’s petition, relying on Rule 12.02(6), Tenn.R.Civ.P.,

and asserting that the petition “fail[s] to state a claim upon

which relief can be granted.”1 Id. The trial court granted

McLaughlin’s motion, finding2 that T.C.A. § 36-6-306 (Supp. 1998)

does not authorize an award of grandparents’ visitation under the

undisputed material facts of this case. Grandmother appeals,

arguing that the trial court erred in dismissing her petition. 

We affirm.

In the paternity action, McLaughlin filed an answer in

which he admitted that he was Dylan’s father. Subsequently, the

trial court entered an order decreeing the child’s paternity. At

a later time, Ms. Roberts and McLaughlin were awarded Dylan’s

joint custody. The trial court also decreed that Dylan would
3

See Compiler’s notes to T.C.A. § 36-6-306 (Supp. 1998).

3

live with his mother and that McLaughlin would have certain

specified visitation rights. He was ordered to pay child

support.

While there are disputed facts in the record, we find

that those facts are not material to our resolution of this

appeal. The material facts are not in dispute: (1) Dylan is the

natural child of Ms. Roberts and McLaughlin; (2) Grandmother is

the maternal grandmother of Dylan; and (3) Ms. Roberts and

McLaughlin are not now, and never have been, married. While the

unwed relationship of Dylan’s parents does not appear on the face

of Grandmother’s petition, that fact is clear and undisputed from

material in the record “outside the pleading.” Rule 12.02,

Tenn.R.Civ.P. Hence we will treat the trial court’s order as one

for summary judgment, which we will review de novo with no

presumption of correctness. See Rules 12.02, Tenn.R.Civ.P., and

13(d), T.R.A.P. See also Hembree v. State, 925 S.W.2d 513, 515

(Tenn. 1996).

The statute upon which Grandmother must and does rely

is T.C.A. § 36-6-306 (Supp. 1998). That statute is a

codification of part of Chapter 503 of the Public Acts of 1997,

which Public Chapter became effective July 23, 1997.3 As

pertinent here, T.C.A. § 36-6-306 (Supp. 1998) provides as

follows:

(a) If:
4

(1) Either the father or mother of an

unmarried minor child is deceased;

(2) The child’s father and mother are

divorced or legally separated;

(3) The child’s father or mother has been

missing for not less than six (6) months; or

(4) The court of another state has ordered

grandparent visitation;

then, the parents of such deceased person or

the parents of either of such divorced or

separated persons or the parents of the

missing person may be granted reasonable

visitation rights to the child during its

minority by a court of competent jurisdiction

upon a finding that such visitation rights

are in the best interests of the minor child,

based on the factors in § 36-6-307(d)(2).

* * *

We must decide if this statute authorizes court-ordered

grandparents’ visitation under the circumstances of this case.

In interpreting a statute, we must “ascertain and give

effect to the intention and purpose of the legislature.” Tuggle

v. Allright Parking Systems, Inc., 922 S.W.2d 105, 107 (Tenn.

1996). We fulfill this obligation by giving effect to the

“natural and ordinary meaning of the language used [by the

legislature], without a forced or subtle construction that would

limit or extend the meaning of the language.” Id. If the

language is clear, our duty is likewise clear: we are to “obey

it.” Id. (quoting from Miller v. Childress, 21 Tenn. (2 Hum.)

320, 321-22 (1841)).

The statute under discussion, by omission, clearly

limits those situations in which a grandparent can attempt to
4

See, e.g., T.C.A. § 36-4-102 (Supp. 1998).

5

T.C.A. § 36-6-306(b)(1) (Supp. 1998) addresses the issue of

grandparents’ visitation when a relative or stepparent has adopted the child

with whom the petitioner seeks to visit. See also T.C.A. § 36-6-307 (Supp.

1998). 

5

establish his or her entitlement to court-ordered visitation with

a grandchild. For example, the statute makes no specific mention

of a grandparent’s right to visitation with respect to the child

of an intact two-parent family. This omission may well be in

response to the basic holding of the Supreme Court in the case of

Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In that case, the

High Court rebuffed grandparents’ efforts to compel livingtogether, married, fit parents to permit the grandparents to

visit with their grandchildren. Id. at 577. In any event, the

statute clearly does not apply to a grandparent’s petition to

compel visitation with the offspring of living-together, married

parents. From this it can be seen that the legislature did not

intend to include all grandparents within the ambit of the

statute’s reach.

As we read T.C.A. § 36-6-306, it does not apply broadly

to all grandparents of children born out of wedlock. As can be

seen, the statute does not address such children as a group. As

pertinent here, the statute is clearly limited to the following

situations: where one of the parents is deceased; where the

parents are divorced or legally separated;4 where one of the

parents “has been missing for not less than six (6) months;” and

where another state has ordered grandparent visitation.5 T.C.A.

§ 36-6-306(a)(Supp. 1998). None of these factual scenarios are

present in the instant case. In other words, Grandmother in this
6

Our resolution of the issue before us on appeal does not require us to

determine whether subsection (a)(1), (a)(3), and (a)(4) can, in an appropriate

case, apply to children born out of wedlock.

6

case cannot bring her factual pattern within T.C.A. § 36-6-

306(a)(1), (a)(2), (a)(3), or (a)(4).6

Grandmother urges us to find that the “legally

separated” concept embodied in T.C.A. § 36-6-306(a)(2) (Supp.

1998) applies to never-married parents who are not living

together. We find this to be a strained construction of the

language employed by the legislature and, hence, one that we

cannot adopt. Tuggle, 922 S.W.2d at 107. “Legally separated” is

a concept that has long been applied in the law to married

individuals who are living apart from one another. On the other

hand, the use of the word “legally” is particularly foreign to

the language normally employed when discussing never-married-toeach-other parties who do not live together. In fact, it seems

to us that the terminology “legally-separated, never-married

parties” is an oxymoron. We do not believe that the legislature

would utilize such nonsensical language to express what is

essentially a very simple and easily-expressed concept -- the

parents of children born out of wedlock who are not living

together. Had the legislature intended to cover such children,

it could have done so with ease and in unmistakable language. We

also believe that it is significant that the legislature, in

T.C.A. § 36-6-306(a)(2), chose to couple the “divorced” concept

with the “legally separated” concept. This is still further

evidence that the legislature intended to limit the ambit of

T.C.A. § 36-6-306(a)(2) (Supp. 1998) to the children of parents

who had been or were married.
7

The parties do not raise any constitutional issues on this appeal.

8

See Hawk v. Hawk, 855 S.W.2d 573, 576 n.1 (Tenn. 1993).

7

Having decided that the legislature did not intend for

the relevant statutory scheme to extend to Grandmother’s

situation in this case, our duty is clear -- we must obey the

statute. It is not for us to say whether the omission of

Grandmother’s factual pattern is or is not a wise one. The

establishment of public policy is not our prerogative;7 it is

primarily for the General Assembly. See Smith v. Gore, 728

S.W.2d 738, 746 (Tenn. 1987).

The right of a grandparent to compel visitation with

his or her grandchildren is purely statutory; no such right

existed at common law.8 Therefore, in the absence of a statute

whose language encompasses the facts of this case, Grandmother

cannot pursue her petition.

Since we have determined that the statute does not

apply to the factual scenario in this case, we pretermit any

discussion regarding whether or under what circumstances the

statutory scheme for grandparents’ visitation can be

constitutionally applied. Cf. Hawk v. Hawk, 855 S.W.2d 573

(Tenn. 1993); Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995);

Floyd v. McNeely, C/A No. 02A01-9408-CH-00187, 1995 WL 390954

(Tenn.App., W.S., filed July 5, 1995); and Ellison v. Ellison,

C/A No. 02A01-9803-CH-00054, 1998 WL 959670 (Tenn.App., W.S.,

filed November 4, 1998).
8

The appellee’s request for attorney’s fees for

frivolous appeal under T.C.A. § 27-1-122 is found to be without

merit and is hereby denied. The issue raised by the appellant

was fairly debatable. See Cole v. Dych, 535 S.W.2d 315, 323

(Tenn. 1976).

The judgment of the trial court is in all things

affirmed. Costs on appeal are taxed to the appellant. This case

is remanded to the trial court for such further proceedings, if

any, as may be required, consistent with this opinion, and for

collection of costs assessed below, all pursuant to applicable

law.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.