                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                        February 14, 2003 Session

             RICHARD HUMPHREY v. JEANETTA GAMMAGE, ET AL.

                        Appeal from the Chancery Court for Davidson County
                             No. 01-2700-lll  Ellen Hobbs Lyle, Judge



                          No. M2002-00507-COA-R3-CV - Filed May 14, 2003


This appeal arose after the trial court granted summary judgment for Jeanetta Gammage and Deborah
Gammage against Richard Humphrey in his petition to establish paternity of Karenda Raines.
Because the petitioner could not establish any issues of material facts as grounds to proceed with his
petition, we affirm the judgment of the trial court.

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

L. CRAIG JOHNSON, SP . J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J.
and WILLIAM B. CAIN , J. joined.

Robert L. Whitaker, Nashville, Tennessee, for the appellant, Richard Humphrey.

Gerald Wayne Davis, Nashville, Tennessee, for the appellees, Jeanetta Gammage and Deborah
Gammage.


                                        MEMORANDUM OPINION1

      This is a paternity action filed by the petitioner, Richard Humphrey, seeking to establish the
parentage of a deceased minor, Karenda Raines. This petition was filed as a result of the petitioner's
dismissal as plaintiff in a wrongful death action wherein he alleged that he was the next-of-kin of
the deceased minor. Karenda Raines was born to Karen Raines on February 4, 1987. She and her
mother died as the result of an automobile accident on December 21, 1999. During most of

       1
           Tenn.R.Ct.Ap p. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse o r modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. when a case is decided by memo randum opinion it shall be designated
       "MEMORANDUM OPIN ION," shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
Karenda's life the petitioner was incarcerated with the Tennessee Department of Correction. The
petitioner never married or attempted to marry Karenda's mother. He never provided any financial
support during the lifetime of the child. No visitation privileges were ever established after his
release from prison. The body of Karenda Raines was cremated, and a DNA Test to establish
parentage was never performed and is now impossible. The petitioner's name was listed as the
father on her death certificate.

          Mr. Humphrey filed suit under the wrongful death statute as the next-of-kin of Karenda
Raines. In the complaint he alleged that he was the father of the deceased minor and, therefore, was
first in line to pursue legal action. Subsequently, he was on the losing end of a summary judgment
motion in Case No. 99-C-3626 in the Circuit Court for Davidson County, Tennessee, because he
could not establish himself as the next-of-kin to the deceased child. As a result of the summary
judgment, he filed this paternity action. The defendants in this cause filed a summary judgment
motion, and on January 18, 2002, a hearing was held in the Chancery Court for Davidson County,
Tennessee. The Court dismissed plaintiff's petition because he could not establish any issues of
material fact as a matter of law as grounds to proceed further on his petition. The plaintiff then filed
this timely appeal.

         Summary judgments are proper in civil cases that can be resolved on the basis of legal
issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997) and Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993). The moving party has the burden of proving that its motion satisfies the
requirements for summary judgment under Tennessee Rules of Civil Procedure, Rule 56.03. When
it is a properly supported motion, the burden shifts to the opposing party to set forth disputed
material facts which must be resolved by the trier of fact. Once a properly supported motion is put
forth, the non-moving party must offer proof to establish the existence of the essential elements of
the claim. The Court must review the evidence first to determine whether a factual dispute exists.
If it does exist, it must then determine whether the fact is material to a claim and whether or not the
disputed fact creates a genuine issue for the jury. Byrd, 847 S.W.2d 214. The Court must view the
evidence in the light most favorable to the non-moving party and draw all reasonable inferences in
the non-moving party's favor. Staples v. CBL. & Associates, Inc., 15 S.W.3rd 83 (Tenn. 2000).

        T.C.A. § 36-2-301 is the single cause of action to establish natural parentage in Tennessee
when the matter is in dispute. The statute replaces all other prior statutes to establish contested
parentage and extinguishes all other prior presumptions of parentage, whether by statute or by case
law. See, T.C.A. § 36-2-304(c). Under the current statute, which allows a man to file a complaint
to establish parentage, he can establish a rebuttable presumption of paternity only under certain
circumstances that are found in the statute. Specifically, (1) the alleged father and mother must
marry or attempt to marry before or after the child's birth, or (2) he must receive the child into his
home and openly hold the child out as his natural child while the child is under the age of majority,
or (3) the results of a genetic test are positive for parentage as provided in T.C.A. 24-7-112.

         The petitioner argues that although he cannot meet the parentage presumption under the
statute, he has created genuine issues of disputed facts to establish parentage. Petitioner argues that


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he has attempted in good faith to develop a relationship with Karenda Raines, but was prevented
from doing so because of his lengthy incarceration. In addition, he argues that he lived with and had
a sexual relationship with the minor's mother during the time she became pregnant. He also argues
that Ms. Raines' family acknowledged him as the minor's father and that they allowed his name to
be placed on her death certificate. Although the previous list of facts may be disputed, none of these
claims are material to the issues and elements under the present day paternity statute.

        The paternity statute clearly sets forth the elements of the rebuttable presumptions of
parenthood. After carefully reviewing the evidence as presented by the petitioner in a light most
favorable to him, the facts fail to make out a case under the paternity statute. He and the deceased
mother never married or attempted to marry before or at the time of or after the birth of the minor.
The deceased minor was never taken into the petitioner's home or held out by him to be his child.
Finally, the deceased minor was cremated, and a genetic test was never performed and is now
impossible. There is no other evidence available to the petitioner to prove his parentage under the
paternity statute.

       We find there is no evidence creating a material issue of fact as to the paternity of the
deceased minor. Consequently, we find that the summary judgment was appropriate under the
circumstances. We affirm the decision of the trial court. The costs on appeal are taxed to the
appellant, Richard Humphrey.




                                                       ___________________________________
                                                       L. CRAIG JOHNSON, SPECIAL JUDGE




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