### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 10, 2000 Session STATE OF TENNESSEE, ex rel. JUDY LYNN STANLEY v. JOHN FRANK HOOPER
Appeal from the Juvenile Court for Dickson County No. 04-99-009-M A. Andrew Jackson, Judge

No. M2000-00916-COA-R3-CV - Filed January 11, 2001

This is an appeal from the trial court’s order finding the appellant to be the natural father of th e appellee’s minor child. The appellant contends that the trial court erroneously denied the appellant’s request for a jury trial and that the trial court erroneously excluded a n out of court statement identifying

the appellant’s b

rother as a poten

tial father. We af

firm the judgmen

t of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Juvenile Court

Affirmed and Remanded

B EN H. C A NTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R

. and W ILLI

AM B. C AIN , JJ., joined. David D. Wolfe, Dickson, Tennessee, for the appellant, John Frank Hooper.

Paul G. Summers, Attorney General and Reporter and Stuart Wilson-Patton, Assistant Attorney General, for the appellee, State of Tennessee, Department of Human Services, ex. rel., Judy Ly nn Sta nle y.
OPINION

This case involves a paternity dispute that initially arose in 1990 and was eventually appealed to this Court. This Court reversed the trial court’s judgment of paternity

finding that the conclusive presumption of paternity set out at Tenn. Code Ann. § 24-7-112(b)(2)(B) was unconstitutional and remanded the cause so that the appellant would have an opportunity to rebut the pres ump tion of paternit y. State v. Hooper , No. 01A01-9605-CV-00231, Dickson County (Tenn. Ct. App. filed February 28, 1997, at Nashville). Upon remand, Ms. Stanley non-suited the initial paternity petition in June of 1997 and refiled it in September of 1997.1 Although the pertinent facts are, for the most part, set out in our earlier opinion, we fi nd it necessary to recount such facts in this op inion.
-2- The evidence established that the appellee began a relationship wit

h the appellant in the mid1980's. 1 Over

the years the parties cohabitated intermittently , and in November of 1988, the appellee had a pre mat ure c hil d, f ath ered by th e app ell ant . Th e chi ld s urv ive d on ly si x days. The parties continued their relationship and, according to the appellee’s testimony, again begin living together. Although the appellant went to Texas in the early part of 1989, he returned to Tennessee in March of that year. The appellee testified that the p art ies continued to live together upon the appellant’s return and that she became pregnant in July of 1989 while she was living with the appellant. The appellee admits that she moved out of the appellant’s residence in August of 1989. In the latter part of 1989, the appellee wrote several letters to the appellant communicating that he was not the father of the child she was carrying. However, the appellee testified tha t these letters were written under threats to her

life made by the appellant’s mother. In addition, one of the letters stated that “ as long as me and you know that the baby is y ours is all thatmatters.” Ms. Stanley gave birth to Anthony Bryan Stanley in April of 1990.

In September of 1990, the State of Tennessee , as assignee f or the appellee,

filed a suit to obtain judgment of paternity and support payments against the appellant for the child. A subsequent DNA paternity te

st established a 99.71% “probability of paternity.” The trial court held that Tenn. Code Ann. § 24-7-112(b)(2)(B) entitled the State to summary judgment establishing the appellant’s paternity as a matter of law . On appeal to this Co urt, we found such statutory presumption unconstitutional and remanded the cause so that the appellant would have an oppo rtuni ty to rebut the presumption of

paternity.

The State

subsequently

voluntarily

non-suited the ori

ginal paternity action. Several months later the S tate filed another petition to establish paternity. The appellant filed an Answer and again denied paternity of the c hild and demanded a jury trial. The trial court deniedthe appellant’s request for a jury trial andthe case was set for a hearing. After a hearing, the trial court entered a judgment finding that the appellant is the legal and

biological father of the minor child. The appell

ant now appeals.

A. T HE J URY T RIAL
The appellant first takes issue with the trial cou rt’s deni al of his de

mand for a

jury tr ial. We notethat the statute in effect at the time the original paternity action was filed stated that, upon the defendant’s demand for a jury trial or if the judge of h is own mo tion orders, “the case shall be transferred

to the circuit or chancery court for jury trial on the issue of paternity.” Tenn. Code Ann. § 36-2-106(a) (Su

pp. 1990). This st

atute was rep ealed in June of 199 7. The current st

atute governing paternity actionsprovides that paternity and legitimation actions “shall be without a jury.” Tenn. Code Ann. § 36-2-308 (Supp. 1999). This statute became effective July 1, 1997, after the appellee voluntarily non-suited the original paternity action but before the appellee filed the second petition to establish paternity.-3-

The appellant argues that he had a vested right to a trial by jury and that he could not be deprivedof that right by

the appellee’s n

on-suit in June of 1977. See Anderson v. S mith , 521 S.W.2d 787 (Tenn. 1975). We disagree. Although it is hard to pin down the definition of a “vested right,”
one court defined it a

s one “which it is

proper for

the state to recognize and protect and of which [an] individual could not be deprived of arbitrarily without injustice.” Morrisv. Gross , 572 S.W.2d 902, 907 (Tenn. 1978).

In a more ge

neral sense a ve

sted right
[m]ust be something more than a mere expectation ba sed upon an anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of p roperty or

to the present or future enjoyment of a demand, or a legal exemption from a demand m ad e by another; and if before such rights become vested in particular individuals, the convenience of the state induces amendment or repeal of certain laws, these individuals have no cause to complain.

16B Am. Jur. 2d Constitutional Law § 703. Here it is important to distinguish a vested right from
an accrued right. “A right conferred solely by statute in the public interest may have accrued before the repeal or modification, but does not follow that the accrued right in such cases is a vested right in the constitutional sense.” Id.

Since there is no constitutional right to a jury trial in a paternity c ase, Rooker v. Rimer , 776 S.W.2d 124 (Tenn. Ct. App. 1989), we think the

appellant at most ha

d an accrued sta

tutory rig ht to
a jury in the former case. So long as that case continued, the repeal of

the statute would not remove the right. See Tenn. Code Ann. § 1-3-101 (“the repeal of a statute does not affect any right which accrued

. . . nor any

proceeding commenced , under or by virtue of the statu

te repealed.”) (emphasis supplied); s ee also Johnston v. Cincinnati N.O. & T.P

. Ry. Co. , 240 S.W. 429 (Tenn. 1922). But that statutory right was not a

vested right that would survive the appellee’s non-suit. Therefore when the appellee refiled the action, after the statute had been repealed, the appellant no longer had the right to d ema nd a jur y.
B. T HE O UT OF C OURT S TATEMENT
The appellant further

contends that the trial court erred by excluding an out of court statement allegedly made by the appellant’s brother, Bill Hooper. At trial, the appellant attempted to introduce evidence regarding a statement allegedly made by Bill Hooper

admitting that he had sexual relations withthe appellee and that he was the father of the appellee’schild. The trial court found the alleged statements were hearsay and did not allow testimony regarding such

statements. We note that the evidence established that th e appellant’s moth

er, step-fathe

r, and sis ter knew w here Bill Hooper lived and how to get in touch with him. However, Bill Hooper was n ot present and did

not tes tif y, in deposition form or

otherwise, at the

trial. The appell

ant contends that t

h e trial cour t erred in excluding testimony regarding the alleged

statements. The a

ppellant submits tha

t such statements didnot constitute hea

rsay beca use the statements

were offered

as an admission against interest made by an unavailable declarant. See Tenn. R. Evid. 804.-4-

We first note that it is undisputed that the statements allegedly made by the de clarant constitute hearsay. See Tenn. R. Evid. 801(c). Ho wever, Rule 804 pr

ovides that a

statement agai

nst interest is not excluded by

th e he arsay rule

if the declaran

t is unavailable a

s a witness. Tenn. R

. Evid. 804. The rule sets out th at “unavailable

” includes situatio

ns in which the dec

larant is unable to testify because o f de ath or then existing physical or mental illness or infirmity or where the declarant is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance by process. Tenn. R. Evid. 804(a) (4)-(5).

At trial, the appellant claimed that his brother was unavailable to testify because he ha d suffered an aneurysm. However, there was no evidence presented to substantiate t hi s claim. Therefore , we cannot find tha t the trial court e

rred in not finding

the declarant un

available base

d upon this mere assertion. Se e Tenn. R. Evid. 804(a)(4). The appellant further argues that the declarant was unav ailable to testify because he was a resident of Oklahoma, he wa s beyond the jurisdiction of the trial court, and hewas estranged from his family. However, the evidence does not establish that the appellant ever tried to procure the declarant’s attendance by process. In fa ct, the appellant did not even take th

e declarant’s d

eposition. Furthe

rmore, there is

no evidence supporting the assertion that the decl arant was estranged from his family or that such alleg ed estrangement would somehow prevent

the declarant from testifying in this cause. As such, we cannot find that the declarant was an unavailab

le witness under T

enn. R. Evid. 8 04(a)(5). Therefore, the alleged statements

do not fall within the purview of Rule 804 and the trial court correc tly excluded the sta tem ent s as ina dmi ssi ble hear say.
The judgment of the tr

ial court is affir

med. The cause is

rema nde d to the Chancery Court of Dickson County for any further proc eedings necessary. Tax the costs on appeal to the appellant, Joh n Fra nk H oop er, f or w hic h ex ecut ion may i ssu e if nece ssa ry.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.