            IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE
                                                          FILED
                                                             June 4, 1999
MARY JEAN BREWER,                        )
                                         )                Cecil Crowson, Jr.
      Plaintiff/Appellant,               )               Appellate Court Clerk
                                         )   Appeal No.
                                         )   01-A-01-9710-CH-00611
VS.                                      )
                                         )   Rutherford Chancery
                                         )   No. 95DR-493
EDWARD LELON BREWER, JR.,                )
                                         )
      Defendant/Appellee.                )


   APPEALED FROM THE CHANCERY COURT OF RUTHERFORD COUNTY
                AT MURFREESBORO, TENNESSEE

          THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR




JERRY SCOTT
JOHN KEA
SCOTT & KEA
110 City Center Building
100 East Vine Street
Murfreesboro, Tennessee 37133-1216
      Attorney for Plaintiff/Appellant

JIM WISEMAN
WISEMAN & SCHNEIDER
131 North Church Street
Murfreesboro, Tennessee 37130
      Attorney for Defendant/Appellee




                             REVERSED AND REMANDED




                                                   BEN H. CANTRELL,
                                                   PRESIDING JUDGE, M.S.

CONCUR:
CAIN, J.
COTTRELL, J.

                                OPINION
              This case tests the power of the trial court to order an adult, slightly

handicapped child to visit his father. The Chancery Court of Rutherford County held

that it was the duty of the court to require the visitation. We hold that under the

circumstances of this case the court exceeded its jurisdiction.



                                           I.



              Edward Lelon Brewer, Jr. and Mary Jean Brewer married on August 26,

1972. They had two children, Shaun and Ryan. Both children were adults when the

parties divorced on June 3, 1996. Shaun Brewer is borderline to mildly retarded. He

continued to live with his mother, and the parties agreed that he needed support

beyond the age of eighteen. The marital dissolution agreement provided that Mr.

Brewer would pay Ms. Brewer $552 a month as long as Shaun resided in her home

as a dependent.



              The agreement also provided that Mr. Brewer would have liberal

visitation rights with Shaun and that neither party would try to estrange the child from

the other or try to hamper the free and natural development of the love and respect

of the child for the other party.



              In March of 1997 Mr. Brewer filed a petition for contempt alleging that

Ms. Brewer had refused to let Shaun visit with him and that she, by various means,

had hindered the development of a relationship between Shaun and himself.

Although Shaun was not a party, his preference became an issue, and the proof

showed that he did not wish to visit his father. Nevertheless, the court set an

elaborate visitation schedule upon the following finding:



                    In this case, the Court must recognize its duty to
              provide for the custody of the young man, to require the
              payment of support, and to require the establishment of
              a schedule for visitation. The Court appreciates the

                                         -2-
              desire of Shaun to make his own decisions as to whether
              he will visit and when he will visit. He must understand,
              however, that it is the duty of the Court to require him to
              visit with his father, just as it is the duty of the Court to
              require Shaun’s father to pay child support to Shaun’s
              mother, and to require Shaun’s mother to house and care
              for Shaun as a custodial parent. A part of being a
              responsible adult is compliance with the law and the
              orders of the Court. Visitation schedules are arranged in
              a number of cases where parties have been unable to
              work out such matters among themselves. The Court
              must recognize that in order to arrange visitation
              schedules, particularly in this case, three or more adults
              must arrange their schedules, which perhaps they have
              been unable to do consistently. While Shaun has his own
              schedule, the Court is mindful of the fact that Mrs. Brewer
              does likewise, and Mr. Brewer does similarly.



               The court also declined to hold Ms. Brewer in contempt.



               Shaun himself moved for relief from the order and Ms. Brewer filed a

notice of appeal. We stayed the appeal to allow the lower court to make Shaun a

party, and to rule on his motion for relief from the judgment. The lower court allowed

Shaun to intervene, and ordered that he be examined to determine his current mental

condition. The court received the examiners’ reports, but denied any relief from the

order of visitation.



                                           II.



               Under the common law, children shed the disabilities of minority at age

twenty-one. See 42 Am. Jur. 2d Infants § 3. The age of majority is however, subject

to change by the legislature, and in 1971 Tennessee lowered the age of majority to

eighteen. The Act provides:



               (a)   Notwithstanding any laws to the contrary, any
               person who is eighteen (18) years of age or older shall
               have the same rights, duties, and responsibilities as a
               person who is twenty-one (21) years of age, except as
               provided in subsection (b) relative to the rights to
               purchase, possess, transport, and consume alcoholic

                                          -3-
             beverages, wine, or beer as those terms are defined in
             title 57.

Tenn. Code Ann. § 1-3-113(a).



             The enactment of this statute completely emancipated those over

eighteen years from the control of their parents. Nichols v. Atnip, 844 S.W.2d 655,

659 (Tenn. App. 1992). Emancipation occurs even though the child continues to live

with his or her parents. Glover v. Glover, 319 S.W.2d 238, 243 (Tenn. App. 1958).

“[A] person who has reached his majority is entitled to the management of his own

affairs and to the enjoyment of civic rights.” 42 Am. Jur. 2d Infants § 3. Among the

rights enjoyed by all adult citizens are the freedom of association, Roberts v. United

States Jaycees, 468 U.S. 609 (1984), the freedom to travel, Dunn v. Blumstein, 405

U.S. 330 (1972), and -- in Tennessee, perhaps the most fundamental of all -- the right

to be free from governmental interference, the celebrated right to be let alone. Davis

v. Davis, 842 S.W.2d 588, 599 (Tenn. 1992).



             The chancellor sought to avoid those general laws by finding that Shaun

was disabled and that Mr. Brewer had a continuing duty of support. Shaun’s disability,

however, does not prevent him from “making major decisions in his life such as when

and under what conditions he would visit with parents or friends,” according to one

evaluation. Another evaluation found him to have “a relative calm, assured approach

to problem-solving; short-term memory and attention; the ability to focus or

concentrate; an ability to comprehend and reason out practical or social situations; a

sensitivity toward others; an ability to look after his personal needs . . . and

appropriate use of manners.” He is currently employed and is on a waiting list for

acceptance in a group home.



              The rights of association to which we have referred may be forfeited by

criminal conduct, or regulated to promote a compelling state interest, Campbell v.



                                        -4-
Sundquist, 926 S.W.2d 250, 262 (Tenn. App. 1966), but we know of no authority to

support the deprivation of these rights on the basis of “borderline” or “mild” retardation.

The only cases we have found on the subject hold to the contrary. In Schmidt v.

Schmidt, 459 A.2d 421 (Pa. Super. 1983), the Court decided a case involving a victim

of Down’s Syndrome whose mental age ranged between four and a half and eight.

The Court held that an order compelling her to visit her father could not stand against

her constitutional rights. The Court said:



              Kimberly Schmidt is chronologically an adult. She has not
              been adjudicated incompetent. Her mental limitations do
              not compel the conclusion that she lacks capacity to make
              rational decisions regarding parental preferences.
              Because she is an adult she enjoys many of the same
              rights and privileges enjoyed by other adult citizens.
              These include a constitutionally protected freedom of
              choice to make certain basic decisions regarding
              marriage, procreation, family life and privacy. See, e.g.:
              Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
              (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31
              L.Ed.2d 551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92
              S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v.
              Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
              (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625,
              67 L.Ed. 1042 (1923). This freedom of choice, it would
              seem, should include the same right which an adult has
              to refuse to visit a parent. In the absence of an
              adjudication of incompetency, a handicapped adult should
              not be deprived of the freedom to make for himself or
              herself the same family related decisions which other
              adults enjoy. Such a person has the same needs as
              other adults for social approval, respect and privacy, as
              well as freedom to make important decisions regarding
              personal preferences and associates.

459 A.2d at 422-23. See also, Walker v. Walker, 523 A.2d 782 (Pa. Super. 1987).



              We agree with the Pennsylvania Court’s assessment of the rights of

adults -- even mildly retarded adults -- to make choices about their associations. We

do not mean, however, to place too much emphasis on the effect of an adjudication

of incompetency. The appointment of a conservator or a personal representative

might be made for any number of reasons that do not go to the individual’s right to

have his choices respected. See Title 34, Tenn. Code Ann. Such an adjudication


                                           -5-
would only be one factor to consider in deciding whether an adult had lost the

fundamental right to be let alone.



                 Finally, the argument is made that Mr. Brewer’s right to have Shaun visit

him is derived from Mr. Brewer’s payment of child support. Mr. Brewer, however,

voluntarily assumed that obligation in the marital dissolution agreement, and we know

of no authority establishing a linkage between the obligation to support an adult child

and the right to invoke the power of the state to force an adult child to visit the obligor

parent. Again, the only cases dealing with the subject seem to run against any such

linkage. See Fernald v. Fernald, 302 A.2d 470 (Pa. Super. 1973) and Schmidt v.

Schmidt, 459 A.2d 421 (Pa. Super. 1983)



                                             III.



                 Ms. Brewer also asserts that the lower court’s order placed

impermissible burdens on her. Since we have held that the court did not have the

power to order Shaun to visit his father, the burdens of which she complains have

been considerably mitigated. We take no position on the remaining parts of the lower

court’s order.



                 The judgment of the court below ordering Shaun Brewer to visit with his

father is reversed. Remand the cause to the Chancery Court of Rutherford County

for further proceedings. Tax the costs on appeal to the appellee.




                                                    ______________________________
                                                    BEN H. CANTRELL,
                                                    PRESIDING JUDGE, M.S.




                                            -6-
CONCUR:




_____________________________
WILLIAM B. CAIN, JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




                                -7-
