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Witt v. Witt

Court of Appeals of Tennessee, Knoxville

March 27, 2018

SABRINA RENAE WITT
v.
ERICA CHRISTINE WITT

          Session Date: November 15, 2017

          Appeal from the Circuit Court for Knox County No. 136047 Gregory S. McMillan, Judge

         Individual members of the 109th Tennessee General Assembly and the 110th Tennessee General Assembly appeal the order of the Circuit Court for Knox County ("the Trial Court") denying their motion to intervene in this suit involving the divorce of a same-sex couple and specifically involving the issue of whether the spouse who has no biological or other recognized legal relationship to the parties' minor child may be considered a parent under Tenn. Code Ann. § 68-3-306 (2013). We find and hold that because all of the issues in the divorce now are final the case has been rendered moot as it has lost its justicability and no longer involves a present, ongoing controversy. We further find and hold that no exceptions to the mootness doctrine apply. As the case is moot, we dismiss this appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed Case Remanded

          David E. Fowler, Franklin, Tennessee, for the appellants, members of the 109th General Assembly and members of the 110th General Assembly.

          John K. Harber, Knoxville, Tennessee, for the appellee, Sabrina Renae Witt. Virginia A. Schwamm, Knoxville, Tennessee, for the appellee, Erica Christine Witt.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W. MCCLARTY and BRANDON O. GIBSON, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Sabrina Renae Witt ("Sabrina") and Erica Christine Witt ("Erica")[1] were married in Washington, DC in 2014. Upon marriage, Sabrina took Erica's last name of Witt. During the marriage and by agreement of the parties, Sabrina became pregnant through artificial insemination by an anonymous donor. She gave birth to a child ("the Child") in January of 2015. The Child also carries Erica's surname of Witt. Erica is not listed on the Child's birth certificate and did not adopt the Child. In June of 2015, the United States Supreme Court released its opinion in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) holding that same-sex couples have a constitutional right to marry.

         In February of 2016, Sabrina filed for divorce in the Trial Court. In her complaint, Sabrina alleged: "No biological child of the Defendant born to this marriage." Erica answered the complaint and alleged that pursuant to Tenn. Code Ann. § 68-3-306 she is a legitimate parent of the Child. As pertinent, Tenn. Code Ann. § 68-3-306 provides:

         68-3-306. Birth from artificial insemination.

A child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife.

Tenn. Code Ann. § 68-3-306 (2013). Erica argued that the statute should be read in a gender-neutral fashion.

         Sabrina filed a motion for partial summary judgment on the issue of whether Erica could be considered the Child's parent. Erica also filed a motion for partial summary judgment on this issue. After a hearing, the Trial Court entered its order on July 6, 2016 holding, inter alia, that Tenn. Code Ann. § 68-3-306 was not ambiguous, that Obergefell v. Hodges did not override the court's duty to interpret statutes in a manner that gives effect to their plain meaning, and that Tenn. Code Ann. § 68-3-306 did not apply to this case.

         Erica filed a motion to reconsider or to alter or amend alleging that Tenn. Code Ann. § 68-3-306 was unconstitutional, which the Trial Court later denied. Fifty-three individual members of the 109th Tennessee General Assembly ("109th Legislators") then filed a motion to intervene. The Attorney General also filed a motion to intervene on behalf of the State to defend the constitutionality of Tenn. Code Ann. § 68-3-306. An agreed order was entered allowing the State to intervene.

         Sabrina and Erica reached an agreement with regard to grounds for the divorce, property division, and alimony and entered into a Marital Dissolution Agreement. Sabrina and Erica also both opposed allowing the 109th Legislators to intervene.

         After a hearing on the 109th Legislators' motion to intervene, the Trial Court entered its order on October 17, 2016 finding and holding, inter alia, that the request to intervene was made by individuals who are members of the General Assembly and not on behalf of the State or the legislative bodies; that in order to intervene a party must establish four specific elements, the first of which, timeliness, the parties agreed had been met; that the 109th Legislators' interest was only 'related, ' and was 'remote and contingent'; and that: "The contingent and remote harm to the interests claimed by [the 109th Legislators] will result not from a court's inappropriate action, but instead from the separation of powers provided for by the Constitution of the State of Tennessee." The Trial Court denied the motion to intervene but granted permission for the ...


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