                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      May 18, 2005 Session

                 LINDA SMALLWOOD, ET AL. v. JESSICA MANN

                  Direct Appeal from the Juvenile Court for Gibson County
                            No. 7197    Christy R. Little, Judge



                      No. W2004-02574-COA-R3-JV - Filed July 19, 2005


This appeal arises from a petition to establish visitation filed by the paternal grandparents on behalf
of themselves and the father of the minor child. Following a hearing, the juvenile court entered an
order wherein it found that the grandparents had failed to establish the statutory requirements for
grandparent visitation. The juvenile court granted the father shared parenting time. However, the
order provided that, if the father was unable to exercise his visitation for one full month due to his
service in the military, the grandparents were granted the power to exercise the father’s visitation for
the last full weekend of any such calendar month. From this order, the mother appeals. For reasons
stated herein, we reverse in part, affirm in part, and remand the judgment of the juvenile court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in part;
                            Affirmed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

William D. Bowen, Milan, Tennessee, for the appellant, Jessica Mann.

Mark L. Agee and Jason C. Scott, Trenton, Tennessee for the appellees, Linda Smallwood and
William Smallwood on behalf of John Smallwood.

                                              OPINION

                                                   I.

       On January 18, 2000, Caleb Neal Mann (“Caleb” or the “Child”) was born out of wedlock
to Respondent/Appellant Jessica Mann (“Ms. Mann” or “Mother”). Pursuant to an agreed parentage
order entered by the juvenile court on August 31, 2001, Co-Petitioner/Appellee John Smallwood
(“Mr. Smallwood” or “Father”) was declared to be the biological father of Caleb.1 A visitation
schedule was not established in the agreed parentage order.

        This matter originally began after Father executed a durable power of attorney in favor of Co-
Petitioner/Appellee Linda Smallwood (“Grandmother”), which, among other things, purportedly
granted Grandmother the authority to bring legal actions in Father’s name. At the end of 2002 or
the beginning of 2003, Father began a four (4) year commitment with the United States Navy. In
March of 2003, acting under the power of attorney, Grandmother filed her pro se Petition for
Visitation, requesting visitation rights for Father, as well as for herself and her husband, Co-
Petitioner/Appellee William Smallwood (“Grandfather,” or collectively with Grandmother, the
“Grandparents” or the “Smallwoods”). Without conducting a formal hearing, the juvenile court
entered an order granting Father standard visitation. In addition, the juvenile court ordered that the
Grandparents were allowed to exercise Father’s visitation while he was deployed with the armed
forces. From that order, Mother filed a Rule 10 application for extraordinary appeal, which this
Court granted. By order, we subsequently reversed the juvenile court’s order and remanded the case
for further proceedings. Additionally, we disqualified the juvenile court judge from further
proceedings. The Tennessee Supreme Court subsequently assigned the Honorable Christy R. Little,
Juvenile Court Judge of Madison County, to preside over this matter to its conclusion.

        Subsequently, the Smallwoods retained counsel. Through counsel, on August 6, 2003, the
Smallwoods filed their Motion to Set Specific Visitation. The matter was heard on March 15, 2004.2
At the conclusion of the trial, the juvenile court entered an order finding that the statutory
requirements for grandparent visitation had not been met, thus effectively denying the Grandparents’
request for visitation. The juvenile court then granted Father shared parenting time. However, in
its order, the court provided that, if Father was unable to exercise his visitation for a period of one
calendar month, the Grandparents would be entitled to exercise his visitation for the last full
weekend of any such calendar month.

       From the order of the juvenile court, Mother appeals and presents, as we perceive them, the
following issues for our review:

        (1)        Whether the juvenile court’s order awarded visitation rights to the
                   Grandparents, and

        (2)        If the lower court’s order in fact awarded the Grandparents visitation rights,
                   whether the juvenile court lacked subject matter jurisdiction to order such
                   visitation rights.



        1
            Pursuant to the same order, Caleb’s last name was changed to Mann-Smallwood.

        2
        At the time of the hearing, Father was approximately one and one-half (1½) years into his four (4) year
commitment with the United States Navy.

                                                        -2-
For the reasons stated more fully herein, we reverse in part and affirm in part the order of the
juvenile court.

                                                  II.

        Mother’s primary argument is two-fold. First, Mother asserts that the provision of the order,
wherein the juvenile court effectively awarded the Grandparents contingent visitation rights, was an
invalid granting of such rights, in view of the court’s express finding that “the statutory requirements
for independent grandparents visitation ha[d] not been met.” Next, Mother insists that the juvenile
court lacked subject matter jurisdiction to address the issue of grandparent visitation.

        The Smallwoods, on the other hand, argue that the juvenile court’s order was not an award
of grandparent visitation, but rather was an award of specific visitation for Father. Essentially, the
Smallwoods contend that the order provided the Grandparents with no enforceable rights
independent of Father’s rights of visitation. Therefore, so the argument goes, the juvenile court
merely “assigned” Father’s rights of visitation in the event he was unable to exercise those rights.
The Smallwoods insist that “grandparent visitation” is not the issue in this case, and, therefore the
statutes governing grandparents’ visitation rights are not applicable. See Tenn. Code Ann. §§ 36-6-
306 to -307 (Supp. 2004). Rather, the Smallwoods contend that section 36-6-301 of the Tennessee
Code provides the juvenile court with authority to order that members of Father’s family shall be
entitled to exercise his visitation in order to “enable the child and the non-custodial parent to
maintain a parent-child relationship. . . .” Tenn. Code Ann. § 36-6-301 (2001).

        This matter was tried by the juvenile court sitting without a jury. Consequently, insofar as
the lower court’s decision rests on findings of fact, our standard of review is de novo upon the record
with a presumption of correctness, unless the evidence preponderates against those findings. Tenn.
R. App. P. 13(d) (2004); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). “To the extent that
the determination of the issues rests on statutory construction, they present questions of law.”
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)).
We review the trial court’s conclusions on questions of law de novo, with no presumption of
correctness. Tenn. R. App. P. 13(d).

         Before addressing the issue of subject matter jurisdiction, we must necessarily determine
whether the court’s order in fact awarded grandparent visitation or whether, as the Smallwoods
contend, the award was simply one of “standard” visitation rights. The first finding in the juvenile
court’s order was that the Grandparents had failed to establish the statutory requirements for
“independent” grandparent visitation. Accordingly, the lower court “denied” the petition for
“independent” grandparent visitation. The Grandparents have not appealed this finding. Therefore,
we conclude that the evidence failed to meet one or both of the prongs required for grandparent
visitation. See Tenn. Code Ann. §§ 36-6-306 to -307 (“substantial harm to the child” and “best
interests”). However, notwithstanding the express finding that the Grandparents had failed to
establish the elements required for visitation, the juvenile court ordered that the Grandparents would
be entitled to visitation upon the contingency of Father being unable to exercise his visitation for one


                                                  -3-
full month. While we are certainly sympathetic to the positions of Father and the Grandparents, we
are unable to find authority for the action of the juvenile court. We conclude that the action taken
by the juvenile court was indeed an award of grandparents’ visitation rights. Therefore, such an
order granting visitation rights to the Grandparents may not stand in the face of an express finding
that the statutory requirements for granting such a petition had not been met.

         Furthermore, we do not agree with the Smallwoods’ strained reading of section 36-6-301 of
the Tennessee Code. Section 36-6-301 provides authority for the court to award visitation to a non-
custodial parent, not a minor child’s grandparents. Tenn. Code Ann. § 36-6-301. Visitation rights
of grandparents are governed by sections 36-6-302, -306 and -307 of the Tennessee Code. If we
were to affirm the juvenile court’s award of grandparent visitation in this case, we would be setting
a precedent that trial courts may use section 36-6-301 to circumvent the grandparents’ visitation
rights statutes. Such a holding would also present the problem of determining where to draw the line
when a court, in effect, assigns visitation rights. While we are cognizant of the difficulties imposed
upon non-custodial parents when actively serving in the armed forces, this Court is not in the
position to provide a manner by which to circumvent the grandparents’ visitation rights statutes.
Rather, such an action is the province of the Tennessee legislature.

         Finally, we conclude that the juvenile court lacked subject matter jurisdiction to grant
visitation rights to the Grandparents. The juvenile court, as a tribunal created by statute, “can
exercise such jurisdiction and powers only as have been conferred on [it] by the statute creating [it].”
Hyatt v. Bomar, 358 S.W.2d 295, 296 (Tenn. 1962) (quoting 43 C.J.S. § 6). Effective July 1, 2003,
sections 37-1-103 and 37-1-104 of the Tennessee Code, the statutes which define the subject matter
jurisdiction of the juvenile courts, were amended. See Tenn. Code Ann. §§ 37-1-103 to -104 (Supp.
2004). Under the July 1, 2003 amendments, the juvenile courts were no longer given exclusive
jurisdiction over paternity cases, as they were under the former version of section 37-1-103(a)(2).
See id. § 37-1-103(a)(2) (2001). Rather, under the amended section 37-1-104(f), the juvenile courts
are given concurrent jurisdiction with the circuit and chancery courts to hear paternity cases and “to
determine any custody, visitation, support, education or other issues regarding the care and control
of children born out of wedlock.” Id. § 37-1-104(f) (Supp. 2004). None of the amendments to the
juvenile courts’ jurisdictional statutes make mention of the visitation rights of grandparents.
However, it is particularly illuminating that, on the same day that the above amendments were
enacted, July 1, 2003, section 36-6-306 was amended to clarify which courts have jurisdiction to hear
matters concerning grandparent visitation. Id. § 36-6-306 (Supp. 2004). Beginning July 1, 2003,
section 36-6-306 provided that petitions for grandparent visitation shall be presented to the circuit
or chancery courts, rather than to “a court of competent jurisdiction,” as the statute previously
provided. Tenn. Code Ann. § 36-6-306 (2001), amended by Tenn. Code Ann. § 36-6-306 (Supp.
2004). Therefore, beginning July 1, 2003, juvenile courts could no longer arguably exercise
jurisdiction over matters of grandparent visitation, as the circuit and chancery courts, by statute,
became the sole tribunals for resolution of these controversies.

       Based upon the record before us, the present action to establish visitation was filed on August
6, 2003, over one month after the effective date of the above-mentioned jurisdictional amendments.


                                                  -4-
Insofar as the juvenile court’s order attempts to provide for grandparent visitation, we conclude that
the juvenile court lacked subject matter jurisdiction, and such action is, therefore, unenforceable.
Accordingly, we reverse in part the portion of the juvenile court’s order that granted the
Grandparents visitation rights. All other provisions of the juvenile court’s order are affirmed.

                                                  III.

        For the foregoing reasons, the order of the juvenile court is reversed in part, affirmed in part,
and remanded for any further proceedings consistent with this opinion. Costs of this appeal are taxed
to the Appellees Linda and William Smallwood, for which execution may issue if necessary.



                                                         ____________________________________
                                                         DAVID R. FARMER, JUDGE




                                                  -5-
