Wallis v. Smith, 20,272.

• Decision Date: 01 March 2001
• Docket Number: No. 20,272.,20,272.
• Citation: 22 P.3d 682,2001 NMCA 17,130 N.M. 214
• Parties: Peter WALLIS, Plaintiff-Appellant, v. Kellie Rae SMITH, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

22 P.3d 682

130 N.M. 214

2001 NMCA 17

Peter WALLIS, Plaintiff-Appellant, v. Kellie Rae SMITH, Defendant-Appellee.

No. 20,272.

Court of Appeals of New Mexico.

March 1, 2001.

Certiorari Denied April 19, 2001.

Ashley Gauthier, Simone, Roberts & Weiss, P.A., Albuquerque, NM, for Appellant.

Paul J. Kennedy, Mary Y.C. Han, Albuquerque, NM, for Appellee.

Certiorari Denied, No. 26,857, April 19, 2001.

OPINION

BOSSON, Judge.

{1} Peter Wallis and Kellie Rae Smith were partners in a consensual sexual relationship. Allegedly, Smith misrepresented that she was practicing birth control when she was not, and Wallis unknowingly fathered her child. Wallis sued Smith for money damages, asserting four causes of action—fraud, breach of contract, conversion, and prima facie tort—that the district court dismissed for failure to state a claim upon which relief may be granted. Wallis appeals that dismissal as well as a court order imposing a $1,000 sanction for improper use of subpoena authority. We affirm the dismissal, holding that under these facts, the causes of action are not cognizable in New Mexico because they contravene the public policy of this state. We reverse the imposition of sanctions under the circumstances of this case.

BACKGROUND

{2} The following facts are taken from Wallis's complaint, which we must assume to be true for the purpose of determining whether a complaint states a viable claim for relief. See Padwa v. Hadley, 1999-NMCA-067, ¶ 8, 127 N.M. 416, 981 P.2d 1234

.

{3} Wallis and Smith began an intimate, sexual relationship some time before April 1997. They discussed contraceptive techniques and agreed that Smith would use birth control pills. Wallis and Smith further agreed that their sexual intimacy would last only as long as Smith continued to take birth control pills because Wallis made it clear that he did not want to father a child. Wallis participated in contraception only passively; he relied on Smith to use birth control and took no precautions himself.

{4} As time went by, Smith changed her mind. She chose to stop taking birth control pills, but never informed Wallis of her decision. Wallis continued their intimate relationship, and Smith became pregnant. Smith carried the fetus to term and gave birth to a normal, healthy girl on November 27, 1998.

{5} Wallis alleges that he has suffered, and will continue to suffer, substantial economic injury as a proximate result of his unintended fatherhood because New Mexico law requires him to pay child support for the next eighteen years. See NMSA 1978, § 40-11-15 (1997). Due to his statutory obligations, Wallis asserts that he has been injured by Smith's conduct, and requests compensatory and punitive damages from her. The district court determined that public policy prohibited the relief sought by Wallis, and dismissed the case with prejudice.

CONTRACEPTIVE FRAUD

{6} A motion to dismiss for failure to state a claim under Rule 1-012(B)(6) NMRA 2001 tests the legal sufficiency of the complaint, not the facts that support it. Environmental Improvement Div. v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983). Under Rule 1-012(B)(6), dismissal is proper when the law does not support the claim under any set of facts subject to proof. We review rulings on such motions de novo, accepting all well-pleaded factual allegations as true and resolving all doubts in favor of the sufficiency of the complaint. Padwa, 1999-NMCA-067, ¶ 8, 127 N.M. 416, 981 P.2d 1234. Therefore, appellate review affords us an opportunity to examine anew the legal sufficiency of Wallis's suit, and determine whether his allegations, if proven, would entitle him to the relief requested in a New Mexico court.

{7} At the onset of our discussion it is important to distinguish the factual allegations of this case from other kinds of related lawsuits, and thus underscore the limited reach of this opinion. Wallis's complaint is not about sexually-transmitted disease, e.g., McPherson v. McPherson, 712 A.2d 1043 (Me.1998),

nor does it concern the damages arising from an unwanted pregnancy that led to an abortion, e.g., Alice D. v. William M., 113 Misc.2d 940, 450 N.Y.S.2d 350 (Civ.Ct.1982), or an undesired pregnancy resulting in medical complications, e.g., Barbara A. v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr. 422 (Ct.App.1983). This case is not even brought to recover the expense of giving birth. E.g., Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415, 417 (1995); see also § 40-11-15(C) (providing recovery for the "reasonable expenses of the mother's pregnancy, birth and confinement"). Wallis's complaint is limited to compensatory damages for the "economic injury" of supporting a normal, healthy child.

{8} Although Wallis insists that he is not attempting to circumvent his child support obligations, we cannot agree. It is self-evident that he seeks to recover for the very financial loss caused him by the statutory obligation to pay child support. At oral argument when pressed by the Court to clarify what damages Wallis was seeking, his counsel stated that Wallis was seeking not punitive, but compensatory damages measured by his "out of pocket loss." Therefore, this case boils down to whether sound public policy would permit our courts to require Smith to indemnify Wallis for child support under the circumstances of this case.

{9} Our legislature has spoken to the public policy that governs the economic consequences of sexual relationships that produce children, and that policy is reflected in New Mexico child support laws. See NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 1997). In 1986, our legislature adopted, with minor revisions, the Uniform Parentage Act (UPA), which outlines the legal procedure to establish a parent-child relationship and the corresponding obligation of child support. See 1986 N.M. Laws, ch. 47, §§ 1-23; Unif. Parentage Act §§ 1-30, 9B U.L.A. 287 (West 1987). The UPA imposes a form of strict liability for child support, without regard to which parent bears the greater responsibility for the child's being. See Unif. Parentage Act § 15, 9B U.L.A. at 301-02. See generally Harry D. Krause, Illegitimacy: Law and Social Policy 79 (1971) (expressing the view held by a principal proponent and author of the UPA that men would assume individual responsibility in sexual relationships only when they risked incurring a substantial economic burden in the form of child support).

{10} Making each parent financially responsible for the conception and birth of children also illuminates a strong public policy that makes paramount the interests of the child. Our jurisprudence has abandoned the notion that the father of an "illegitimate" child could decline to accept the financial responsibility of raising that child. Compare Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) (per curiam)

(holding that children born out of wedlock are entitled to the same support rights as marital children under the Equal Protection Clause of the Fourteenth Amendment), and Stringer v. Dudoich, 92 N.M. 98, 99, 583 P.2d 462, 463 (1978) (holding that all children are entitled to support from each parent), with Wallace v. Blanchard, 26 N.M. 181, 191, 190 P. 1020, 1024 (1920) (holding that father of a child born out of wedlock has no duty of support). Currently, the state exercises its parens patriae authority to protect the best interests of all children by ensuring that the parents provide "an adequate standard of support." NMSA 1978, § 40-4-11.1(B)(1) (1995). Placing a duty of support on each parent has the added benefit of insulating the state from the possibility of bearing the financial burden for a child. See § 40-11-15(D). In our view, it is difficult to harmonize the legislative concern for the child, reflected in the immutable duty of parental support, with Wallis's effort in this lawsuit to shift financial responsibility for his child solely to the mother.

{11} New Mexico is not alone in its view of parental responsibility and the conflict created by lawsuits such as this. See Welzenbach v. Powers, 139 N.H. 688, 660 A.2d 1133, 1136 (1995) (holding that the public policy behind the right of child support "does not favor the extension of tort liability as the plaintiff suggests, but rather stands firmly against it"); Douglas R. v. Suzanne M., 127 Misc.2d 745, 487 N.Y.S.2d 244, 245 (Sup.Ct.1985) (holding that fraud and deceit actions would render support obligations "nugatory"). To our knowledge, no jurisdiction recognizes contraceptive fraud or breach of promise to practice birth control as a ground for adjusting a natural parent's obligation to pay child support. See Welzenbach, 660 A.2d at 1136 (child support obligation defeats claim); C.A.M. v. R.A.W., 237 N.J.Super. 532, 568 A.2d 556, 563 (1990) (claim disparages children); Stephen K. v. Roni L., 105 Cal.App.3d 640, 164 Cal.Rptr. 618, 621 (1980) (right to privacy trumps claim); Douglas R.,487 N.Y.S.2d at 245-46 (child support obligation defeats claim); Moorman v. Walker, 54 Wash.App. 461, 773 P.2d 887, 889 (1989) (claim disparages children). See generally Anne M. Payne, Annotation, Sexual Partner's Tort Liability to Other Partner for Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control Resulting in Pregnancy, 2 A.L.R.5th 301 (1992). Wallis relies primarily on Henson v. Sorrell, No. 02A01-9711-CV-00291, 1999 WL 5630 (Tenn.Ct.App. Jan.8, 1999), an opinion which is unreported in its own jurisdiction. Henson did not afford the relief Wallis seeks in this case. We thus reject the reasoning in Henson and find it wholly unpersuasive.

{12} Some courts have dismissed contraceptive fraud cases on the ground that the claims tread too far into the realm of an individual's privacy interests. Stephen K., 164 Cal.Rptr. at 619, 621. We agree that individuals are entitled a sphere of privacy into which courts should not tread. A person's choice whether or not to use contraceptives...