Kilby v. Kilby

Full title: LINDA L. HUSKEY KILBY, Plaintiff-Appellee v. ERNEST KILBY, JR.…

Court: Court of Appeals of Tennessee. at Knoxville

Date published: Jan 28, 1999

03A01-9712-CH-00549 (Tenn. Ct. App. Jan. 28, 1999)

Opinion

03A01-9712-CH-00549

January 28, 1999

BLOUNT COUNTY, HON.C. S. RAINWATER, JR., CHANCELLOR

REVERSED, DISMISSED and REMANDED

JOHN M. FOLEY FOR APPELLANT

PERRY P. PAINE, JR., FOR APPELLEE

OPINION

GODDARD, P.J.

The Plaintiff in this case seeks to modify an agreed divorce decree relative to the support and custody of a handicapped child, who has now reached her majority.

I. FACTS

The parties to this appeal are parents of a handicapped adult, Shannon Kilby. Shannon had a stoke when she was less than a year old, is blind, mentally retarded, and requires constant care. She reached her 18th birthday on August 26, 1995, approximately 15 months after her parents were divorced in May 1994. Their agreed final decree provided as follows:

That the parties shall be awarded joint custody of the parties' minor child, Shannon Kilby. That the Defendant shall be entitled to have the child every other week.

That the Defendant shall pay unto the Plaintiff the sum of Two Hundred Dollars ($200.00) per week as child support for each week that the Plaintiff has the said child. That the support obligation of the Defendant shall be reduced or terminated when the child qualifies for disability or social security benefits.

That the Defendant shall provide hospitalization insurance coverage for the parties' child and each party shall pay one-half (1/2) of all medical and dental expenses incurred on behalf of said child not covered by insurance.

Following the divorce, the parties never strictly adhered to the visitation set forth in the divorce decree. At first, they each assumed physical custody of Shannon for two weeks at a time; then the time increased to four weeks for each. Later, Mother requested Father keep Shannon for six weeks at a time. Testimony in the record indicates that Shannon would get upset about being moved and that infrequent changes were beneficial to her and to her care givers.

Shortly after Shannon became 18 years of age, Father took her to his farm in Liberty, Tennessee, where she was mainly cared for by her older sister, April. April has cared for Shannon since Shannon was born and the sisters are very close. Shannon stayed at the farm from August 25, 1995, until November 21, 1995, when Mother came to pick her up.

Father had told April that Mother was not to pick up Shannon without his consent. When Mother came to pick up Shannon in November 1995, Mother had notified neither Father nor April that Mother intended to pick up Shannon. Mother just appeared and placed Shannon in her car. April's live-in boy friend then removed Shannon from the car and took her back into the house. At that point, a physical confrontation occurred between Mother and April's boy friend with the result that Mother returned at mid-night with police and had Shannon removed from the house. The record indicates that Mother and April were not close and that April lived with her Father during the parties' separation and subsequent divorce.

When Shannon became 18, Father made appointments with the Social Security office for Mother to apply on behalf of Shannon for Social Security benefits. Mother did not keep those appointments. While Father had custody of Shannon, he successfully obtained Social Security disability benefits for Shannon. Commencing on November 8, 1995, Shannon began receiving SSI benefits of $313 monthly. Father opened a joint account for himself and Shannon and deposited Shannon's SSI checks into the account. Testimony in the record indicates that the amount in the account cannot exceed $1800. Father withdrew money from the account to purchase Shannon's clothes, have her hair styled, pay for her medicine and to purchase other goods and services for Shannon's benefit. Father gave Mother and April money for keeping Shannon.

The record is unclear as to Father's exact work schedule. Father would come to the farm to spend time with April and Shannon on the days he was not working. He also would spend all his vacation time (five weeks during 1995) at the farm while Shannon was there.

Each party disputes the quality of care that Shannon receives from the other, although Mother admits that Father takes good care of Shannon when he has her. The record indicates that Mother's opinion of the quality of care April provides for her sister when Shannon lives with her on the farm, stems from the rift which occurred between April and her mother prior to her parents' divorce. It is undisputed, however, that when April lived at home with either her Mother or her Father, that April provided quality care for Shannon, that April loves her sister and that they get along well.

On January 9, 1996, Mother filed a petition in the Blount County Chancery Court seeking full custody of Shannon. Father responded seeking sole custody of Shannon and challenged whether either party could claim continuing legal custody of Shannon beyond her 18th birthday without having sought a decree of legal custody, guardianship or conservatorship.

The Court determined that it still possessed jurisdiction in this matter as a result of the divorce, found that Shannon Kilby was dependant upon her parents and placed sole custody of Shannon with Mother. The Court awarded Father visitation on the days he was not working provided he gave advance notice; however, if the parties could not agree upon a visitation schedule, then Father would have standard visitation. Father was to pay $800 per month child support and provide hospitalization insurance for Shannon. Any medical expenses not covered by insurance were to be split evenly. The matter of arrearage in child support was referred to the Clerk Master as Special Master.¹

1 The Special Master's report, which was confirmed by the Chancellor by an order entered on August 19, 1997, found:

The final decree of divorce provided that the Defendant's support obligation was owing only at such times when the Plaintiff had physical custody of the minor daughter. Physical custody changed numerous times from the time of the filing of the Final Decree up until the filing of the Court's Order entered April 15, 1997. The Defendant states that he satisfied all support obligations through the time the minor daughter reached the age of 18 (August 26, 1995). The Plaintiff offered no proof to the contrary.

It appears that the Defendant had physical custody of his daughter from August 1995 through November 1995. Prior to the Plaintiff taking custody, the Defendant successfully obtained social security benefits for the minor daughter. The Defendant has not paid child support since November 1995. It is the Special Master's opinion that, based upon the evidence presented, the Plaintiff has failed to sustain the allegation of any arrearage of child support due.

After the decision was rendered, Father filed a motion for the Court to reconsider its order to pay child support for a handicapped child. The motion was overruled by the Court and this appeal ensued.

II. ISSUES

The Appellant presents two issues for our review, which we shall rephrase as follows:

Did the Chancellor err in modifying provision of the final decree providing for joint custody of Shannon, who is now a handicapped adult, fixing sole custody in the mother and awarding Mother child support without having any evidence as to the present needs of the handicapped adult?

III. THE LAW AND DISCUSSION

Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure, our review of findings of fact is de novo upon the record of the Chancery Court, accompanied by a presumption of the correctness of the Chancellor's findings, unless the preponderance of the evidence is otherwise. However, the presumption does not attach in a case, where the facts are undisputed, and only a question of law is presented. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).

Additionally, the construction of a statute is a question of law which we review de novo, with no presumption of correctness. Our role in construing statutes is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope.Roseman v. Roseman, 890 S.W.2d 27 (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. State Department of Revenue, 865 S.W.2d 1 (Tenn. 1993). We will consider the statutory issues in this appeal with these standards in mind in interpreting the statutes which have been brought to our attention.

Apparently the Chancellor determined that he retained the authority to modify or alter the prior decree and orders of the court, in regard to custody of Shannon, pursuant to T.C.A. 36-6-101 which, as pertinent here, reads as follows:

36-6-101. Decree for custody and support of child -Enforcement -Juvenile court jurisdiction -Presumption of parental fitness -Educational seminars.

(a)(1) In a suit for annulment, divorce or separate maintenance, where the custody of a minor child or minor children is a question, the court may, notwithstanding a decree for annulment, divorce or separate maintenance is denied, award the care, custody and control of such child or children to either of the parties to the suit or to both parties in the instance of joint custody or shared parenting, or to some suitable person, as the welfare and interest of the child or children may demand. . . . Such decree shall remain within the control of the court and be subject to such changes or modification as the exigencies of the case may require. . . .

(b) 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.

We disagree with the Chancellor's determination. T.C.A. 36-6-101(a)(1) by its own language applies only to custody of a minor child or minor children. In inquiring into the meaning of " minor," and if it could mean a handicapped child age 18 or over, we have examined a number of uses of the word "minor" 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.² 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. Moreover, we have found in T.C.A. 1-3-105, which sets forth the definition of terms used as a whole in the Tennessee Code provides for a minor being any person who has not attained 18 years of age.

2 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).

T.C.A. 1-3-105.

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, 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.

It is black letter law that emancipation of a minor 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 Act, Chapter 162, Public Acts of 1971. As our Supreme Court has stated in Garey v. Garey, 482 S.W.2d 133, 135 (Tenn. 1972):

It is fundamental that once a child reaches the age of majority there is a complete emancipation of the minor from the protective bonds of parental control. Memphis Steel Const. Co. v. Lister (1917) 138 Tenn. 307, 197 S.W. 902. At the time of complete emancipation the parents' legal duty to support the child is terminated. Wallace v. Cox (1916) 136 Tenn. 69, 188 S.W. 611.

In Section 3 of Chapter 162 of the Public Acts of 1971 the General Assembly has conferred the status of adulthood on persons 18 years of age or older. By lowering the age of majority from 21 to 18 years of age the Legislature has completely emancipated the minor from the control of the parents and relieved the parents of their attendant legal duty to support the child.

Ten years after the Court's opinion in Sayne v. Sayne, 39 Tenn. App. 422, 284 S.W.2d 309 (1955), which held the parents' duty to support a disabled child continued after majority, the Legislature enacted T.C.A. 33-1-101, et seq., dealing with mentally ill and mentally retarded persons and the facilities provided for them. T.C.A. 33-1-101(15) and (19) are particularly informative to the case at hand:

(15) "Mentally retarded individual or mentally deficient individual" means an individual who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period;

. . . .

(19) "Responsible relatives" means the spouse, if there be such, of the mentally ill patients receiving care and service in mental health programs under the jurisdiction of the department of mental health and mental retardation, and the parent or parents of unmarried mentally ill patients or mentally retarded residents who have not attained the age of eighteen (18). . .

In 1992, effective January 1, 1993, the Legislature enacted our present T.C.A. 34-11-101, et seq., and T.C.A. 34-13-101, et seq., dealing with conservatorships.³ As pertinent in this matter, T.C.A. 34-11-101 contains the following definitions:

3 It should be noted that "Sayne" was decided in 1955 prior to the enactment of the Legal Responsibility Act in 1971.

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 Shannon meets the definitions of a mentally retarded person contained in T.C.A. 33-1-101 and a disabled person contained in T.C.A. 34-11-101.

18 Tenn. Juris., Mentally Ill and other Incompetents, § 7, provides:

In addition to designation of limited guardians for patients or residents of state institutions pursuant to commitment proceedings, the General Assembly previously provided for appointment of limited guardians to provide for the care and treatment of disabled persons and their estates, regardless of commitment, appointment of conservators of the

estates of disabled persons, also regardless of commitment, . . .

. . . .

Power with respect to the care and custody of persons of unsound mind and the possession and control of their estates are thus vested in the state, or the people thereof, the exercise of which power the people may delegate to the courts by constitutional or statutory provision. . . . The court is always the ultimate guardian of persons under disability, such as those who are insane, who come under its care and protection. Jurisdiction over limited guardianship proceedings was vested in chancery court, circuit court, law and equity court, or probate court in counties having such court; jurisdiction over appointment of conservators was vested concurrently in the chancery court and the probate court. Chancery courts, acting in loco parentis, and as general guardians for minors, idiots, lunatics and persons of unsound mind, will do for them and their property what they themselves would in all probability have done if possessed of good reason and good conscience.

It is clear that the meaning of the word minor in the Tennessee Code designates a person under the age of 18 and, therefore, the Trial Court had no jurisdiction to hear this matter and to modify the physical custody of Shannon under the agreed divorce decree. Rather, the procedures contained in T.C.A. 34-13-101, et seq., which address conservatorship, should have been followed.

Before concluding, we observe that if in the future the funds available are insufficient for her support, a conservator would have the authority to seek a decree requiring the parents to contribute thereto.

For the reasons stated above, the judgment of the Trial Court is reversed and the petition is dismissed. In light of our dismissal of the original petition in this matter, we see no need to address Father's second issue. The cause is remanded for proceedings not inconsistent with this opinion. Costs of this appeal are adjudged against Mother and her surety. _______________________________ Houston M. Goddard, P.J.

CONCUR: ________________________________ Herschel P. Franks, J. ________________________________ Don T. McMurray, J.