Michaels v. Nemethvargo

²⁹⁶ ROSALYN B. BELL, Judge. The facts before us set out a cause of action for parents who have lost the services of their minor child; the parents also claim a loss of companionship and society. We agree with them that there is a valid claim for the loss of services and necessary expenses, but will leave it to the Legislature to provide parents with a cause of action for the loss of their minor child’s society and companionship, if it determines this is advisable. This appeal arose from a decision of the Circuit Court for Anne Arundel County dismissing the complaint of Lucille and John Michaels, and their 17-year-old son, Anthony (Tony) Michaels.

The Michaelses sued Carol Nemethvargo for the loss of Tony’s services and companionship as a result of his current imprisonment. In the spring of 1986, Mrs. Nemethvargo employed Tony and three other young men to kill her husband. In return, Mrs. Nemethvargo promised to pay Tony $6,000 for murdering her husband. The plan to kill Mr. Nemethvargo failed and Tony was ultimately tried as an adult and found guilty of attempted first degree murder.

He was sentenced to six years imprisonment, while Mrs. Nemethvargo was placed on probation for her role in the plot. The Michaelses filed suit on July 10, 1987. A summons was issued on July 14, 1987 and served on Mrs. Nemethvargo on September 15, 1987, more than 60 days after the summons was issued. A Motion for Default Judgment was filed on December 11, 1987, after which an Order for Default was filed on December 30, 1987, pursuant to Rule 2-613(a).

Mrs. Nemethvargo was sent notice of the default on January 18, 1988. On April 5, 1988, she appeared in court for a damages hearing in the present suit. Damages, however, were never assessed. The following day, the court enjoined the buyers of Mrs. Nemethvargo’s house from paying the money directly to her.

The order required the proceeds be placed into an escrow account until this suit was resolved. ²⁹⁷ On May 13, 1988, Mrs. Nemethvargo filed a Motion to Revise Judgment, 1 alleging that the complaint was served three days after the summons had expired. Despite the title of the motion, there was no default judgment to revise, only an order of default. The Michaelses filed an answer to this motion. On July 5, 1988, the trial court struck the order of default and ordered the dissolution of the injunction.

Nearly nine months later, on March 20, 1989, Mrs. Nemethvargo filed a Motion to Dismiss Complaint and Memorandum, alleging that the Michaelses had no cause of action because her contract with Tony was illegal. At the April 13, 1989 hearing on the motion to dismiss, she also argued that the Worker’s Compensation Act invalidated any common law action the Michaelses might have had. 2 The trial judge ruled in favor of Mrs. Nemethvargo and dismissed the case. This appeal followed. On appeal, the Michaelses complain: — The trial court erred in striking the default judgment against appellee where the appellee did not file a motion to revise until 38 days after she had personally appeared in court and over 90 days after judgment was enrolled where she offered no reason for the delay and made no showing whatsoever of having acted with due diligence. ²⁹⁸ — Appellants, parents of a minor child, have a cause of action where they were deprived of the services of their minor child and lost the child’s companionship, and sustained other losses, as a result of appellee’s employing the minor child to murder appellee’s husband without obtaining the parents’ consent to the employment. — One who contributes to the delinquency of a minor by inducing the minor to enter into an attempted first degree murder is liable in tort to both the minor and the parents.

We disagree with the Michaelses on their claim that the trial court erred in striking the default judgment. We agree, however, with the Michaelses that there is a cause of action for parents who lose the services of their minor child; consequently, we reverse the trial court’s dismissal of their cause of action regarding their minor son’s services. In light of the Court of Appeals’ recent decision on a related issue, however, we leave the creation of a cause of action for a parent’s loss of a child’s society and companionship to the Legislature. We also hold that under the facts in this case there is no action for causing the delinquency of a minor.

ORDER OF DEFAULT Appellants contend that the trial court erred in striking the default judgment against appellee. We disagree. The flaw in appellants’ argument is that the trial court did not strike a default judgment; the court struck an order of default. 3 An order of default is an interlocutory order. As we have previously stated, an “order of default determines liability; the default judgment determines the relief ²⁹⁹ granted.” Hanna v. Quartertime Video & Vending Corp., 78 Md.App. 438, 444 , 553 A.2d 752 , cert. granted, 316 Md. 508 , 560 A.2d 41 (1989).

Thus, an order of default, as was granted in the instant ease, is not appealable as a final judgment since no final relief has been granted. Adams v. Mallory, 308 Md. 453, 460 , 520 A.2d 371 (1987). Appellants contend, however, that the court erred in striking the “default judgment” because appellee did not comply with the requirements of Rule 2-535. Rule 2-535 provides in pertinent part: “(a) Generally. — On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under rule 2-534. “(b) Fraud, Mistake, Irregularity. — On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.” In Hanna , we held that Rule 2-535 ordinarily does not preclude “the exercise by the court of its discretion to revise any interlocutory order until a final judgment is entered.

Where Rule 2-535 does not apply because the judgment is not final, the court may, under its inherent power, control its own judgments until finality.” Hanna, 78 Md.App. at 449 , 553 A.2d 752 . See also Henley v. Prince George’s County, 305 Md. 320, 328 , 503 A.2d 1333 (1986). Moreover, in the exercise of that inherent power, a trial judge has broad discretion to modify an interlocutory order where that action is in the best interests of justice. Henley, 305 Md. at 328 , 553 A.2d 752 .

As there was no final judgment in this case, when the trial judge struck the “judgment of default” (the order of default) on July 5, 1988, the trial court was not constrained by the restrictions of Rule 2-535 in revising the order of default. Therefore, the trial judge was free to dissolve the ³⁰⁰ injunction ordering appellee to put the proceeds from the sale of her house into an escrow account. We find no abuse in the exercise of that discretion. Since we hold that Rule 2-535 did not apply to the instant case, we need not address appellants’ claims that appellee did not comply with its requirements.

As explained, the trial court simply exercised its authority over an interlocutory order. Similarly, the issue that there was not defective service of process because appellee voluntarily appeared in court which appellants raise, albeit an interesting one, is moot. Regardless of whether service of process was defective, appellants raised this issue in conjunction with appellee’s compliance with Rule 2-535, which we hold does not apply since the disposition was of an interlocutory order and not a final judgment. APPELLANTS’ CAUSE OF ACTION: SERVICES We turn next to the second challenge, namely whether appellants have a cause of action.

Appellants contend that they do have a valid cause of action based on the loss of the services and companionship of their minor child as a result of appellee’s employment of said minor child without their consent. We agree with appellants that they have a valid cause of action for the loss of services of their minor child. Consequently, we reverse the decision of the trial court. But we leave the creation of a cause of action for loss of society and companionship to the Legislature. —Common Law Right— Appellants rely on Seglinski v. Baltimore Copper Smelting and Rolling Co., 149 Md. 541 , 131 A. 774 (1926), which, they contend, is analogous to the instant case.

In Seglinski , the defendant hired the plaintiff’s minor son for a non-dangerous job in the copper manufacturing business with the plaintiff’s approval. Later, without the plaintiffs’ approval, the son’s job was changed to one involving danger and the son was injured. The Court of Appeals reversed ³⁰¹ the trial court’s judgment for the defendant and recognized the plaintiffs’ cause of action for the loss of the minor son’s services. Seglinski, 149 Md. at 548 , 131 A. 774 .

According to appellants, the instant case is akin to Seglinski . They argue that murder-for-hire is a dangerous occupation to which appellants would never have consented had appellee asked them for permission. We agree that Seglinski is on point 4 regarding Maryland’s recognition of the common law parental cause of action for the loss of a minor child’s services from hazardous employment without the parents’ consent. Accord, Hudson v. Hudson, 226 Md. 521, 528 , 174 A.2d 339 (1961). 5 We hold that appellants have a valid cause of action for loss of services and expenses necessarily flowing from the tort.

Appellants also cite several cases from other jurisdictions to bulwark their position. We comment on only two of their cases. To support their argument, they cite Kramer v. ³⁰² Leineweber, 642 S.W.2d 364 (Mo.1982), where an ex-husband and his mother conspired to prevent the mother from having custody of the child. That case, in turn, cites Comment g to § 700 Restatement (Second) of Torts, which says: “The parent can recover for the loss of society of his child and for his emotional distress resulting from its abduction or enticement.” This Comment to § 700, which is entitled “Causing Minor Child to Leave or not to Return Home,” is not persuasive since this is a factual situation involving neither an abduction nor an enticement to leave home.

In fact, had appellee’s plan worked as she intended, the minor appellant would not have been apprehended by the police. He would have simply returned home after having murdered appellee’s husband. Hence, we find Kramer inapposite. Appellants also cite Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247 (1919), as a case which supports their ability to maintain their claim and their right to recover attorney’s fees to cover the expenses of the minor appellant’s defense in the criminal case.

In Tidd , a widow sought to recover damages for the loss of the services of her son who had become a heroin addict by virtue of the defendant’s activities. The Court sustained the action, equating the parent-child relationship with the master-servant relation. “[T]he right of a parent to recover for loss of services of a child has long been recognized at common law.” Tidd, 122 N.E. at 251 . The Tidd Court also provided for compensation for expenses incurred by reason of such injury. According to appellants, this generalized category of “expenses” includes appellants’ claim for the costs they have incurred to defend the minor appellant.

We agree. At common law, the father of the minor child was entitled to the child’s services and any income the child received. Greenwood v. Greenwood, 28 Md. 369, 384 (1868). The right of the father to the services and earnings of the minor child did not carry a concominant duty to support at early common law, but the father’s duty to support the child and ³⁰³ provide the child with necessaries soon attached.

Greenwood, 28 Md. at 384 . Moreover, property furnished by the father for support or necessaries remained the property of the father and hence, the father was entitled to recover from a third person who was responsible for the loss thereof. Baltimore Steam Packet Co. v. Smith, 23 Md. 402, 409 (1865). Those necessaries furnished by the father have historically included food, clothing, shelter and education.

Appellant posits that, in addition to these necessaries, counsel fees should be included within the meaning of necessaries. In Carter v. Carter, 156 Md. 500 , 144 A. 490 (1929), the Court of Appeals addressed this position. The Court stated: “Without attempting to define in terms or by illustrative cases the meaning of so general and essentially relative a word as ‘necessaries,’ when used in connection with the responsibility of a parent to a child, it may be said that its scope is not confined to such obvious things as board, lodging, and education, but may, under proper circumstances, extend to the services of an attorney, if reasonable and necessary for the protection or enforcement of the property rights of the minor or his personal protection, liberty, or relief. “The right of recovery, however, is subject to the condition that the expenditure of money made or the services rendered were reasonable and necessary for the welfare of the infant, and especially, in the event of an action at law or in equity, is it required, before the father may be charged with the payment of attorney fees, that it must affirmatively appear that the proceeding begun or the defense interposed was reasonable and necessary for the temporal or personal welfare of the minor.” Carter, 156 Md. at 509 , 144 A. 490 (citations omitted). See also Serabian v. Alpern, 284 Md. 680, 686-87 , 399 A.2d 267 (1979); Price v. Perkins, 242 Md. 501, 504 , 219 A.2d 557 (1966); Price v. Price, 232 Md. 379, 383-84 , 194 A.2d 99 (1963).

These principles relative to the rights and obligations of the father have been extended from the father to ³⁰⁴ the father and mother. See Rand v. Rand, 280 Md. 508, 517 , 374 A.2d 900 (1977) and the Equal Rights Amendment, Art. 46 of the Maryland Declaration of Rights. Hence, under the circumstances presented here, we hold that the expenses incurred by appellants to defend their son in the criminal case may well be reasonable and necessary for the personal welfare of the minor appellant. In conclusion, we hold that there is a valid parental cause of action (1) for the loss of a minor child’s services in Maryland, limited to the pecuniary loss the parents will have suffered until the child reaches 18 and (2) the corresponding expenses necessary and reasonable for the welfare of the child.

Moreover, the allegations in this case support that cause of action. We hold that the trial judge erred by dismissing appellants’ cause of action. LOSS OF SOCIETY AND COMPANIONSHIP: THE CURRENT LEGAL ENVIRONMENT The leading case recognizing the parental claim for loss of society and companionship of their child is Shockley v. Prier, 66 Wis.2d 394 , 225 N.W.2d 495 (1975). In Shockley , the Wisconsin Supreme Court took notice of the change in the familial relationship between parents and children since the common law established the remedy of an action for the loss of a minor child’s earnings.

The Court commented: “Society and companionship between parents and their children are closer to our present day family ideal than the right of the parents to the ‘earning capacity during minority,’ which once seemed so important when the common law was originally established.” Shockley, 225 N.W.2d at 499 . The Shockley Court was not persuaded by the defendants’ observation that several courts which had had the issue before them had declined to create a cause of action for the loss of a child’s society and ³⁰⁵ companionship. 6 Rather, the Shockley Court was convinced by the reasoning of those courts which had permitted recovery. See Lockhart v. Besel, 71 Wash.2d 112 , 426 P.2d 605, 609 (1967) (wrongful death statute should include loss of companionship of a minor child during his or her minority). The Wisconsin Supreme Court also recognized some of the problems other courts have since identified and frequently cited to support its decision not to permit this cause of action.

For example, the Shockley Court was quick to point out that proper jury instructions regarding damages would be necessary. Shockley, 225 N.W.2d at 500 . It also conditioned the parental cause of action as permissible only if joined with that of the minor child for his or her injuries. Shockley, 225 N.W.2d at 501 .

Shockley , admittedly, has not had as significant an impact on the legal terrain of parental loss of a child’s companionship as might have been expected. The majority of cases confronting this issue have not expanded the common law action for services to allow recovery for society, 7 ³⁰⁶ although a few Courts have done so. 8 Additionally, more than one-third of our sister jurisdictions have yet to decide ³⁰⁷ this issue. 9 See generally, Annotation, Parent’s Right to Recover for Loss of Consortium in Connection with Injury to Child, 54 A.L.R.4th 112 (1987). —Maryland Law— Maryland falls into the last category, not having had the opportunity to address this precise issue. 10 This is not to say that the Maryland courts have not addressed related causes of action. In fact, last year the Court of Appeals in an analogous situation held that a child has no right to maintain a cause of action for loss of parental society and affection as a result of the negligence of a third party. Gaver v. Harrant, 316 Md. 17 , 557 A.2d 210 (1989).

In Gaver , Chief Judge Murphy, writing for the majority, observed that “[a] cause of action allowing a minor child to recover for loss of a parent’s society and affection was unknown at early common law.” Gaver, 316 Md. at 18 , 557 A.2d 210 . The Gaver Court noted that, while a few courts have adopted this cause of action, the great majority have refused to do so. Chief Judge Murphy then proceeded to enumerate the reasons other courts have given for rejecting or adopting the child’s cause of action. These lines of argument are invariably reused in the case law concerning the parent’s ³⁰⁸ claim which is at issue here; hence, we will discuss them here as well.

As Gaver indicates, there are three general routes taken by courts which decline to authorize a child’s cause of action and, not surprisingly, the analogous similar claim of a parent. First, there are courts which “on public policy grounds, have concluded that the legislature, and not the court, is the governmental body best suited to weigh the burdens of the proposed cause of action against the benefits.” Gaver, 316 Md. at 21 , 557 A.2d 210 . Second, some courts refuse to permit the cause of action based on their belief that it is not really necessary and, in addition, it would adversely affect the cost of insurance, litigation and settlement. Lastly, other courts deny the cause of action by focusing on “strictly legal considerations.” These courts typically recount the general principles that tort law disfavors injuries to the plaintiff which result from injuries to a third party and that the injury here is emotional rather than physical or economic.

Gaver then looks at cases which have endorsed an action for the child’s loss of parental