{ "id": 15757, "name": "Wanda PERRY, Petitioner-Appellee, v. Zollie Jeffrey WILLIAMS, Respondent-Appellant", "name_abbreviation": "Perry v. Williams", "decision_date": "2003-05-06", "docket_number": "No. 22,664", "first_page": "844", "last_page": "851", "citations": [ { "type": "official", "cite": "133 N.M. 844" }, { "type": "parallel", "cite": "70 P.3d 1283" }, { "type": "parallel", "cite": "2003-NMCA-084" } ], "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": "1997-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 322345 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 2-3" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0763-01" ] }, { "cite": "92 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557079 ], "weight": 5, "pin_cites": [ { "page": "164-65" }, { "page": "715-16" }, { "page": "163" }, { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0162-01" ] }, { "cite": "83 N.M. 610", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337509 ], "weight": 2, "pin_cites": [ { "page": "617" }, { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0610-01" ] }, { "cite": "77 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808916 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "720", "parenthetical": "citing Baca for the proposition that statutory beneficiary's contributory negligence bars recovery from wrongful death proceeds" }, { "page": "242", "parenthetical": "citing Baca for the proposition that statutory beneficiary's contributory negligence bars recovery from wrongful death proceeds" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0717-01" ] }, { "cite": "71 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348231 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "475", "parenthetical": "analyzing whether a mother's contributory negligence in the death of her son bars her from receiving her share of statutory benefits" }, { "page": "770", "parenthetical": "analyzing whether a mother's contributory negligence in the death of her son bars her from receiving her share of statutory benefits" } ], "opinion_index": 0, "case_paths": [ "/nm/71/0468-01" ] }, { "cite": "190 P. 1020", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "pin_cites": [ { "page": "1023", "parenthetical": "emphasis added and internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "26 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841584 ], "year": 1920, "pin_cites": [ { "page": "188", "parenthetical": "emphasis added and internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/26/0181-01" ] }, { "cite": "58 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587701 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "818" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0807-01" ] }, { "cite": "270 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "301 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564338 ], "opinion_index": 0, "case_paths": [ "/nc/301/0108-01" ] }, { "cite": "247 S.W. 213", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1923, "pin_cites": [ { "page": "214", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "213 Mo.App. 101", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1781676 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/mo-app/213/0101-01" ] }, { "cite": "2003-NMCA-030", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15831 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 33" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0319-01" ] }, { "cite": "115 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725397 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "283" }, { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0275-01" ] }, { "cite": "2001-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183145 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0304-01" ] }, { "cite": "113 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723272 ], "weight": 2, "pin_cites": [ { "page": "131" }, { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0129-01" ] }, { "cite": "117 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552772 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "351-54" }, { "page": "1357-60" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0346-01" ] }, { "cite": "771 F.Supp. 632", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3721003 ], "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/f-supp/771/0632-01" ] }, { "cite": "101 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586383 ], "weight": 2, "pin_cites": [ { "page": "544" }, { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0541-01" ] }, { "cite": "1973 WL 33957", "category": "reporters:specialty_west", "reporter": "WL", "year": 1973, "pin_cites": [ { "parenthetical": "footnotes omitted" } ], "opinion_index": 0 }, { "cite": "53 A.L.R.3d 566", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1973, "pin_cites": [ { "page": "569-70", "parenthetical": "footnotes omitted" } ], "opinion_index": 0 }, { "cite": "121 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566705 ], "weight": 2, "pin_cites": [ { "page": "627" }, { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0622-01" ] }, { "cite": "1996-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "1999-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106537 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0084-01" ] }, { "cite": "1997-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18473 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0296-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "100 N.M. 605", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588661 ], "weight": 6, "pin_cites": [ { "page": "609" }, { "page": "1342" }, { "page": "609" }, { "page": "1342" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0605-01" ] } ], "analysis": { "cardinality": 1256, "char_count": 27226, "ocr_confidence": 0.681, "pagerank": { "raw": 1.3369931826539305e-07, "percentile": 0.6303240073069897 }, "sha256": "a562db92a9a44a40590fba55bc937cb5334b32fb0f7afca10109382c59cc65d6", "simhash": "1:7ffb6ac67e801f34", "word_count": 4495 }, "last_updated": "2023-07-14T15:37:22.762722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: A. JOSEPH ALARID and JONATHAN B. SUTIN, Judges." ], "parties": [ "Wanda PERRY, Petitioner-Appellee, v. Zollie Jeffrey WILLIAMS, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nPICKARD, Judge.\n{1} This is an appeal of the trial court\u2019s determination that Appellant, Zollie Jeffrey Williams (Father), is barred from claiming the father\u2019s share of benefits pursuant to the Wrongful Death Act, NMSA 1978, \u00a7 41-2-3(D) (1882, as amended through 2001). We affirm the ruling of the trial court.\nFACTS AND PROCEDURAL HISTORY\n{2} This is a case with an unusual set of facts that proceeded through the trial court in an unusual way. The case began in June 2000, when Father was served with a summons and petition to terminate his parental rights fourteen years after his son had died. Father and Appellee, Wanda Perry (Mother), are the natural parents of Curtis, who died from leukemia at the University of New Mexico Hospital in April 1986. Pursuant to a wrongful death claim against the hospital, Mother obtained a settlement in May 2000, the net proceeds of which, totaling approximately $463,332, are at the heart of the dispute between Father and Mother.\n{3} Following this Court\u2019s suggestion in Dominguez v. Rogers, 100 N.M. 605, 609, 673 P.2d 1338, 1342 (Ct.App.1983), Mother petitioned the trial court to terminate Father\u2019s parental rights and later amended her petition to include a request for a declaration that Father had no statutory right to the settlement money or, in the alternative, for equitable apportionment of the settlement because of Father\u2019s abandonment and neglect of his son. In response, Father filed a motion pursuant to Rule 1-012(B)(6) NMRA 2003, stating that there was no basis in law to terminate his statutory right to benefits pursuant to the Wrongful Death Act. In an amended motion, he argued that termination of parental rights is not an appropriate action in which to distribute statutory benefits, and that a declaratory judgment or equitable apportionment was improper, because the Wrongful Death Act is the sole basis for distributing wrongful death benefits. He asserted that the Wrongful Death Act allowed no apportionment such as requested by Mother.\n{4} The trial court ordered the attorneys to file legal memoranda addressing whether a private party could move to terminate parental rights absent a pending adoption and later informed the attorneys that it would attempt to rule on the briefs before it held a hearing on the Rule 1-012(B)(6) motion. Father never filed an answer to Mother\u2019s petition because he was waiting for a ruling on his Rule 1-012(B)(6) motion. See Rule 1-012(A) (stating that service of a Rule 1-012(B) motion alters time for filing responsive pleading). However, the parties filed briefs in support of or opposition to the Rule 1-012(B)(6) motion, outlining their legal and factual arguments about the gravamen of the case: whether or not Father is entitled to statutory benefits pursuant to Section 41-2-3(D). The trial court issued a letter to the attorneys saying that the legal question to be decided was whether this Court\u2019s dicta in Dominguez would be adopted as a holding, and the factual question to be decided was whether Father abandoned his child. The trial court determined that discovery could proceed in anticipation of a hearing, which was held in August 2001.\n{5} After the hearing, the trial court issued a letter ruling. The court specifically found:\n3. Throughout Curtis\u2019 life and [his sister\u2019s] minority status, [Father] paid less than a total of $200 as child support, notwithstanding that he was brought before courts in New Mexico and California numerous time[s] and found to be able to pay and held to be in wilful non-compliance with court orders.\n4. From the date of divorce [in 1973] until Curtis\u2019 death in April 1986, the only time [Father] traveled to Albuquerque to visit the children was at the time of Curtis\u2019 death, even though his parents, the paternal grandparents (who did maintain contact with the children) were residents of Albuquerque.\n5. On one occasion the children and their mother traveled to California, where [Father] lived, to visit Disneyland, and while there, made contact with [Father]. On another occasion the paternal grandfather, who was a long-distance truck driver, took Curtis on a road trip to California, and while there, made contact with [Father]. Other than these visits, [Father] had no contact with Curtis from age two until just days before his death. Nor did [Father] telephone or write to Curtis, or even send gifts or cards. [Curtis\u2019 sister] was treated likewise.\n6.When Curtis was diagnosed with cancer in 1985, his mother arranged for [Father] to be informed. Curtis was hospitalized five times until his death in April 1986. During the first four hospitalizations, [Father] did not visit, did not write, did not call, did not send cards or gifts. Additionally, [Father] failed to cooperate in the necessary testing for a bone marrow transplant although he was asked to do so, and told he was one of only three possible donors (the other two being Curtis\u2019 mother and sister, neither of whom matched). Only upon being told that Curtis\u2019 death appeared imminent did [Father] travel to Albuquerque to visit just days or hours before the child died.\n{6} The trial court\u2019s letter ruled, pursuant to Dominguez, that\n(1) because [Father] utterly failed to meet the responsibilities of a father during Curtis Williams\u2019 lifetime, [Father] is equitably estopped from claiming that status in this or any court proceeding in his attempt to claim a share of the wrongful death benefits, and (2) because [Father] flagrantly violated court orders as to child support, both in New Mexico and California, [Father] is equitably estopped from seeking court assistance in his attempt to claim a share of the wrongful death benefits.\nThough the trial court did not actually terminate Father\u2019s parental rights, the court\u2019s letter did say:\nIf it is necessary as a matter of law to terminate [Father\u2019s] parental rights to prevent him from participating in Curtis Williams\u2019 wrongftd death benefits, his parental rights should be terminated.\nIf it is necessary as a matter of law to declare [Father] ineligible as a statutory beneficiary or recipient to prevent him from participating in Curtis Williams\u2019 wrongful death benefits, his status as a statutory beneficiary should be terminated.\nThe trial court then issued, an order and judgment denying Father\u2019s motions to dismiss pursuant to Rule 1-012(B)(6), incorporating in the order the findings and conclusions from its letter ruling. The trial court ordered, adjudged, and decreed that Father was barred from seeking any portion of the settlement and that Mother was entitled to the full amount.\n{7} Father appeals this ruling, arguing essentially that there is no basis in law for the trial court\u2019s ruling.\nDISCUSSION\n{8} Father argues that this case is purely a matter of interpreting and applying provisions of the Wrongful Death Act. He argues that we need only consider the facts of who the minor\u2019s parents are in order to determine how a settlement is distributed. Therefore, Father asserts, the trial court erred in considering factors such as abandonment and non-support in disqualifying him from receiving his statutory portion of the wrongful death settlement. He argues that the rights conferred in the Wrongful Death Act are statutory in nature, are in derogation of common law, and must be strictly construed, lest the courts intrude upon the province of the legislature. He also makes the related legal argument that posthumous termination of his parental rights is unsupported by any legal authority and cannot be proven under any set of facts, so his Rule 1-012(B)(6) motion should have been granted. Insofar as the trial court used the language of equitable estoppel in its letter ruling, Father argues that equitable estoppel was neither pleaded, tried, nor proved. Finally, Father argues that the trial court erred in failing to use the standard of proof of clear and convincing evidence explicitly in its ruling.\n{9} Mother contends that there are circumstances in which our common law can abrogate the Wrongful Death Act, and that the view expressed in Dominguez controls in this instance, particularly because the trial court determined that the facts showed \u201cclear and obvious physical, emotional, economic, and medical abandonment\u201d by Father. Mother does not defend the trial court\u2019s use of equitable estoppel language, arguing instead that the trial court can be affirmed if it is right for any reason. See, e.g., Meiboom v. Watson, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154. Mother also contends that clear and convincing evidence is not the standard, but if it is, the trial court\u2019s ruling was supported by clear and convincing evidence in that the trial court found the evidence to be \u201cclear and obvious,\u201d the evidence was undisputed, and Father does not challenge the factual findings in any event.\n{10} Our task in this case is to determine whether the language in Dominguez correctly states the law. In doing so, we strive to implement the Wrongful Death Act in the manner intended by the legislature. We do so against a backdrop of the New Mexico common law, as well as the common law and statutes from other jurisdictions. In addition, we have a wealth of recent statutory changes that express our legislature\u2019s view on the public policy issues raised by this case. Our holding that Dominguez is well supported and consistent with legislative intent is sufficient for us to affirm the trial court\u2019s ruling barring Father\u2019s recovery on the facts of this case, which are undisputed and unchallenged. Thus, we need not address in detail Father\u2019s arguments about equitable estoppel, clear and convincing evidence, or posthumous or non-statutory termination of parental rights.\n{11} In particular, this ease does not require us to reach the question of whether New Mexico law allows a private party to bring a petition to terminate parental rights to a deceased child. A formal termination of Father\u2019s parental rights is unnecessary because the trial court clearly had jurisdiction over Mother\u2019s amended petition pursuant to the Declaratory Judgment Act, NMSA 1978, \u00a7\u00a7 44-6-1 to -15 (1975), to declare Father\u2019s \u201crights, status or other legal relations\u201d arising under the Wrongful Death Act. Section 44-6^1. Because we are dealing with the extinguishment of Father\u2019s property interest in a statutory right of recovery that was not a traditional incident of the parent-child relationship, there is no reason to employ the heightened burden of proof applicable to formal termination of parental rights proceedings.\nStandard of Review\n{12} The issues raised by the parties in this case are primarily, if not exclusively, legal issues. We review legal issues de novo. Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, \u00b6 6, 124 N.M. 296, 949 P.2d 1193, aff'd in part, rev\u2019d in part on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197. To the extent that we review the trial court\u2019s findings and conclusions, we are deferential to facts found by the trial court, but review conclusions of law de novo. Strata Prod. Co. v. Mercury Exploration Co., 1996-NMSC-016, 121 N.M. 622, 627, 916 P.2d 822, 827.\nNationwide Backdrop\n{13} Among the states that have decided this issue, there is a consensus that it is bad policy to permit parents who have deserted or abandoned their children to recover for the wrongful death of those children.\nThe overwhelming weight of authority is that a parent\u2019s desertion or abandonment or failure to support his minor child precludes recovery of damages for the wrongful death of such child. In the majority of cases such result has been expressly provided for by statute, the sole inquiry being whether the exclusionary condition of desertion, abandonment, or failure to support existed. In the few cases where such result has been reached other than by the application of a statutory provision barring a parent\u2019s right of recovery on the grounds of desertion, abandonment, or failure to support, the courts have reasoned that the parent, by his conduct, had forfeited his right to the child\u2019s services and thus could not have suffered any pecuniary loss by reason of the death.\nEmile F. Short, Annotation, Parent\u2019s Desertion, Abandonment, or Failure to SuppoH Minor Child as Affecting Right or Measure of Recovery for Wrongful Death of Child, 53 A.L.R.3d 566, 569-70, 1973 WL 33957 (1973) (footnotes omitted).\nThe Statute and Legislative Intent\n{14} New Mexico\u2019s wrongful death statute is not like those found in the majority of cases in that it does not expressly provide that desertion, abandonment, or failure to support precludes recovery for wrongful death. Thus, Father argues that a strict, verbatim construction of Section 41-2-3 does not allow an examination into factors that would permit a court to bar a named beneficiary from receiving wrongful death benefits. He also argues that, as a general proposition, statutes cannot be abrogated by common law. See Patterson v. Globe Am. Cas. Co., 101 N.M. 541, 544, 685 P.2d 396, 399 (Ct.App.1984) (\u201c[Wjhen a right is created which did not exist at common law and for that right a remedy is by statute prescribed, the whole matter of right and remedy is within the statute and no part of either otherwise exists.\u201d), superseded by statute on other grounds as stated in Journal Publ\u2019g Co. v. Am. Home Assurance Co., 771 F.Supp. 632, 635 (S.D.N.Y.1991).\n{15} However, examination of the common law as it existed at the time of the legislature\u2019s enactment of the Wrongful Death Act casts grave doubt on the premise of Father\u2019s argument, i.e., that the Act clearly allows him to recover. In addition, we are to exercise caution when asked to read statutes literally. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 351-54, 871 P.2d 1352, 1357-60 (1994). Our aim in applying statutes is to ascertain and conform to what our legislature intended, and in doing so, we reject formalistic and mechanistic interpretations of statutes. See D'Avignon v. Graham, 113 N.M. 129, 131, 823 P.2d 929, 931 (Ct.App.1991). To the extent that Father relies on the legislature\u2019s inaction regarding the wrongful death statute over the years inter vening between Dominguez and now, we are reminded that \u201c \u2018[{legislative silence is at best a tenuous guide to determining legislative intent.\u2019 \u201d State Farm Mut. Auto. Ins. Co. v. Progressive Specialty Ins. Co., 2001-NMCA-101, \u00b6 17, 131 N.M. 304, 35 P.3d 309 (quoting Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993)). Moreover, for the reasons that follow, we think that such silence is more likely an indication that the legislature has no disagreement with the language in Dominguez. As we discuss in this opinion, the legislature has not seen fit to amend the Wrongful Death Act in the face of Supreme Court cases potentially narrowing beneficiary status by application of common law principles, and the legislature has passed a host of other statutes expressing a policy adverse to parents who desert, abandon, or fail to support their children. We believe that these actions are more telling and lead to our adoption of the dicta in Dominguez as our holding in this case.\nDominguez\n{16} In Dominguez, we stated that \u201c[p]roof of natural-parent status is not necessarily sufficient for recovery under the wrongful death statute.\u201d 100 N.M. at 609, 673 P.2d at 1342. Though Dominguez did not reach the issue of whether the father could recover under the Wrongful Death Act, we warned future litigants that this Court \u201cwould take a narrow view of a self-interested individual who chooses to assert a parental status only when it becomes financially profitable to him following the death of a small child.\u201d Id. We suggested that a personal representative in a wrongful death action may present evidence of abandonment and non-support, and even seek to terminate the father\u2019s parental rights, \u201cparticularly in light of the fact that the only remaining one is a right to recover money.\u201d Id. This Court reaffirmed that sentiment in a recent decision, In re Estate of Sumler, 2003-NMCA-030, \u00b6 33, 133 N.M. 319, 62 P.3d 776, when we stated that \u201c[w]e do not retreat from the sentiments expressed in Dominguez.\u201d In Sumler we followed the Dominguez language, but found no voluntary abandonment on the part of the father. Sumler, 2003-NMCA-030, \u00b6 33, 133 N.M. 319, 62 P.3d 776.\nCommon Law Underpinnings\n{17} Neither Dominguez nor Sumler contained any reasoned explanation of the language or sentiments expressed therein. Therefore, the question we must address in this ease is whether the language in those eases is soundly supported. We begin our analysis with an examination of the common law\u2019s treatment of parents who abandon their children. In our view, it is the common law, and not the Wrongful Death Act as argued by Father, that establishes the baseline for our analysis.\n{18} Under the common law, the right of a parent to the services of the child or the child\u2019s earnings was linked to the parent\u2019s actual support of the child. See 67A C.J.S. Parent & Child \u00a7 107 (1978); XXIX Cyclopedia of Law and Procedure, Parent and Child, \u00a7 (V)(D), at 1627-28 (1908). In Evans v. Kansas City Bridge Co., 213 Mo.App. 101, 247 S.W. 213 (1923), the court canvassed the authorities and said:\nAt common law, the father is entitled to the services and earnings of his minor children, because he is bound to support and educate them. The right grows out of the obligation and is correlative to it. When one ceases, the other ceases also____The right to the child\u2019s earnings arises out of the duty to support the child, and where the parent neglects that duty, or voluntarily releases his parental control to a third person, he loses the right to the child\u2019s earnings.\nId. at 214 (citations and internal quotation marks omitted). Similarly, in the more recent case of Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482, 490 (N.C.1980), the court cited a host of both older and more modem cases to a like effect.\n{19} In a case presenting the opposite factual pattern, i.e., a child seeking to enforce an agreement or decree requiring a father to keep in force a life insurance policy even though the father had consented to the child\u2019s adoption and no longer was required to support the child, our Supreme Court said, \u201c[a] parent\u2019s duty to support his child is interlocked with his right to enjoy and see to and know of the acceptance and use of the support furnished.\u201d In re Quantius\u2019 Will, 58 N.M. 807, 818, 277 P.2d 306, 313 (1954). Thus, too, \u201c[t]he right of the parents is not an absolute right of property, but is in the nature of a trust reposed in them, and is subject to their correlative duty to care for and protect the child; and the law secures their right only so long as they shall discharge their obligation.\u201d Wallace v. Blanchard, 26 N.M. 181, 188, 190 P. 1020, 1023 (1920) (emphasis added and internal quotation marks and citations omitted).\n{20} With one exception, our Wrongful Death Act has substantially been in its present form for over one hundred years. In 1939, the legislature amended the Act, adding the language that is at the heart of this case, which expressly provides that the surviving \u201cfather and mother\u201d of a deceased minor child can be the beneficiaries of an action for the child\u2019s wrongful death. 1939 N.M. Laws eh. 105, \u00a7 1. It is quite clear to us that the sentiments expressed in Dominguez and Sumler are well grounded in the legislative history of the Wrongful Death Act and in the common law principle that the rights of parents and children are interlocked and that a parent may lose his or her right to benefit from a child if that parent abandoned the child. We do not lightly assume that the legislature intended to alter this common law principle when it enacted the Wrongful Death Act. To the contrary, we believe that the legislature intended to incorporate this common law principle into the Act when it was passed.\nNew Mexico Public Policy\n{21} The sentiments of Dominguez and Sumler are also supported by current public policy in New Mexico, which \u201cdisfavors natural parents who do not acknowledge their responsibilities to their children.\u201d Sumler, 2003-NMCA-030, \u00b6 32, 133 N.M. 319, 62 P.3d 776. For example, the Support Enforcement Act outlines provisions to collect child support, including the withholding of income and the issuing of liens against real and personal property. NMSA 1978, \u00a7\u00a7 40-4A-1 to -19 (1985, as amended through 1997). The Support Enforcement Act also recognizes remedies provided by other laws, Section 4(MA-16, and imposes penalties for non-compliance, including fines and actions for contempt of court. Section 40-4A-11. The Parental Responsibility Act provides that persons not in compliance with judgments and orders relating to paternity and child support may not obtain business, occupational, driver\u2019s, and other licenses and may have a current license suspended for non-compliance. NMSA 1978, \u00a7\u00a7 40-5A-1 to -13 (1995, as amended through 1998). Our law also provides for agency procedures to order support or require work from persons owing past-due child support in the event the child is receiving state benefits. NMSA 1978, \u00a7 27-1-12 (1997). The Human Services Department may issue liens against gambling winnings of a parent owing child support payments. NMSA 1978, \u00a7 60-2E-61 (2002). The Probate Code prohibits a natural parent from inheriting through a child if that parent has not openly treated the child as the parent\u2019s own and has refused to support the child. NMSA 1978, \u00a7 45-2-114(0) (1993).\n{22} It is therefore readily seen that New Mexico does not look favorably upon parents who do not support their children, and it does not allow those parents to profit through probate from a child\u2019s death. Our sentiments expressed in Dominguez and Sumler, that would prevent a parent who failed to support the child during the child\u2019s life from benefitting from a wrongful death recovery, are in keeping with New Mexico\u2019s public policy, which seeks to ensure that all natural parents support their children, and punishes parents when they do not. Those sentiments are also in keeping with the policy expressed in the Probate Code which prevents a non-supporting parent from inheriting from an abandoned child.\n{23} Father argues that, by negative inference, the legislature\u2019s failure to amend the Wrongful Death Act to include a forfeiture provision similar to the one in the Probate Code suggests that the legislature did not intend to create such a provision. To the contrary, however, we believe that an inference of legislative acquiescence in our Dominguez decision is equally, if not more strongly, supported. Our examination of the common law underpinnings of our Dominguez decision above and our discussion of related New Mexico law below bears this out.\nRelated New Mexico Law\n{24} There are other instances in New Mexico when statutory wrongful death benefits have been determined by common law principles. Our Supreme Court has determined that contributory negligence of one of the beneficiaries under the Wrongful Death Act defeats the right of recovery to the extent of that party\u2019s share. See Baca v. Baca, 71 N.M. 468, 475, 379 P.2d 765, 770 (1963) (analyzing whether a mother\u2019s contributory negligence in the death of her son bars her from receiving her share of statutory benefits); see also Sanchez v. J. Barron Rice, Inc., 77 N.M. 717, 720, 427 P.2d 240, 242 (1967) (citing Baca for the proposition that statutory beneficiary\u2019s contributory negligence bars recovery from wrongful death proceeds); Latimer v. City of Clovis, 83 N.M. 610, 617, 495 P.2d 788, 795 (Ct.App.1972) (same).\n{25} In connection with this line of eases, we appreciate Father\u2019s argument that there is a distinction between application of ordinary contributory negligence principles to a specific type of negligence action, i.e. wrongful death, and Mother\u2019s argument here. Father claims that Mother is not merely applying ordinary negligence principles and is instead seeking to exclude a named class of beneficiary from the recovery, a result not contemplated by the Wrongful Death Act. However, we are not convinced that the end result should not be the same in both instances. Moreover, we are indeed convinced that Baca does stand for the proposition that the common law can aid in interpretation of statutes.\n{26} Another New Mexico case is instructive. In Wasson v. Wasson, 92 N.M. 162, 164-65, 584 P.2d 713, 715-16 (Ct.App.1978), this Court refused to terminate a father\u2019s parental rights even though he had abandoned his children because, in the event of his death, his children would have lost the right to inherit from his estate or recover wrongful death benefits. We determined that the duty of the courts in proceedings involving children is to protect their legal rights. Id. at 163, 584 P.2d at 714. However, we stated that, \u201c[i]f the rights of children were not divested, the trial court and this Court would favor a termination of the father\u2019s parental rights with the children.\u201d Id. Thus, as early as Wasson, our view was that where, as here, a child\u2019s rights did not have to be protected, a father does not necessarily have the right to benefit from his children if' he has abandoned them. Wasson\u2019s reasoning directly applies in a case like this one, where the rights of the child are not only divested, but are not even at issue, leaving only the father\u2019s right to collect wrongful death benefits.\n{27} In the face of these specific precedents, we are not convinced that Aranda v. Camacho, 1997-NMCA-010, \u00b6\u00b6 2-3, 122 N.M. 763, 931 P.2d 757, on which Father relies, precluded the trial court\u2019s reasoning or result. That case ruled that a husband who ran over his wife and pleaded guilty to vehicular homicide did not forfeit his rights as sole wrongful death beneficiary. Importantly, the statutes that may have precluded recovery in that ease applied only to intentional killings. Id. Furthermore, Aranda\u2019s refusal to make a Probate Code provision applicable to preclude wrongful death benefits does not preclude the use of Probate Code law, along with other laws, to indicate public policy regarding the right of a parent who has abandoned a child to recover wrongful death benefits upon the death of that child.\nCONCLUSION\n{28} In filing her amended petition, Mother did exactly as we contemplated in Dominguez. In turn, the trial court considered abandonment and non-support, pursuant to the views expressed in Dominguez, in making its final ruling. The facts concerning abandonment and non-support are not challenged on appeal. We now hold that Dominguez is the law in New Mexico and, accordingly, find no error in the approach taken in the trial court.\n{29} We affirm.\n{30} IT IS SO ORDERED.\nWE CONCUR: A. JOSEPH ALARID and JONATHAN B. SUTIN, Judges.", "type": "majority", "author": "PICKARD, Judge." } ], "attorneys": [ "Edward L. Ch\u00e1vez, David J. Stout, Carpenter & Ch\u00e1vez, Ltd., Albuquerque, NM, for Appellee.", "Bradley D. Tepper, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, Megan M. Kelley, Hamilton and Faatz, P.C. Denver, CO, for Appellant." ], "corrections": "", "head_matter": "2003-NMCA-084\n70 P.3d 1283\nWanda PERRY, Petitioner-Appellee, v. Zollie Jeffrey WILLIAMS, Respondent-Appellant.\nNo. 22,664.\nCourt of Appeals of New Mexico.\nMay 6, 2003.\nCertiorari Denied, No. 28,085, June 33, 2003.\nEdward L. Ch\u00e1vez, David J. Stout, Carpenter & Ch\u00e1vez, Ltd., Albuquerque, NM, for Appellee.\nBradley D. Tepper, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, Megan M. Kelley, Hamilton and Faatz, P.C. Denver, CO, for Appellant." }, "file_name": "0844-01", "first_page_order": 876, "last_page_order": 883 }