Alber v. Nolle

Decision Date04 May 1982
Docket NumberNo. 5323,5323
Citation645 P.2d 456,98 N.M. 100,1982 NMCA 85
PartiesFred ALBER, individually, and as father and next friend of Carole Alber, a minor, Plaintiff-Appellee, Cross-Appellant, v. Monika NOLLE, Horst Nolle, and Paula Nolle, Defendants-Appellants, Cross-Appellees.
CourtCourt of Appeals of New Mexico
Elias N. Quintana, Jr., Albuquerque, for defendants-appellants, cross-appellees
OPINION

WOOD, Judge.

This appeal involves the parental liability section of the Children's Code as that statute was worded in 1979. Plaintiff was awarded damages against the defendant parents. Defendants appeal and plaintiff cross appeals. We group the issues under four headings: (1) liability; (2) constitutionality; (3) damages; and (4) attorney fees.

The trial court found that on November 2, 1979, Monika Nolle violently attacked Carole Alber without provocation; Monika threw Carole to the ground, held her down, and beat her about the face and head with her fists. Substantial evidence supports this finding. Plaintiff sued the parents of Monika, both under the parental liability statute and under the common law. The trial court denied relief under the common law claim. See Ross v. Souter, 81 N.M. 181, 464 P.2d 911 (Ct.App.1970); Annot., 54 A.L.R.3d 974 (1974). There is no appellate issue as to the common law claim. Plaintiff's recovery is based solely on the statute. See Lamb v. Randall, 95 N.M. 35, 618 P.2d 379 (Ct.App.1980); Ross v. Souter, supra.

Liability

The legislative approach to parental liability for damages caused by the child appears in the following statutes. Laws 1957, ch. 199; Laws 1959, ch. 237; Laws 1965, ch. 275; Laws 1972, ch. 97, § 44; Laws 1973, ch. 125; Laws 1977, ch. 76; Laws 1981, ch. 36, § 33. Generally speaking, the Legislature, in these statutes, has made recovery available to more plaintiffs, has broadened the type of damages for which there might be a recovery, and increased the amount of damages recoverable.

Monika's battery of Carole occurred in 1979; the amendment to the statute in 1981 is not applicable. When, hereinafter, we refer to the 1981 law, it is only for the purpose of illustrating legislative intent. Also, when we refer to the statute as it existed prior to the applicable statute, it is for the purpose of illustrating legislative intent.

The various amendments, repeals and reenactments to be found in the above-cited session laws show a legislative intent to change the law. State ex rel. Bird v. Apodaca, 91 N.M. 279, 573 P.2d 213 (1977); Stang v. Hertz Corporation, 81 N.M. 69, 463 P.2d 45 (Ct.App.1969), aff'd, 81 N.M. 348, 467 P.2d 14 (1970).

The applicable statute was enacted in 1977. The portion of the statute pertinent to the liability issue is Laws 1977, ch. 76, § 1A. It reads:

A. Any person may recover damages not to exceed two thousand five hundred dollars ($2,500) in a civil action in a court or tribunal of competent jurisdiction from the parent, guardian or custodian of a child when the child has maliciously or willfully injured a person or damaged or destroyed property, real or personal, belonging to the person bringing the action.

The requirement of "malicious" or "willful" injury or damage has been a requirement since the first statute in 1957. Defendants claim that plaintiff failed to prove that Monika's battery of Carole was either malicious or willful. We disagree. The trial court found the attack was willful and malicious. Testimony describing the attack, which showed the attack was unprovoked and violent, is substantial evidence sustaining the trial court's finding. See Ortega v. Montoya, 97 N.M. 159, 637 P.2d 841 (1981); Potomac Insurance Company v. Torres, 75 N.M. 129, 401 P.2d 308 (1965).

Prior to the 1972 law, the statute required that the child be an unemancipated minor under the age of eighteen years. Age and lack of emancipation have not been specifically referred to in the statutory section imposing parental liability since enactment of the 1972 law. The absence of a specific reference did not, however, remove these two items as conditions for imposing parental liability.

The 1972 law enacted the parental liability section as a part of the Children's Code; that Code, Laws 1972, ch. 97, § 3(A), defined "child" as an individual less than eighteen years old. See §§ 32-1-3A and 32-1-46, N.M.S.A.1978 (1981 Repl.Pamph.). The undisputed evidence was that Monika reached her eighteenth birthday on December 17, 1979; thus she was a "child" under the parental liability statute when she attacked Carole.

"Emancipation as between parent and child is the severance of the parental relationship so far as legal rights and liabilities are concerned." Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967). If a child is emancipated, the parental liability statute would not apply. The trial court found that, at the time of the attack, Monika was not emancipated from her parents. Defendants do not challenge the sufficiency of the evidence to support this finding. Even if a challenge had been made, under the evidence and Fevig v. Fevig, 90 N.M. 51, 559 P.2d 839 (1977), the challenge would not have succeeded.

Prior to the 1965 law, for parental liability, the minor involved must have been living with the parents. The 1965 law dropped the "living with" requirement and substituted a requirement that the parents have custody and control of the minor. When the parental liability statute was enacted, in 1972, as a part of the Children's Code, the "custody and control" requirement was omitted. This omission continued until the 1981 law which restored the requirement of custody and control. See § 32-1-46, supra.

Defendants contend that they may not be held liable under the statute as it existed in 1979 in the absence of an opportunity to exercise custody and control of a minor. Defendants rely on the following from Potomac Insurance Company v. Torres, supra:

Our statute constitutes a legislative recognition of the moral duty owed by a parent to exercise reasonable care so as to control his minor child and prevent him from maliciously or willfully damaging the property of another. This duty is imposed primarily because the parent has the ability or at least the opportunity to exercise such control * * *.

The statute involved in Potomac Insurance Company, supra, was the pre-1965 statute that required the minor to be living with the parents. The context of the above quotation is that the minor was living with the parents and, thus, the parents were afforded the opportunity to control the minor. Potomac Insurance Company, supra, is not helpful in determining whether the statute, applicable in this case, requires the parents to have custody and control of the child before the parents may be held liable.

The legislative history answers defendants' contention. The 1965 law required the parents to have custody and control of the child. The 1972 law removed that requirement. The applicable statute does not contain the requirement. The 1981 law restored the requirement of custody and control. This history shows a legislative intent. The statute applicable to this case did not require the parents to have custody and control of the child in order to be held liable. All that was required for parental liability under the applicable statute was a child (unemancipated and under eighteen years of age) whose malicious or willful activity resulted in damage.

Constitutionality

Although a named defendant, Monika was not served and did not appear in the case either as a party or as a witness. The liability judgment is against the parents only. Defendants claim "the statute is unconstitutional as applied to Horst and Paula Nolle, since there was no finding of liability on the part of Monika Nolle." Defendants argue that a finding of liability as to them, without a determination of Monika's liability, deprived them of the opportunity to present defenses such as self-defense or provocation.

Neither the statute nor the trial court barred the parents from presenting evidence that Monika's actions were neither malicious nor willful. There is no "as applied" issue concerning the presentation of evidence.

The statute does not require, as a predicate for parental liability, that the child be first found liable. The essence of this contention is that due process is violated if parents are held liable without a determination of the child's liability. Such goes to the validity of the statute. There is no "as applied" due process issue in this case independent of the claim that as "enacted" the statute violates due process.

Defendants contend the parental liability statute is unconstitutional if parents may be held liable even if they had no opportunity to control the child. We point out the factual basis for this contention and then identify and discuss the constitutional claim.

The trial court found that Monika was an habitual runaway. The testimony was that Monika had consistently run away from her parents' home for over two years before the attack on Carole. The parents, on a fairly regular basis, paid for transportation for Monika to return home, but she would not stay.

The trial court refused to find that Monika was not under the control or custody of the parents. Such a finding was unnecessary, under the statute, for the parents to be held liable. The evidence, however, was that Monika was not under the parents' control. The testimony shows that "nothing worked"-counseling, reporting Monika to juvenile authorities, time in the detention home. At one point, Monika was sent to live in the home of a psychologist; Monika ran away. A witness who ran a "crisis" home for runaway teenagers testified that Monika felt her home was too strict, that Monika wanted to come and go as she pleased. Monika moved into the home of a boyfriend in October or November, 1980, and was living there at the time of the attack on...

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