                                    IN T H E C O U R T O F A P P E A L S O F T E N N E S S E E ,
                                                        A T J A C K S O N

                                                                                                                                   FL E
                                                                                                                                    I D
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                                                                          )                                                        A p r il 3 0 , 1 9 9 9
J   O H N T H E D F O R D D A Y ,                                         )            S h e lb y C o u n ty C ir c u it C o u r t
                                                                          )            N o . 5 1 6 8 4 R .D .                  C e c il C r o w s o n , J r .
       P la in tiff/A p p e lla n t.                                      )                                                 A p p e lla te C o u r t C le r k
                                                                          )
V    S .                                                                  )             C .A . N o . 0 2 A 0 1 - 9 8 0 5 - C V - 0 0 1 4 1
                                                                          )
V    IC I M A R T H A D A Y G A T E W O O D ,                             )
                                                                          )
       D e fe n d a n t/A p p e lle e .                                   )
                                                                          )
_   _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _   _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

F r o m th e C ir c u it C o u r t o f S h e lb y C o u n ty a t M e m p h is .
H o n o r a b le J a m e s F . R u s se ll, J u d g e



V a le r ie T . C o r d e r , M e m p h is , T e n n e s se e
A tto rn e y fo r P la in tiff/A p p e lla n t.


L a w r e n c e W . K e r n , M e m p h is , T e n n e s se e
A tto r n e y fo r D e fe n d a n t/A p p e lle e .



O P IN IO N F IL E D :

R E V E R S E D A N D R E M A N D E D


                                                                          F A R M E R , J .

C R A W F O R D , P .J ., W .S .: ( C o n c u rs )
H I G H E R S , J .: ( C o n c u rs )
               This appeal involves a dispute between Plaintiff John Thedford Day and Defendant

Vici Martha Day Gatewood regarding Mr. Day’s obligation to pay child support for the benefit of

Sean, the parties’ adult son. Mr. Day and Mrs. Gatewood were divorced in November of 1976, when

Sean was almost seven years of age. Consistent with the terms of the parties’ marital dissolution

agreement, the trial court granted custody of Sean to Mrs. Gatewood and ordered Mr. Day to pay

child support in the amount of $150.00 per month. In June of 1984, when Sean was fifteen years of

age, Mrs. Gatewood filed a petition to increase the amount of Mr. Day’s child support obligation.

By consent, the trial court entered an order providing that Mr. Day would pay $250.00 per month

in child support until Sean reached the age of majority. On January 9, 1987, Sean reached the age

of majority. Thereafter on April 25, 1987, Sean was involved in an automobile accident. Despite

the injuries received as a result of this accident, Sean graduated from high school in May of 1987.



               In May of 1989, when Sean was twenty years of age, Mrs. Gatewood filed a petition

seeking a continuation of Mr. Day’s child support obligation. In support of this petition, Mrs.

Gatewood alleged that Sean had sustained severe brain damage as a result of the aforementioned

automobile accident, rendering him totally disabled and unable to support or care for himself. Mrs.

Gatewood’s petition was dismissed by voluntary non-suit in December of 1989. In May of 1993,

when Sean was twenty-four years of age, Mrs. Gatewood filed a petition requesting a declaration that

Sean was incapable of adequately supporting himself and requiring the continuation of Mr. Day’s

child support obligation. By consent, the trial court subsequently entered an order stating that Sean

was unable to support himself and providing that Mr. Day would pay $50.00 per week as child

support. Finally, in July of 1997 when Sean was twenty-eight years of age, Mr. Day filed a petition

asking the trial court to terminate his child support obligation. In support of this petition, Mr. Day

alleged that Sean was no longer completely and totally handicapped and was able to work and

contribute to his own support. After a hearing on the matter, the trial court denied Mr. Day’s petition

to terminate child support. This appeal followed.



               On appeal, Mr. Day’s position is that the trial court did not have subject matter

jurisdiction to entertain Mrs. Gatewood’s 1993 petition for continuation of child support and that,

consequently, the consent order requiring him to pay $50.00 per week as child support is void and

unenforceable. The concept of subject matter jurisdiction, as opposed to territorial jurisdiction,
involves the court’s authority to hear a particular type of case. See Meighan v. U.S. Sprint

Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Landers v. Jones, 872 S.W.2d 674, 675

(Tenn. 1994); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988),

overruled on other grounds by Five Star Express, Inc. v. Davis, 866 S.W.2d 944, 950 (Tenn. 1993).

Subject matter jurisdiction can only be conferred by statute or constitution. See Landers, 872

S.W.2d at 675; Turpin, 761 S.W.2d at 297; Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). The

issue of subject matter jurisdiction is not waivable and thus may be raised at any time, regardless of

whether any objection to the assertion of jurisdiction was made at the trial court level. See State ex

rel. Dep’t of Social Servs., 736 S.W.2d 84, 85 n.2 (Tenn. 1987); Scales v. Winston, 760 S.W.2d 952,

953 (Tenn. App. 1988). Any order entered by a court without subject matter jurisdiction is a nullity

and is therefore unenforceable. See Scales, 760 S.W.2d at 953; Ward v. Lovell, 113 S.W.2d 759,

760 (Tenn. App. 1937).



               In the instant case, the parties do not dispute that the trial court had subject matter

jurisdiction at the time of its original order requiring Mr. Day to pay child support. Such orders are

expressly authorized by sections 36-5-101 and 36-6-101 of the Tennessee Code Annotated, which

provide in pertinent part as follows:



               Whether the marriage is dissolved absolutely, or a perpetual or
               temporary separation is decreed, the court may make an order and
               decree for the suitable support and maintenance of either spouse by
               the other spouse, or out of either spouse’s property, and of the
               children, or any of them, by either spouse or out of such spouse’s
               property, according to the nature of the case and the circumstances of
               the parties, the order or decree to remain in the court’s control;



Tenn. Code Ann. § 36-5-101 (a)(1) (Supp. 1998).



               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, and the court may decree that suitable support be made
               by the natural parents or those who stand in the place of the natural
               parents by adoption. 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.



Tenn. Code Ann. § 36-6-101 (a)(1) (Supp. 1998). Under these provisions, the divorce court’s

jurisdiction is continuous, allowing for modification of the court’s original order. See Tenn. Code

Ann. § 36-5-101 (a)(1) (Supp. 1998)(“the order or decree to remain in the court’s control”); Tenn.

Code Ann. § 36-6-101(a)(1) (Supp. 1998)(“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.”). See also

Tenn. Code Ann. § 36-6-101(b) (Supp. 1998)(“Jurisdiction to modify or alter such decree shall

remain in the exclusive control of the court which issued such decree.”).



                          The provisions cited above authorize the divorce court to order support for a “child,”

“minor child,” “children,” or “minor children” of the parties. See Tenn. Code Ann. § 36-5-101(a)(1)

(Supp. 1998); Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998). Under Tennessee’s domestic

relations statutes, the terms “child” and “children” refer to “any person or persons under eighteen

(18) years of age.” Tenn. Code Ann. § 36-1-102(11) (Supp. 1998). Throughout the Tennessee Code

Annotated, with two exceptions,1 the term “minor” also refers to a person who has not yet attained

eighteen years of age. See, e.g., Tenn. Code Ann. § 1-3-105(1) (Supp. 1998). Thus, the express

language of the aforementioned statutes suggests that the divorce court’s authority to order child

support is limited to cases in which the parties’ child or children are under the age of eighteen. In

the instant case, Sean was twenty-four years of age on the date that Mrs. Gatewood filed her 1993

petition requesting continuation of Mr. Day’s child support obligation. Consequently, Mr. Day

argues that the trial court did not have authority to approve the parties’ subsequent consent order that

required him to pay $50.00 per week as child support for Sean.



                          As a general rule, the legal duty of a parent to support his or her child terminates

when the child reaches the age of majority. See, e.g., Barnhill v. Barnhill, 826 S.W.2d 443, 451

(Tenn. App. 1991)(citing Parker v. Parker, 497 S.W.2d 572, 575 (Tenn. 1973); Whitt v. Whitt, 490


              1
                 T h e a g e o f m a j o r ity f o r p u r p o s e s o f p u r c h a s in g , c o n s u m in g , p o s s e s s i n g , o r tr a n s p o r tin g
a   lc o h o l ic b e v e r a g e s is tw e n t y - o n e y e a r s o f a g e . S e e T e n n . C o d e A n n . § 1 - 3 - 1 0 5 ( 1 ) ( S u p p . 1 9 9 8 ) ;
T    e n n . C o d e A n n . § 1 - 3 - 1 1 3 ( b ) (S u p p . 1 9 9 8 ) . A d d itio n a lly , u n d e r th e T e n n e s s e e U n i f o r m
T    ra n s fe rs to M in o rs A c t, th e te rm “ m in o r” re fe rs to “ a n in d iv id u a l w h o h a s n o t a tta in e d tw e n ty -
o   n e (2 1 ) y e a r s o f a g e , a lth o u g h th e m in o r m a y a lr e a d y b e o f le g a l a g e .” T e n n . C o d e A n n . § 3 5 - 7 -
2   0 2 (1 1 ) (1 9 9 6 ).
S.W.2d 159, 160 (Tenn. 1973)). The courts of this state have recognized an exception to this rule,

however, where the child becomes disabled during minority and consequently is incapable of earning

a living. In Sayne v. Sayne, 284 S.W.2d 309 (Tenn. App. 1955), the trial court ordered Mr. Sayne

to pay child support for Irene, his twenty-seven year old daughter who had been disabled since

childhood. See id. at 310. On appeal, this Court first concluded that, even though Irene had reached

the age of majority, the trial court retained subject matter jurisdiction to address the issue of child

support. See id. at 311. This conclusion was based solely on the court’s finding that there was no

statutory authority in Tennessee expressly or implicitly limiting the trial court’s authority to award

support for adult children. See id. The court then discussed the majority approach as follows:



               Generally, when a child arrives at the age of majority the parent is no
               longer under legal obligation to support him, but where a child is of
               weak body or mind, unable to care for itself after coming of age, and
               remains unmarried and in the parents’ home, it has been held that the
               parental rights and duties remain practically unchanged, and that the
               parent’s duty to support the child continues as before. The obligation
               to support such a child ceases only when the necessity for the support
               ceases.



Id. (quoting 39 Am. Jur. 630). Joining the majority of jurisdictions, the court held that, under the

circumstances with which it was presented, the trial court properly required Mr. Sayne to contribute

to Irene’s support. See id. at 312. This Court has recognized the exception established by Sayne

on several subsequent occasions. See Smith v. Smith, No. 03A01-9410-GS-00391, 1995 WL

140763, at *1 (Tenn. App. Sept. 25, 1995); Mingle v. Mingle, No. 01A01-9305-CH-00197, 1993

WL 377609, at *2 (Tenn. App. Sept. 24, 1993); Burks v. Burks, No. 6, 1991 WL 12846, at *4 n.2

(Tenn. App. Feb. 8, 1991); Barnhill, 826 S.W.2d at 451 n.4; Stevens v. Raymond, 773 S.W.2d 935,

938 (Tenn. App. 1989); Hodge v. Hodge, No. 753, 1988 WL 55729, at *1 (Tenn. App. June 2,

1988).



               The Eastern section of this Court has recently considered two separate cases involving

issues similar to those presented in the case at bar. In Kilby v. Kilby, No. 03A019712-CH00549,

1999 WL 76065 (Tenn. App. Jan. 28, 1999), the parties’ 1994 divorce decree provided for joint

custody of Shannon, the parties’ minor child. See id. at *1. As the result of a stroke suffered during

infancy, Shannon was blind, mentally retarded, and required constant care. See id. In 1995, after
the child’s eighteenth birthday, Mrs. Kilby filed a petition with the divorce court seeking full custody

of Shannon. See id. at *2. In his response, Mr. Kilby also sought sole custody of Shannon but

questioned whether the divorce court had authority to enter an order regarding the custody of a

handicapped adult child. See id. Determining that it did, in fact, have this authority, the trial court

placed Shannon in the sole custody of Mrs. Kilby and ordered Mr. Kilby to pay support for his adult

child. See id. On appeal, this Court reversed the ruling of the trial court, holding as follows:



                       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[s], 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.



Id. at *5-6.



                Similarly, in Scott v. Scott, No. 03A01-9708-CH-00305, 1999 WL 39506 (Tenn.

App. Jan. 29, 1999), the parties were divorced in 1978 when their daughter Rebecca, who is mentally

retarded, was only one and one-half years old. See id. at *1. The parties’ divorce decree granted

custody of Rebecca to the child’s paternal grandparents. See id. In 1997, when Rebecca was twenty

years of age, Mrs. Scott filed a petition seeking custody of her adult child. See id. Mr. Scott and

the child’s paternal grandparents filed a motion to dismiss, arguing that the child custody statutes

were inapplicable to Rebecca because she was a legal adult. See id. Additionally, the paternal

grandparents filed a petition seeking to be appointed as Rebecca’s co-conservators. See id. The trial

court granted the motion to dismiss, holding that the proper avenue through which to address

Rebecca’s needs was a conservatorship proceeding rather than a custody action. See id. On appeal,

the Eastern section of this Court upheld the ruling of the trial court. See id. at *4.



                Consistent with Kilby and Scott, we find nothing in Tennessee’s domestic relations

statutes authorizing a divorce court to exercise continuing jurisdiction over a child who is over
eighteen years of age.2 We recognize that this finding is inconsistent with Sayne insofar as the

Sayne court stated as follows:



                                  [A]fter conferring upon the court the power to control custody “as the
                                  welfare and interest of the child may demand,” the court is given the
                                  broad power to decree that the father make suitable payments for the
                                  child’s support. Nothing in the statute, either expressly or by
                                  implication, limits this power to children under [the age of majority].
                                  Instead, it couples custody and support, giving rise to an inference
                                  that wherever custody must be awarded to one of the parties, as here,
                                  the power of the court to fix an allowance for support exists.



Sayne, 284 S.W.2d at 311. However, this conclusion of the Sayne court completely ignores the

actual language of the statute being construed. This provision authorized the court to order support

for “a minor child or minor children.” Tenn. Code Ann. § 8454 (1934), superseded by Tenn. Code

Ann. § 36-828 (1955), superseded by Tenn. Code Ann. § 36-6-101 (1979). Thus, we respectfully

disagree with the court’s conclusion that the statute did not implicitly limit the power of the trial

court to order support for an adult child.



                                  Based on the foregoing, we find that the trial court in the instant case was without

subject matter jurisdiction when it entertained Mrs. Gatewood’s 1993 petition for continuation of

Mr. Day’s obligation to pay child support. Consequently, we agree with Mr. Day that the consent

order subsequently entered by the trial court is void and unenforceable. Like the court in Scott, we

think that Tennessee’s conservatorship statutes3 provide an appropriate avenue for addressing the

needs of the parties’ adult child. If a court having jurisdiction in conservatorship proceedings4

determines that Sean is in need of a conservator, the individual appointed as his conservator may




                      2
                         W e n o te , h o w e v e r    , th a t u n d e r th   e T en n essee            g u a r d i a n s h ip s ta t u t e s , th e    d u ty o f p a r e n ts to
s   u p p    o      rt th e ir c h ild c o n tin u    e s a fte r th e c h     ild ’s e ig h te e      n th b irth d a y if th e c h ild is               s till in h ig h
s   c h o    o      l. T h is c o n tin u e d d u       ty e n d s w h e n     th e c h ild g r a       d u a te s fro m h ig h s c h o o l o           r w h e n th e c la s s o f
w     h ic     h      th e c h ild w a s a m e m          b e r o n h is o r   h e r e ig h t e e n   th b irth d a y g r a d u a te s fro m                h ig h s c h o o l,
w     h ic      h   e v e r o c c u rs firs t. S e     e T e n n . C o d e      A n n . § 3 4 -1      1 -1 0 2 (b ) (1 9 9 6 ).
                      3
             S e e T e n n . C o d e A n n . § § 3 4 -1 1 -1 0 1 to -1 3 1 (1 9 9 6 & S u p p . 1 9 9 8 ); T e n n . C o d e A n n . § §
3 4 -1 3 -1 0 1 to -1 0 9 (1 9 9 6 & S u p p . 1 9 9 8 ).
                      4
               A n a c t i o n f o r t h e a p p o i n t m e n t o f a c o n s e rv a to r m a y b e c o m m e n c e d b y th e f i l i n g o f a
p e t itio n in a c o u r t w ith p r o b a te ju r is d ic tio n o r in a n y o t h e r c o u r t o f re c o r d in t h e a l le g e d d is a b le d
p e r s o n ’ s c o u n ty o f r e s id e n c e . S e e T e n n . C o d e A n n . § 3 4 - 1 3 - 1 0 1 ( 1 9 9 6 ) .
then request an order requiring Mr. Day and/or Mrs. Gatewood to contribute to Sean’s support.5



                           For the reasons stated above, we reverse the ruling of the trial court and remand for

further proceeding consistent with this opinion. Costs on appeal are assessed to Mrs. Gatewood, for

which execution may issue if necessary.



                                                                                      ____________________________________
                                                                                      FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
HIGHERS, J. (Concurs)




            5
               A lth o u   g h w e r e c o g n iz e th e p o s s ib i lity t h a t a c o n s e rv a t o r m a y b e a p p o in t e d a t s o m e p o in t
in th e f u tu r e , w       e m a k e n o f in d in g r e g a r d in g w h e t h e r S e a n is im p a i r e d , h a n d i c a p p e d , o r in n e e d o f
a s s is ta n c e in m     a n a g in g h is f in a n c ia l a ff a ir s . A d d itio n a lly , w e m a k e n o f in d in g r e g a r d in g
w h e th e r, u n d e r       th e e x c e p ti o n e s ta b l i s h e d b y S a y n e , S e a n i s e n t i t l e d t o r e c e iv e c o u r t o r d e r e d
s u p p o rt fr o m M         r. D a y a n d /o r M rs . G a te w o o d . R a th e r, th e s e q u e s tio n s m u s t firs t b e c o n s id e re d in
a n y p r o c e e d in g    s w h ic h m ig h t o c c u r s u b s e q u e n t to th is o p in io n .
