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Wallis v. Smith

Citation. 22 Ill.2001-NMCA-017, 130 N.M. 214, 22 P.3d 682
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Brief Fact Summary.

Peter Wallis (Plaintiff) brought an action against Kellie Ray Smith (Defendant) for money damages, asserting fraud, breach of contract, conversion and prima facie tort. The district court dismissed for failure to state a claim upon which relief can be granted. Plaintiff appeals.

Synopsis of Rule of Law.

Public policy does not permit a court to require a mother to indemnify the father for child support.


Plaintiff and Defendant were in a consensual sexual relationship. They discussed contraceptive techniques and agreed that Defendant would use birth control pills. They also agreed that their sexual intimacy would only last as long as Defendant continued taking the birth control pills because Plaintiff made it clear he did not want to be a father. Plaintiff relied on Defendant to use birth control and took no precautions himself. Defendant stopped taking the birth control pills but never informed the Plaintiff of her decision. Their relationship continued and Defendant became pregnant and subsequently gave birth to a baby girl. Plaintiff alleges that he suffered and continues to suffer substantial economic injury as a result of his unintended fatherhood because New Mexico requires him to pay child support. He further alleges that he has been injured by Defendant’s conduct and requests compensatory and punitive damages from her. The district court determined that public policy p
rohibited the relief sought by Plaintiff and dismissed with prejudice. Plaintiff appeals.


Whether public policy would permit the court to require Defendant to indemnify Plaintiff for child support?


No. Judgment is affirmed and imposition of sanctions is reversed.
The Uniform Parentage Act imposes strict liability for child support without regard to which parent bears the greater responsibility for the child’s being. Making each parent financially responsible for the children sheds light on a strong public policy that makes the interests of the child most important. The notion that a father of an illegitimate child could decline to accept the financial responsibility has been abandoned. The state exercises a parens patriae authority to protect the best interests of the child by ensuring that parents provide an adequate standard of support. No jurisdiction recognizes contraceptive fraud or breach of promise to practice birth control as a ground for changing a natural parent’s objection to pay child support. Individuals are entitled to privacy, a person’s choice whether or not to use contraceptives fits into this sphere of privacy.
A parent cannot opt out of the financial consequences of his or her sexual relationship just because they were unintended. Plaintiff was free and able to practice contraceptive techniques on his own. However he decided to rely on the Defendant for birth control. Plaintiff tries to claim that Defendant’s liability is based on the fact that Defendant lied to him. However, not all misrepresentations are actionable. Therefore, the actions cannot be used to recoup the financial obligations of raising a child. Plaintiff’s legal claims against Defendant are not cognizable because they are against public policy and the imposition of sanctions for discovery violations was improper.
Concurrence. The Concurrence is concerned that the majority opinion suggests that the court accepts Plaintiff’s argument that Plaintiff’s alleged commitment to practice birth control gave rise to a legally enforceable right. Sex partners are strictly liable for the support of any child they produce by voluntarily engaged in sexual activity.


The discovery violations for which the sanctions were reversed were for Plaintiff’s lengthy interrogatories to provide the names of all of Defendant’s medical providers. The court granted a motion made by Defendant to quash the subpoenas and sanctioned Plaintiff with a $1,000.00 fine for seeking the materials by a subpoena after Defendant had raised a privilege objection. The court of appeals held that a party may not use a rule to pursue discovery of privileged materials that is the subject of ongoing discovery that has not been resolved by the parties or decided by the

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