                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs April 10, 2000

              DANIEL WHITE v. STATE OF TENNESSEE EX REL.
                        BRENDA ARMSTRONG

                    Appeal from the Juvenile Court for Davidson County
                       No. 147-123-893 Betty Adams Green, Judge



                  No. M1999-00713-COA-R3-CV - Filed February 16, 2001


This appeal involves the State’s liability to repay child support payments made by a man who had
voluntarily legitimated a child he believed to be his own. After this court directed the Davidson
County Juvenile Court to grant him prospective relief from the legitimation order in accordance with
Tenn. R. Civ. P. 60.02(4), the man requested the juvenile court to order the State and the child’s
biological mother to reimburse him for the child support payments he had made following the entry
of the legitimation order. The juvenile court denied the request on the ground that it lacked subject
matter jurisdiction to order the State to reimburse “overpaid child support.” We have determined
that the juvenile court lacks subject matter jurisdiction to adjudicate these claims and, therefore,
affirm the juvenile court’s order.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

Clark Lee Shaw and Cynthia Bohn, Nashville, Tennessee, for the appellant, Daniel White.

Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee.

                                            OPINION

       Daniel White and Brenda Armstrong lived together as husband and wife in the early 1990s.
During this time, Ms. Armstrong gave birth to two sons. The older son was born in June 1991, and
the younger in November 1992. Shortly after her second son was born, Ms. Armstrong told Mr.
White that he was not the boy’s biological father. This news precipitated the end of Mr. White’s and
Ms. Armstrong’s relationship, and they separated shortly thereafter.
        Following the separation, Mr. White filed a pro se legitimation petition in the Davidson
County Juvenile Court.1 He waived his right to insist on genetic testing, and Ms. Armstrong did not
contest his petition. Accordingly, on January 5, 1994, a juvenile court referee entered an order
declaring Mr. White to be the father of Ms. Armstrong’s older son. The order also directed Mr.
White to pay Ms. Armstrong $4,847 in back child support, as well as $264 in prospective monthly
child support.

         For the next three years or so, Mr. White paid his child support and regularly exercised his
visitation rights. By mid-1997, comments by Ms. Armstrong and the child prompted Mr. White to
question whether he was the child’s biological father. After the juvenile court refused to order
genetic testing, Mr. White obtained the testing on his own, and the results of this test categorically
excluded him as the child’s biological father. In November 1997, he requested the juvenile court
to terminate his support obligations. When the juvenile court declined to relieve him of this support
obligation, Mr. White appealed to this court. We vacated the juvenile court’s order and remanded
the case with directions to grant Mr. White prospective relief from the January 5, 1994 legitimation
order in accordance with Tenn. R. Civ. P. 60.02(4). White v. Armstrong, No. 01A01-9712-JV-
00735, 1999 WL 33085 (Tenn. Ct. App. Jan. 27, 1999) (No Tenn. R. App. P. 11 application filed).

        When the case returned to the juvenile court, the court entered an order on March 5, 1999,
granting Mr. White relief from his child support obligation. On June 28, 1999, Mr. White filed a
“motion for judgment for overpaid child support” requesting the juvenile court to order Ms.
Armstrong and the State2 to reimburse him for all the child support he had paid to Ms. Armstrong
since January 5, 1994. The State opposed the motion primarily on the ground that it was not legally
required to repay child support in cases where paternity has been voluntarily acknowledged. On
September 2, 1999, the juvenile court entered an order denying Mr. White’s motion to recoup any
part of his child support payments from the State. Mr. White has now perfected this appeal.

                                              I.
                       THE JUVENILE COURT’S SUBJECT MATTER JURISDICTION

        The dispositive issue in this case is whether the General Assembly has given juvenile courts
jurisdiction to award money judgments against the State of Tennessee to reimburse persons who
have made voluntary support payments before discovering that they are not the supported child’s
biological parent. The juvenile court concluded that it lacked this jurisdiction. We have determined


         1
          This petition was governed by the since-repealed legitimation statutes. Tenn. Code Ann. §§ 36-2-201, -210
(repealed 1997).

         2
           Mr. White sought reimbursement from the State because, by operation of law, Ms. Armstrong and her son had
assigned their child support rights to the State in exchange for public assistance under the federal Title IV-D program.
See generally Baker v. State ex rel. Baker, No. 01A01-9509-CV-00428, 1997 WL 7494 52, at *3 (Tenn. Ct. App. Dec.
5, 1997) (No Tenn. R. App. P. 11 application filed) (discussing the assignment o f child suppo rt rights under the Title
IV-D program). As the assignee of Ms. Armstrong’s child support rights, the State stands in Ms. Arm strong’s shoes and
is the real party interest in this dispute.

                                                          -2-
that the juvenile court’s view of its jurisdiction was correct in light of both the inherent limitations
on the jurisdiction of juvenile courts and the doctrine of sovereign immunity.

                                            A.
                 THE JUVENILE COURT’S LIMITED SUBJECT MATTER JURISDICTION

        The concept of subject matter jurisdiction implicates a court’s authority to hear and decide
a particular type of case. Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.
1996); Cashion v. Robertson, 955 S .W.2d 60, 63 (Tenn. Ct. App. 1997). Courts derive their subject
matter jurisdiction from the Constitution of Tennessee or from a legislative act, Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977), and thus they cannot exercise jurisdictional powers that have not
been conferred on them directly or by necessary implication. Dishmon v. Shelby State Cmty. Coll.,
15 S.W.3d 477, 480 (Tenn. Ct. App. 1999).

        Subject matter jurisdiction depends on the nature of the cause of action and the relief sought.
Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). It does not depend upon the conduct or the
agreement of the parties. Shelby County v. City of Memphis, 211 Tenn. 410, 413, 365 S.W.2d 291,
292 (1963). Thus, the parties cannot confer subject matter jurisdiction on a court by appearance,
plea, consent, silence, or waiver. Caton v. Pic-Walsh Freight Co., 211 Tenn. 334, 338, 364 S.W.2d
931, 933 (1963); Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d at 480. Without subject matter
jurisdiction, a court cannot enter valid, enforceable orders. Brown v. Brown, 198 Tenn. 600, 610,
281 S.W.2d 492, 497 (1955); Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991).

         The juvenile courts were unknown at common law. State ex rel. Hyatt v. Bomar, 210 Tenn.
249, 252, 358 S.W.2d 295, 296 (1962); State v. Stout, No. 89-331-II, 1990 WL 91143, at *3 (Tenn.
Ct. App. July 5, 1990) (No Tenn. R. App. P. 11 application filed). They are entirely creatures of
statute, and thus their subject matter jurisdiction is circumscribed by the statutes creating them. West
Tennessee Agape, Inc. v. Lipe, 515 S.W.2d 648, 649 (Tenn. Ct. App. 1974). Unlike circuit or
chancery courts, juvenile courts have special and limited jurisdiction, Stambaugh v. Price, 532
S.W.2d 929, 932 (Tenn. 1976); Juvenile Court v. State ex rel. Humphrey, 139 Tenn. 549, 555, 201
S.W. 771, 772 (1918), although they have full power to act within the jurisdiction they have been
provided. Cartwright v. Juvenile Court, 172 Tenn. 626, 629, 113 S.W.2d 754, 756 (1938).

        We must take care not to extend the subject matter jurisdiction of the juvenile courts beyond
the jurisdiction conferred on them by the General Assembly. While the juvenile courts have broad
statutory authority to establish a child’s paternity3 and to issue orders setting, modifying, or even
terminating child support,4 we find no statute giving the juvenile courts authority, expressly or by
implication, to order the State to reimburse a person who has voluntarily paid child support based



       3
           Tenn. Code Ann. § 37-1-103 (a)(2) (Supp. 2000).

       4
           Tenn. Code Ann. §§ 36 -5-401, -701, -2101, 37-1-104(d) (1996 & Supp.2000).

                                                        -3-
on the mistaken belief that he was the child’s biological father. In the absence of statutory authority,
the juvenile courts do not have subject matter jurisdiction over requests of this sort.

                                                     B.
                                             SOVEREIGN IMMUNITY

        Even if we were to hold that the power to order reimbursement of child support is somehow
implicit in the power to order the payment of child support, a compelling constitutional barrier – the
doctrine of sovereign immunity – prevents us from holding that the juvenile courts have the subject
matter jurisdiction to adjudicate these claims against the State. The doctrine of sovereign immunity
divests the courts of subject matter jurisdiction over suits against the state for money damages unless
the State has consented to these suits. Shell v. State, 893 S.W.2d 416, 420 (Tenn. 1995); Pool v.
State, 987 S.W.2d 566, 568 (Tenn. Ct. App. 1998). The State has not consented to being subjected
to claims like the one Mr. White is pursuing here.

        At common law, the doctrine of sovereign immunity provided an impenetrable barrier
protecting state and local governments from suits for money damages. The original framers of our
Constitution recognized that justice and good policy might require exceptions to this rule, Hembree
v. State, No. 01A01-9306-BC-00279, 1995 WL 50066, at *2 (Tenn. Ct. App. Feb. 8, 1995), aff’d,
925 S.W.2d 513 (Tenn. 1996). Accordingly, they provided in Tenn. Const. art. I, § 17 that “[s]uits
may be brought against the State in such manner and in such courts as the Legislature may by law
direct.” Because Tenn. Const. art. I, § 17 is not self-executing, the General Assembly has the
exclusive constitutional prerogative to establish the procedures for making monetary claims against
the State. General Oil Co. v. Crain, 117 Tenn. 82, 89, 95 S.W. 824, 826 (1906); Williams v.
Register, 3 Tenn. (1 Cooke) 213, 217 (1812).

        The General Assembly eventually enacted Tenn. Code Ann. § 20-13-102(a) (1994) which
flatly closed the doors of all state courts to suits intended to reach the state treasury. Quinton v.
Board of Claims, 165 Tenn. 201, 217, 54 S.W.2d 953, 957-58 (1932). In the one hundred and
twenty-seven years since enacting Tenn. Code Ann. § 20-13-102(a), the General Assembly has been
extremely reluctant to wield its power under Tenn. Const. art. I, § 17. On only two occasions has
it enacted a statute permitting the State to be sued for money damages in state court. First, in 1977,
the General Assembly enacted statutes permitting suits against the State for breach of express or
implied contracts.5 The second occasion occurred in 1984 when the General Assembly created the




         5
            Act of May 4, 1 977, ch. 2 81, 197 7 Tenn . Pub. Ac ts 652, co dified at Te nn. Code Ann. §§ 2 9-10-10 1, -103
(repealed 1984). By 1989, the General Assembly had removed these claims fro m state courts and had place d them with
the Tenness ee Cla ims Commission and had narrowed the right to sue to apply only to actions for breach of a written
contract between the claimant and the state. Tenn. Code Ann. § 9-8 -307(a)(1 )(L) (Supp . 2000); Computer Shoppe, Inc.
v. State , 780 S.W .2d 729 , 736 (T enn. Ct. Ap p. 1989 ).

                                                           -4-
Tennessee Claims Commission and vested the Commission with jurisdiction to adjudicate certain
defined contract and tort claims against the State.6

        Statutes permitting the State to be sued for money damages must be strictly construed
because they are in derogation of the common law. Hembree v. State, 925 S.W.2d 513, 516 (Tenn.
1996); Beare Co. v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986); Stokes v. University of Tennessee,
737 S.W.2d 545, 546 (Tenn. Ct. App. 1987). Any statute purporting to waive the State’s sovereign
immunity must be “so plain, clear and unmistakable as to leave no room for doubt of the intention
of the legislature.” Quinton v. Board of Claims, 165 Tenn. at 214-15, 54 S.W.2d at 957; Hise v.
State, 968 S.W.2d 852, 853 (Tenn. Ct. App. 1997). Thus, the courts may not presume that the
General Assembly waived sovereign immunity any more than the express statutory language. Daley
v. State, 869 S.W.2d 338, 340 (Tenn. Ct. App. 1993).

        We have already concluded that the statutes creating the Tennessee Board of Claims and
authorizing certain contract and tort claims against the State do not permit claims for reimbursement
of child support payments. Fossett v. State, No. 02A01-9703-BC-00061, 1997 WL 714877, at *2
(Tenn. Ct. App. Nov. 18, 1997), perm. app. denied (Tenn. June 8, 1998). Mr. White has not cited
this court to any statute or other authority permitting suits against the State to recover voluntarily
paid child support, and our independent research has uncovered none. To the contrary, Tenn. Code
Ann. § 36-5-101(n)(2) (Supp. 2000) specifically states that the State may not be sued “to
compensate any person for repayment of child support paid . . . as a result of . . . the rescission of any
orders of legitimation, paternity, or support.”7

        In the absence of any statute plainly and unmistakably permitting monetary claims such as
the one Mr. White is pursuing in this case, and in light of Tenn. Code Ann. § 36-5-101(n)(2), we
have concluded that the juvenile court correctly determined that it did not have subject matter
jurisdiction to adjudicate Mr. White’s claim against the State.8



         6
         Act of May 24, 1984, ch. 972, 1984 Tenn. Pub. Acts 1026, codified at Tenn. Code Ann. §§ 9-8-301, -307
(1999 & Supp. 2000). This Act repealed the 1977 legislation permitting the filing of contract actions against the State.

         7
          This statute was enacted in 1997, Act of May 30, 1997, ch. 551, § 41, 199 7 Tenn. Pub. Acts. 1012, 1079-80,
and is applicable to this proceeding.

         8
           Our decision that Mr. White can not pursue his claims against the State in juve nile court rests o n the juvenile
court’s limited subject matter jurisdiction and the doctrine of sovereign immunity. Thus, our opinion should not be
construed as preventing Mr. White from seeking reimbursement from other parties in a different forum. Biological
parents have a joint and several obligation to support their minor children. Tenn. Code Ann. § 34-1 1-102(a) (1996);
Garey v. Garey, 482 S.W .2d 133 , 135 (T enn. 1972) ; Merrill v. Merrill , 188 Tenn. 10, 12-13, 216 S.W.2d 705, 706
(1948). A father’s duty to support his child is ordinarily not discharged when a third party contributes to the child’s
support. Owen v. Watson, 157 Tenn. 352, 356, 8 S.W.2d 484, 485 (1928). Thus, a third party who provides necessaries
to a minor child may recover from the father. Baker v. Baker, 169 Tenn. 589, 592-93, 89 S.W .2d 763 , 764 (19 35); Owen
v. Watson, 157 Tenn. at 356, 8 S.W .2d at 485. As the juvenile court pointed out, Mr. White may very well have a claim
against the biological father of Ms. Armstrong’s child if and when he is ever discovered.

                                                            -5-
                                                            II.
                                MR . WHITE’S FEDERAL CIVIL RIGHTS CLAIM

       Mr. White also asserts that the State had been “unjustly enriched” by the child support
payments that he made between January 1995 and March 1999. Accordingly, citing Davis v.
McClaran, 909 S.W.2d 412 (Tenn. 1995), he insists that the juvenile court’s refusal to consider his
claim for reimbursement deprived him of federally protected rights in violation of 42 U.S.C.A. §
1983 (West 1994). We are at a loss to understand how Davis v. McClaran supports Mr. White’s
argument, but we need not dwell on this question because Mr. White did not assert a 42 U.S.C.A.
§ 1983 claim in the juvenile court. Claims not pursued in the trial court cannot be raised for the first
time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991);
Chadwell v. Knox County, 980 S.W.2d 378, 384 (Tenn. Ct. App. 1998).9

                                                            III.

        In light of our conclusion that the juvenile court did not have subject matter jurisdiction to
adjudicate Mr. White’s reimbursement claim, we pretermit his “taking” argument predicated on
Tenn. Const. art. I, § 21. We affirm the dismissal of Mr. White’s claim for reimbursement of the
child support he paid prior to March 5, 1999, and remand the case to the juvenile court for whatever
further proceedings may be required. We also tax the costs of this appeal to Daniel White and his
surety for which execution, if necessary, may issue.



                                                                   _____________________________
                                                                   WILLIAM C. KOCH, JR., JUDGE




         9
            We note parenthetically that state courts unquestionably have jurisdiction to adjudicate 42 U.S.C.A. § 1983
claims, Poling v. Goins, 713 S.W.2d 305, 306 (Tenn. 1986), and that the doctrine of sovereign imm unity is not a defense
to civil rights actions w hen they are p roperly filed. Howlett v. Rose , 496 U.S. 356 , 383, 11 0 S. Ct. 2430, 2447 (199 0).
However, juvenile courts are courts of lim ited jurisdictio n, Stambaugh v. Price, 532 S.W.2d at 932, and we find no
statute empowering juvenile courts to adjudicate 42 U.S.C.A. § 1983 claims. Thus, while these claims may be pursued
in the circuit or ch ancery cou rts, they may not b e pursued in the juvenile co urts.

                                                            -6-
