Facts: Sabrina and Erica were married in Washington, DC in 2014. Upon marriage, Sabrina took Erica’s last name.

During the marriage and by agreement of the parties, Sabrina became pregnant through artificial insemination by an anonymous donor. She gave birth to Child in January of 2015. The child also shares Erica’s last name. Erica is not listed on Child’s birth certificate and did not adopt Child.

Five months after Child’s birth, the U.S. Supreme Court held that same-sex couples have a constitutional right to marry.

In February 2016, Sabrina filed for divorce in Tennessee. Her complaint alleged: “No biological child of the Defendant [was] born to this marriage.”

In Erica’s answer, she alleged that she is a legal parent of Child under Tennessee Code Annotated § 68-3-306, which says:

A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.

Erica argued the statute should be read in a gender-neutral fashion.

Both parties filed cross motions for partial summary judgment regarding the constitutionality of Tennessee Code Annotated § 68-3-306.

The Attorney General intervened to defend the constitutionality of the statute.

Fifty three Republican members of the Tennessee Legislature also sought to intervene in the divorce. Sabrina and Erica both opposed allowing the Legislators to intervene. The trial court denied their motion to intervene.

The Attorney General admitted that construing Tennessee Code Annotated § 68-3-306 literally would run afoul of the U.S. Supreme Court opinion by differentiating between male and female spouses of women who have given birth because of artificial insemination.

The Attorney General asserted that the statute could be read constitutionally, however, by employing Tennessee Code Annotated § 1-3-104(b), which says that when interpreting state statutes, “[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” The Attorney General argued that Tennessee Code Annotated § 68-3-306 “must be construed so as to apply to a child born as a result of artificial insemination during a same-sex marriage and that, as applied, the statute is constitutional.”

The Legislators again tried to intervene in this divorce between two individuals, and again they failed. While the divorce was pending, the legislature was considering a bill to repeal Tennessee Code Annotated § 68-3-306. It, too, failed.

Eventually the parties agreed on all issues. The trial court found that Erica is a legal parent of Child and approved their agreement, including a parenting plan that granted parenting time to Erica.

Unbelievably, the Legislators appealed from this final judgment of divorce. Neither Sabrina nor Erica appealed.

On Appeal: The Court of Appeals dismissed the Republican Legislators’ appeal.

The role of Tennessee courts is limited to deciding issues that qualify as justiciable, meaning issues that place some real interest in dispute and are not merely theoretical or abstract.

To be justiciable, an issue must be cognizable not only at the inception of the litigation but also throughout its pendency.

A moot case is one that has lost its justiciability either by court decision, acts of the parties, or some other reason occurring after commencement of the case. A case will be moot if it no longer serves to provide some judicial relief to the prevailing party.

Tennessee law recognizes a few exceptional circumstances that make it appropriate to address the merits of an issue notwithstanding its ostensible mootness:

• when the issue is of great public importance or affects the administration of justice;
• when the challenged conduct is capable of repetition and evades judicial review;
• when the primary dispute is moot but collateral consequences persist; and
• when a litigant has voluntarily ceased the challenged conduct.

After finding that none of the exceptions to the mootness doctrine applied, the Court told the Legislators to go pound sand:

[W]e note that it is a suit for divorce involving the grounds for divorce, the division of marital property, and parenting issues with regard to a minor child. These issues were fully determined when the trial court entered its final judgment of divorce . . . . Both Sabrina and Erica have accepted the trial court’s final judgment and have not appealed the judgment. . . .

No issues with regard to the divorce suit remain for determination. Thus, the case has lost its justiciability by court decision and the acts of the parties who chose not to appeal the trial court’s decision[,] all of which render the case now moot. . . . While the [Legislators] apparently wish to force the actual parties to the suit, Sabrina and Erica, to continue their dispute in court, those parties have chosen not to do so. Put simply, the divorce case is over, and there is no lawsuit left in which to intervene.

The appeal was dismissed, and the costs of appeal were taxed to the Republican Legislators.

K.O.’s Comment: (1) It’s interesting that, in a footnote, the Court says, “We refer to the parties by their first names only in this Opinion simply to avoid confusion with no disrespect intended.” We’ll probably see more of this in same-sex cases where gender-related terms like “husband” and “wife” might not apply.

(2) In oral argument, counsel for the ex-spouses complained about the extraordinary legal fees their clients incurred as a result of the Legislators’ actions and this appeal. One can only imagine the burdens they’ve had to bear, financial and otherwise.

(3) The depths to which certain of our elected representatives are willing to sink continues to amaze. Just when you think it can’t get any worse, they do something like this. They bring shame to themselves and all who allow them to remain in office.

Witt v. Witt (Tennessee Court of Appeals, Eastern Section, March 27, 2018).