                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 93-CA-00156-SCT
SHEPPARD AND ENOCH PRATT HOSPITAL, INC.
v.
HERMAN C. SAKWA

DATE OF JUDGMENT:                             1/14/93
TRIAL JUDGE:                                  HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                    OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       WILLIAM E. CHAPMAN, III
ATTORNEYS FOR APPELLEE:                       DOLTON W. McALPIN
NATURE OF THE CASE:                           CIVIL - CONTRACT
DISPOSITION:                                  REVERSED AND REMANDED - 4/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               8/17/98




     EN BANC.


     BANKS, JUSTICE, FOR THE COURT:


¶1. This appeal arises from an order of the circuit court granting the defendant's motion for summary
judgment. The plaintiff hospital, a Maryland corporation with its principal place of business in
Maryland, seeks to collect from the defendant some $107,188.34 in unpaid bills for the treatment of
his minor child, which it was unable to collect from the custodial parent. In accordance with our
simultaneous opinion in the separate case of Sheppard Pratt Physicians, P.A., No. 93-CA-00160-
SCT, we apply Maryland law and conclude that a non-custodial parent may be held liable for the
unpaid medical services rendered to his or her minor child.

                                                  I.

¶2. Stephanie Suzanne Sakwa is the minor child of Herman C. Sakwa, a Mississippi resident, and
Diane M. Sakwa, a Maryland resident. Her parents were divorced in 1981 and Diane Sakwa received
custody of Stephanie. When Diane moved to Maryland, she took Stephanie with her.

¶3. Between February 19, 1988 and May 31, 1989, Stephanie was treated at the Sheppard & Enoch
Pratt Hospital, Inc. (Hospital), in Towson, Maryland. A statement dated September 15, 1989, in
Diane Sakwa's name, indicated a balance owed of $107,188.34. The Hospital filed a complaint
against Herman Sakwa in the Circuit Court of Oktibbeha County on May 16, 1991, asserting that he
was liable for this unpaid balance remaining on Diane's account pursuant to Maryland Family Law
Code Annotated § 5-203 (1957), which places a responsibility on parents to provide for the support
and care of their minor children.(1) Herman Sakwa raised a variety of defenses, including that he was
not a party to the contract between Diane Sakwa and the Hospital and further, that having obtained a
judgment against Diane Sakwa for the amount owed in the Baltimore County Circuit Court on May
14, 1990, the Hospital was estopped from proceeding against him.

¶4. Herman Sakwa filed a Rule 12(b)(6) motion to dismiss, or in the alternative for summary
judgment, on May 19, 1992. The circuit court denied Herman Sakwa's motion to dismiss, but granted
his motion for summary judgment on January 14, 1993. The Hospital now appeals, asking whether a
third-party supplier of medical services may maintain an action, pursuant either to statutory authority
or common law, against a non-custodial parent for medical expenses rendered on behalf of his or her
minor child.

                                                  II.

¶5. This Court utilizes the "center of gravity" test to determine whether Mississippi or Maryland law
applies to the present situation. See Ford v. State Farm Ins. Co., 625 So. 2d 792, 794 (Miss. 1993);
Boardman v. United Services Auto. Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985). We have also
applied Restatement § 188 to review choice of law questions in cases involving contracts, both
express and implied. Id. at 1032. See also Crouch v. General Elec. Co. , 699 F.Supp. 585, 592 (S. D.
Miss. 1988); Richardson v. Clayton & Lambert Mfg. Co., 634 F.Supp. 1480, 1482-83 (N. D. Miss.
1986). As we conclude in the separate but related case of Sheppard Pratt Physicians, P.A. v.
Sakwa, No. 93-CA-00160-SCT, Maryland has the most substantial contacts with the subject matter
of the present action and thus we apply the law of that state.

¶6. As this Court also determines in Sheppard Pratt Physicians, Maryland law dictates that a non-
custodial parent may be held liable for the necessary medical expenses of a minor child. See Md.
Code Ann., Fam. Law § 5-203(b) (1991); Kriedo v. Kriedo, 150 A. 720 (Md. 1930). The undisputed
facts are that the Hospital rendered medical services to Sakwa's daughter, and that $107,188.34 is
still owed for these services. Thus, the trial court erred in granting the appellee's motion for summary
judgment, and holding that Maryland law did not sustain a right of action in favor of third-party
medical care providers for collection of unpaid medical bills.

¶7. The remaining question to be tried in the instant case is whether the services rendered to
Stephanie were necessary. Accordingly, this matter is reversed and remanded to the circuit court for
trial of that issue.

¶8. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J, SMITH AND MILLS, JJ., CONCUR. McRAE, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND
ROBERTS, J. WALLER, J., NOT PARTICIPATING.


     McRAE, JUSTICE, DISSENTING:
¶9. Sheppard & Enoch Pratt Hospital, Inc., a Maryland corporation with its principal place of
business in Maryland, seeks to collect from Herman Sakwa some $107,188.34 in unpaid bills for the
treatment of his minor child, Stephanie, which it was unable to collect from the custodial parent,
Diane Sakwa. A third-party supplier of medical services should not be allowed to maintain an action,
pursuant either to statutory authority or common law, against a non-custodial parent for medical
expenses rendered on behalf of his or her minor child when there has been an intervention by a court
and a judgment does not order it.(2)Further, since the record before the Court does not show that the
expenses to treat Stephanie were necessary and reasonable, I would affirm the circuit court below.

                                                   I.

¶10. Between February 19, 1988 and May 31, 1989, Stephanie was treated at the Sheppard & Enoch
Pratt Hospital, Inc., in Towson, Maryland. The record does not indicate the nature of her illness or
injuries. A September 15, 1989 statement in Diane Sakwa's name indicated a balance owed of $107,
188.34. Sakwa's insurance covered close to $60,000.00 of the total charges of $177,135.51, and a
grant-in-aid of $10,000.00 was provided. Diane Sakwa paid only $55.00 of the charges for
Stephanie's care.

¶11. Diane Sakwa signed the agreement or contract admitting her daughter to Sheppard and
agreeing, in turn, to the rates, billing schedule and other policies followed by the hospital. In his
affidavit to the trial court, Herman Sakwa stated that he had not been told by anyone affiliated with
the hospital that he would be responsible for payment for Stephanie's treatment and never signed any
agreement or contract. He further indicated that when he asked about moving his daughter from the
facility because the costs of treatment had reached the limits of the insurance policy he provided for
her pursuant to the terms of the divorce decree, he was told that she could not be released without
her mother's consent since it was her choice to have Stephanie treated there and she was responsible
for her daughter.

                                                  II.

¶12. Procedurally, this Court must address the appellant's issue as a challenge to the propriety of the
summary judgment below. This Court conducts a de novo review of orders granting summary
judgment, viewing the evidence in a light most favorable to the non-moving party. Westbrook v. City
of Jackson, 665 So. 2d 833, 836 (Miss. 1995). When ruling on a motion for summary judgment, the
trial court must consider whether the "pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P.
56(c); Rolison v. City of Meridian, 691 So. 2d 440, 443 (Miss. 1997). When the moving party is
entitled to judgment as a matter of law, summary judgment should be granted. Mantachie Natural
Gas Dist. v. Mississippi Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992).

¶13. In his alternative summary judgment motion, Herman Sakwa argued that under either
Mississippi or Maryland law, a non-custodial parent is not liable in a direct action by a third party
medical provider for a child's medical expenses. Herman Sakwa swore out an affidavit attesting that
he had neither been consulted about nor had agreed to medical care for his daughter Stephanie at
Sheppard and Enoch Pratt Hospital. He further pointed out case law supporting his argument that he
was not liable in the absence of a court order specifically requiring payment of the medical
expenses.(3)

¶14. Sheppard has produced nothing to show that the expenses exceeding the payments under
Herman Sakwa's insurance policy were reasonable and necessary, as it is required to do pursuant to
McLain v. West Side Bone & Joint Ctr., 656 So. 2d 119, 121 (Miss. 1995). In fact, unlike McLain,
where it was determined that the minor child had an immediate leg injury, here there is nothing in the
record to indicate the nature of Stephanie's injuries. Sheppard has not shown that Herman Sakwa was
involved in the decision to admit Stephanie to the hospital or to assume any liability for expenses
incurred on her behalf, beyond the coverage provided by his insurance policy pursuant to the divorce
decree. The Arizona court that issued the divorce order only required that Herman Sakwa provide
insurance for Stephanie; Diane Sakwa was given permanent care, custody and control of Stephanie.
If there is to be a change in the parental obligations, the change should come in the divorce decree
and from the court that issued the decree, not this Court. The circuit judge, therefore, was correct in
granting Sakwa's motion for summary judgment.

                                                 III.

¶15. In Govan v. Medical Credit Serv., Inc., 621 So. 2d 928, 930 (Miss. 1993), this Court found
that one spouse could not be responsible for debts contracted by a former spouse without the other's
express consent. The circuit court here further properly found that Sheppard was not entitled to
summary judgment as a matter of law on an implied contract theory, based on the following
undisputed facts:

     (1) A court of competent jurisdiction previously considered the child support obligations of the
     non-custodial parent, defendant Sakwa. (2) Defendant Sakwa at all times conformed to the
     child support obligations which were ordered by that court and has at all times adhered to that
     Court's order. (3) Defendant Sakwa had no substantial connection with either plaintiff.

Pursuant to the divorce decree, Sakwa was required only to provide medical insurance for his
daughter and to share equally with his wife any dental expenses and the costs of hand surgery. The
record indicates that Sakwa's insurance paid $10,775 of Sheppard's bill until the policy benefits were
exhausted. He thus met his parental obligations under the terms of the decree. Moreover, not only did
Herman Sakwa have no substantial contacts with the physicians group or the hospital, but also he
was apparently precluded by the hospital from having any input into the course of Stephanie's
treatment. Sheppard took the position that because his former wife had Stephanie admitted to
Sheppard & Enoch Pratt Hospital, any decision to move Stephanie to another facility was solely up
to Diane Sakwa, regardless of the reasonableness of the change in the treatment plan or costs thereof.

¶16. In this case, Sheppard failed to establish that expenses for Stephanie Sakwa were reasonable and
necessary. The majority relies on, inter alia, Kriedo v. Kriedo, 150 A. 720 (Md. 1930), to support its
claim that under Maryland common law, a non-custodial parent is required to pay the necessary
medical expenses of a minor child. In Kriedo, the Maryland Court of Appeals held that claims for
extraordinary necessary expenses for the child, not contemplated or intended to be covered by the
award previously made, were not cognizable in equity, but could only be litigated in a court of law.
Id. at 723. The Maryland court grounded its decision in the concept that unless the divorce decree
establishing child support specifically contemplated such, the common law obligation to pay for
necessary expenses used in support of one's minor children was, at the time of that decision, primarily
a duty of the father and was owed to the person supplying the items on an implied contractual basis.
Suffice it to say that times have changed. Both parents have a moral obligation to provide for the
reasonable and necessary expenses of their children, and there is no presumption that parental
obligations are primarily a father's. Further, when the harmony of the family structure is interrupted
by divorce, our jurisprudence requires that each parent make a showing that expenses are reasonable
and necessary before requiring the other parent to pay.

¶17. Miss. Code Ann. § 93-13-1 (1994) does not create a right of action in favor of third-party
medical care providers for collection of unpaid medical bills. This Court should not issue a blanket
statement which renders the statute a means of debt collection. Furthermore, general laws concerning
the father's general support obligation do not form a sufficient legal basis for a third-party creditor to
maintain an action at law against a father. Nothing in our jurisprudence obligates one spouse to be
liable to a third party for the debts of the other without express consent. To hold otherwise would
open the door for either spouse to control or deplete the other's separate estate. There is no open
right of the third party to look to a non-custodial parent whose support obligation has been
considered and determined by a court of competent jurisdiction and with whom the third party has no
connection.

¶18. Herman Sakwa has met his parental obligations pursuant to the divorce decree by providing
medical insurance for Stephanie which paid for her treatment to the extent provided by the policy.
The only other provisions in the divorce decree for medical expenses are related to the equal division
of dental expenses and hand surgery for Stephanie. Therefore, the determination of the extent of the
parents' obligations should properly exist in a domestic relations court (such as the court that issued
the divorce order) in an action between Diane and Herman Sakwa. An action to construe the terms of
the divorce decree, and to modify them, if necessary, to meet Stephanie's current medical situation is
the appropriate vehicle for the determination of the Sakwas' respective parental obligations for
Stephanie's medical care.

                                                   IV.

¶19. This Court should reject the arguments advanced by Sheppard & Enoch Pratt Hospital. We
should not impose a blanket obligation upon a non-custodial parent to provide for a child's medical
treatment, because to do so will invite abuse by the custodial parent. In the context of divorce and
child custody, a third-party seeking payment of medical expenses from a non-custodial parent must
demonstrate that the medical expenses were reasonable and necessary and must make its claim based
on a contract, implied contract, or court order. There is nothing to imply that the judgment imposed
upon Herman Sakwa in the divorce proceeding has been modified. He did exactly what he was
required to do under that court order--provide for insurance for Stephanie. For this obligation to
change, there would have to be a modification of the order. However, since there was no showing by
Sheppard that the medical expenses for Stephanie Sakwa were reasonable or necessary, or that the
expenses were based on a contract, implied contract, or a court order, I would affirm the orders of
the trial court. Because the majority reaches the opposite conclusion, I respectfully dissent.

SULLIVAN, P.J., AND ROBERTS, J., JOIN THIS OPINION.
1. The doctors who treated Stephanie, Sheppard Pratt Physicians, P.A., sought to collect an
additional $23,765.00 from Herman Sakwa in a separate action.

2. The issue not raised is whether the laws of Arizona, Maryland or Mississippi apply to an implied
contract, or whether a divorce decree precludes any further responsibility by the non-custodial
parent. This issue was not raised, since Sheppard has brought this appeal.

3. As to Herman Sakwa's specific medical payment obligation to his children, the Arizona divorce
order only required that:

     Husband shall keep and maintain health, hospital, and dental insurance as long as such is
     provided by the husband's employment, until each minor child reaches the age of 18. Said
     insurance shall be continued by husband thereafter if it is available until the children reach age
     21.
