1Mr. 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.

FILED

October 2, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

MICHAEL SCOTT EVANS, )

)

Plaintiff/Appellant, )

) Davidson Juvenile

) No. 9419-13267

VS. )

) Appeal No.

) 01-A-01-9511-JV-00508

KAREN MARIE BISSON STEELMAN, )

)

Defendant/Appellee. )

DISSENTING OPINION

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.1

 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. 
-2-

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. 
-3-

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
2

2 Roscoe Pound, Jurisprudence 166 (1959).

3

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). 

4Dean 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). 

-4-

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 decisions2

 and also enable the bar and the

public to predict how the courts will decide future cases.3 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).

Judicial decisions are shaped not only by legal principles and doctrines but

also by the decision-making techniques used to develop and apply them.4 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). 
5

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”). 

6Rigid 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.

-5-

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 circumstancesrequire.

If they cannot distinguish or sidestep a prior decision,

5

 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.6 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.

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
-6-

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.
7The 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).

8

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.

-7-

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 decision7 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).8

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
9The 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.”

10Tenn. 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.

-8-

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 4.9 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, § 7.10 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 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 offspring not born in wedlock: Provided, said applicant
11Compare 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.

-9-

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).11

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)).
12Act of Apr. 21, 1994, ch. 988, § 6, 1994 Tenn. Pub. Acts 1016, 1019.

13A 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).

14The 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

(continued...)

-10-

The General Assembly amended the “acknowledgment of paternity”

procedure in 1994.12 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).13

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,14
14(...continued)

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.

-11-

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.

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
-12-

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
15The 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). 

16Bureau 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). 

17Tenn. Code Ann. § 31-2-105 (Supp. 1996).

18Tenn. Code Ann. § 34-11-102(a) (Supp. 1995); Tenn. Code Ann. § 36-2-102 (1991);

Tenn. Code Ann. § 36-2-203 (1991).

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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.

15 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.

One-third of all children born in Tennessee today are born to unmarried

mothers.16 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.17 They have a statutory right to receive

support from both of their biological parents.18 In addition, they have a
19Pickett 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).

20The 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). 

21Several 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).

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constitutional right not to be discriminated against because of the marital status

of their biological parents.19

 

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).20 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.

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 legitimacy21 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,
22K.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”).

23Leonard 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.

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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). 

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.22 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.23 

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
24Tenn. Code Ann. §§ 36-2-201, -209 (1991 & Supp. 1995).

25Tenn. Code Ann. §§ 36-2-101, -115 (1991 & Supp. 1995).

26Tenn. Code Ann. § 31-2-105.

27In 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).

28See 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).

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with other statutes defining the rights and responsibilities of unmarried biological

parents and their children. Our legitimation statutes,24 paternity statutes,25 and

statute pertaining to intestate succession26 are all intended to remove the commonlaw 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,27 they should be construed in pari

materia in order to assure that their operation and effect is uniform and consistent.

 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 471.28

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. 

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
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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
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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