{ "id": 731554, "name": "Decatur D. SPARKS, an infant, By and Through his next friend and Mother, Deborah Sparks HALEY, Petitioner-Appellant, v. Larry D. SPARKS, Respondent-Appellee", "name_abbreviation": "Sparks ex rel. Haley v. Sparks", "decision_date": "1992-12-17", "docket_number": "No. 13759", "first_page": "764", "last_page": "767", "citations": [ { "type": "official", "cite": "114 N.M. 764" }, { "type": "parallel", "cite": "845 P.2d 858" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "658 P.2d 8", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "33 Wash.App. 629", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1819304 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/wash-app/33/0629-01" ] }, { "cite": "805 P.2d 1200", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10383406 ], "opinion_index": 0, "case_paths": [ "/p2d/805/1200-01" ] }, { "cite": "92 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557079 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0162-01" ] }, { "cite": "536 S.W.2d 944", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10146489, 10146564 ], "pin_cites": [ { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/sw2d/536/0944-01", "/sw2d/536/0944-02" ] }, { "cite": "530 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "125 Ill.Dec. 148", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1988, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "175 Ill.App.3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554285 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0679-01" ] }, { "cite": "189 N.Y.S. 62", "category": "reporters:state", "reporter": "N.Y.S.", "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "115 Misc. 84", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 745556 ], "opinion_index": 0, "case_paths": [ "/misc/115/0084-01" ] }, { "cite": "570 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1991, "pin_cites": [ { "page": "862" }, { "page": "862-63" }, { "page": "863-64" } ], "opinion_index": 0 }, { "cite": "156 Ill.Dec. 385", "category": "reporters:state", "reporter": "Ill. Dec.", "weight": 4, "year": 1991, "pin_cites": [ { "page": "386" }, { "page": "386-87" }, { "page": "387-88" } ], "opinion_index": 0 }, { "cite": "211 Ill.App.3d 1045", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528628 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/1045-01" ] }, { "cite": "811 S.W.2d 859", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9990951 ], "weight": 3, "pin_cites": [ { "page": "861" }, { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/sw2d/811/0859-01" ] }, { "cite": "434 N.W.2d 596", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10668371 ], "weight": 2, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nw2d/434/0596-01" ] } ], "analysis": { "cardinality": 489, "char_count": 9600, "ocr_confidence": 0.762, "pagerank": { "raw": 4.417441169658951e-08, "percentile": 0.2768377615837835 }, "sha256": "c9727ac0bb4d1506c9e0731f0a076d03eae05b875dcc7dfe22791e1772dab9d7", "simhash": "1:79873f46a2228a1f", "word_count": 1578 }, "last_updated": "2023-07-14T15:11:13.314573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and CHAVEZ, JJ., concur." ], "parties": [ "Decatur D. SPARKS, an infant, By and Through his next friend and Mother, Deborah Sparks HALEY, Petitioner-Appellant, v. Larry D. SPARKS, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nDeborah Sparks Haley (Mother) brought this action as next friend for her ten-year-old son (Child), seeking to establish that her former husband, Larry Sparks (Sparks), was not Child\u2019s father. Sparks filed a motion to dismiss and a motion to appoint a guardian ad litem. The district court denied the motion to appoint a guardian ad litem and did not expressly rule on the motion to dismiss, but later ruled that the divorce action between Mother and Sparks was res judicata and collateral estoppel as to the issue of paternity, and dismissed the action with prejudice. We hold that Mother was not the proper party to initiate this action as guardian ad litem and therefore the motion to dismiss should have been granted.\nFACTS.\nSparks and Mother were married on June 10, 1977. Child was born during the marriage, on December 28, 1980. Both Sparks and Mother acknowledged Sparks\u2019s paternity in a writing filed with the Vital Statistics Bureau of the State of New Mexico. Sparks and Mother were divorced in March 1989. In their property and custody agreement, the parties to the divorce proceeding (i.e., Mother and Sparks) represented to the court that the child was born \u201cof the marriage.\u201d A guardian ad litem was not appointed to represent Child in the divorce proceeding. Pursuant to their custody agreement and subsequent court order, Mother received custody of Child and Sparks paid child support and received visitation rights.\nIn April 1991, the district court gave Sparks sole custody and terminated child support to Mother. Sparks has publicly acknowledged Child as his own since birth. Sparks has also maintained a personal, financial, and custodial relationship with Child.\nSECTION 40-11-9 OF THE UNIFORM PARENTAGE ACT DOES NOT AUTHORIZE THIS SUIT.\nIn September 1991, Child, by and through Mother as \u201cnext friend,\u201d filed this action \u201cto establish the existence or nonexistence of the parent/child relationship\u201d between Child and Sparks, i.e., paternity. Mother asserts she has the authority to bring this action under NMSA 1978, Section 40-11-9 (Repl.Pamp.1989). This provision is part of New Mexico\u2019s Uniform Parentage Act, NMSA 1978, \u00a7\u00a7 40-11-1 to -23 (Repl.Pamp.1989) (the Act). Section 40-11-9 reads:\nThe child shall be made a party to the action. If he is a minor, he shall be represented by his general guardian or a guardian ad litem appointed by the court, or both. The court may align the parties.\nThere is an absolute prohibition against a parent representing the child in the uniform act. Unif. Parentage Act \u00a7 9, 9B U.L.A. 312 (1973). Although the New Mexico legislature did not adopt this absolute prohibition, it did adopt the requirement that the minor be represented by the general guardian or a guardian ad litem. There is no question in this case that Mother was not appointed to act as guardian ad litem. Sparks argues that Mother was also not the \u201cgeneral guardian\u201d under Section 40-11-9 and therefore lacked the capacity to initiate this action. We agree.\nA mother who was never appointed by the court may not be a proper \u201cgeneral guardian\u201d for purposes of a statute requiring that such a guardian represent a minor in legal proceedings. Shearer v. Coats, 434 N.W.2d 596 (S.D.1989). Certainly the mere allegation that the mother is the child\u2019s next friend does not make the mother the appropriate representative of the child in a paternity action. Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo.Ct.App.1991).\nThe Appellate Court of Illinois recently determined that a mother who did not have custody was not a \u201cgeneral guardian\u201d with standing to challenge her former husband\u2019s paternity under the Illinois Parentage Act. In re Marriage of Koenig, 211 Ill.App.3d 1045, 156 Ill.Dec. 385, 570 N.E.2d 861 (1991). In Koenig, Shirley and Harold Koenig were married in September 1984 and a daughter, Krista, was born in 1985. 156 Ill.Dec. at 386, 570 N.E.2d at 862. Shortly after the birth, Harold sought a dissolution of the marriage. During the dissolution proceedings, Shirley repeatedly referred to Krista as Harold\u2019s baby; a birth certificate indicating Harold as the father was also filed in the divorce proceedings. Id. The court entered a judgment based in part on an agreement of the parents which represented that Krista \u201c \u2018was born to this marriage.\u2019 \u201d Id. Custody was awarded to Harold, but both Harold and Shirley continued to file various pleadings regarding custody until Harold sought suspension of Shirley\u2019s visitation rights. Shortly thereafter, Shirley, as \u201c \u2018natural guardian,\u2019 \u201d filed a petition to \u201cdeclare the parentage\u201d of the child. Id. The trial court ruled that the mother lacked standing to bring the action. Id., 156 Ill.Dec. at 386-87, 570 N.E.2d at 862-63.\nIn Koenig, the Appellate Court of Illinois held that, since the divorce court had awarded custody to the father, the mother could not qualify as a \u201cgeneral guardian\u201d under Section 7 of the Illinois Parentage Act and therefore lacked standing to initiate the action, reasoning:\nThe [Illinois] Parentage Act also provides that \u201c[i]f any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court, * * *.\u201d (Ill.Rev.Stat. 1987, ch. 40, par. 2507(c).) The legislature has thereby limited a minor child\u2019s representative to either his or her general guardian or court appointed guardian ad litem. Although the Act does not itself define \u201cgeneral guardian,\u201d similar statutory provisions have been defined as \u201cthe guardian of the person, or of all the property of the ward * * * \u201d and, absent appointment by the court, does not include a minor\u2019s natural mother (Shearer v. Coats (S.D.1989), 434 N.W.2d 596, 598); \u201c * * * one appointed by the Supreme, or Surrogate\u2019s Court * * * \u201d (In re McGuire\u2019s Estate (1921), 115 Misc. 84, 189 N.Y.S. 62, 63); and \u201cone who has the general care and control of the person and estate of his ward.\u201d (Black\u2019s Law Dictionary 635 (5th ed.1979).) In the case sub judice, Shirley does not qualify as Krista\u2019s general guardian because Harold was given \u201cthe sole permanent care, custody, control and education of the minor child\u201d in the couple\u2019s divorce settlement and agreed judgment. Nor was Shirley appointed Krista\u2019s guardian ad litem. Under the statutory language and circumstances of this case, Shirley lacks standing to bring the paternity petition on Krista\u2019s behalf.\nKoenig, 156 Ill.Dec. at 387-88, 570 N.E.2d at 863-64.\nThe facts of Koenig are virtually indistinguishable from those before us. We agree with the Illinois court that if custody has been awarded to the party represented as the father in a divorce, the mother can no longer be considered a \u201cgeneral guardian.\u201d Since April 1991, when the district court granted custody of Child to Sparks, Mother has not been Child\u2019s \u201cgeneral guardian\u201d and thus, in the absence of her appointment as guardian ad litem, is not the proper party to initiate this action on behalf of Child. Moreover, a mother\u2019s opposition to a father\u2019s paternity could be financially and emotionally detrimental to the child. This creates an obvious conflict of interest which requires the appointment of someone else to represent the interests of the child in such a paternity suit. Majidi v. Palmer, 175 Ill.App.3d 679, 125 Ill.Dec. 148, 152, 530 N.E.2d 66, 70 (1988); Lechner, 811 S.W.2d at 861; J.M.L. v. C.L., 536 S.W.2d 944, 947 (Mo.Ct.App.1976). Mother was not a proper party to bring this suit on behalf of Child as \u201cnext friend.\u201d The suit should not have proceeded in the absence of a proper legal representative for Child and Sparks\u2019s motion to dismiss should have been granted without prejudice. See Lechner, 811 S.W.2d at 861; cf. Wasson v. Wasson, 92 N.M. 162, 584 P.2d 713 (Ct.App.1978) (plain error to proceed in termination of parental rights case when child not adequately represented). We must therefore reverse and remand for entry of an order of dismissal without prejudice.\nIT IS SO ORDERED.\nBIVINS and CHAVEZ, JJ., concur.\n. Section 9 of the uniform act provides:\nThe child shall be made a party to the action. If he is a minor he shall be represented by his general guardian or a guardian ad litem appointed by the court. The child\u2019s mother or father may not represent the child as guardian or otherwise. The court may appoint the [appropriate state agency] as guardian ad litem for the child. The natural mother, each man presumed to be the father under Section 4, and each man alleged to be the natural father, shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.\nUnder the language of the uniform act, a parent may not represent a minor child in a paternity proceeding. M.R.D. by P.D. and R.F.D. v. F.M., 805 P.2d 1200 (Colo.Ct.App.1991); In re Burley (Burley v. Johnson), 33 Wash.App. 629, 658 P.2d 8 (1983).\n. The Illinois Parentage Act, like New Mexico's Act, allows the child to be represented by a general guardian or guardian ad litem, but does not include the uniform act\u2019s absolute prohibition against a parent representing the child. See Ill.Rev.Stat. ch. 40, para. 2507(c) (1984) (Section 7).", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Robert S. Orlik, James F. McDowell, III, Clovis, for petitioner-appellant.", "Marion Ty Rutter, Clovis, for respondentappellee." ], "corrections": "", "head_matter": "845 P.2d 858\nDecatur D. SPARKS, an infant, By and Through his next friend and Mother, Deborah Sparks HALEY, Petitioner-Appellant, v. Larry D. SPARKS, Respondent-Appellee.\nNo. 13759.\nCourt of Appeals of New Mexico.\nDec. 17, 1992.\nRobert S. Orlik, James F. McDowell, III, Clovis, for petitioner-appellant.\nMarion Ty Rutter, Clovis, for respondentappellee." }, "file_name": "0764-01", "first_page_order": 798, "last_page_order": 801 }