NO. 90-304 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

KATHLEEN D. BREUER, as Guardian of Perian T. Breuer, Natural Mother, and Guardian of Michael John Breuer, a minor child, Plaintiff and Respondent,

JACK POE and CHARLOTTE POE, as Parents and Guardians of Jason G. Poe, FLERK 0°F SUPREfdECOURT STATEQP MONTANA a minor child, Defendants and Appellants.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Timothy D. Geiszler, Geiszler and Newcomer; Missoula, Montana For Respondent: Dennis E. Lind; Datsopoulous, MacDonald and Lind; Missoula,Montana

Filed: Submitted on Briefs: August 23, 1990 Decided: September 20, 1990

Clerk

### Justice R. 

### C. McDonough delivered the Opinion of the Court. This is an appeal from a default judgment rendered by the Fourth Judicial District, Missoula County. The judgment imposed personal liabilityuponJack and Charlotte Poe,guardians of Jason Poe, in the amount of $5,010.95. We reverse. The only issue relevant to this appeal is: Whether theDistrictCourt erred inrendering judgmentagainst Jack and Charlotte Poe in their individual capacities. In 1988,Perian Breuer and Jason Poe,whileminors, conceived
a child in Missoula County, Montana in the year 1988. Shortly after the child's birth, Jason Poets parental rights were terminated. On July 7,1989,Kathleen Breuer, as guardian of her daughter Perian,and grandsonMichael [childof PerianandJason] filed suit to recovermedical costs incurred as a result of Michael's birth. Jack and Charlotte Poewere named in the complaint as guardiansof their son Jason. The Poes filed amotion todismiss the complaint. Thismotion
was denied on December 29, 1989 and the trial court gave the Poes twenty days to file an answer to the complaint. Apparently, no answer was filed and the District Court rendered a judgment by default against the Poes individually on March 8,1990. According to the judgment, they are personally liable for medical costs incurredby Perian Breuer in the amount of $3,709.37 togetherwith costs in the amount of $75.00 and attorney's fees in the amount of $1,226.58, for a total sum of $5,010.95. This appeal followed.Both parties present several issues for our review including alleged proceduraldefects of the appeal, jurisdictional issuesand thepropriety of the award of attorney's fees. We will not address any of these issues,however. Our decision to vacate the judgment is dispositive of this entire appeal. As stated above Kathleen Breuer filed a complaint seeking reimbursement of medical costs incurred by her daughter Perian as a result of the birth of a child conceived by the daughter and Jason Poe. The complaint named Jason s parents, Jack and Charlotte, defendants, as guardians of their son. In their capacity as guardians, Jack and Charlotte Poe were charged with the duty of safeguarding Jason's rights during the legal proceeding initiated by Kathleen Breuer. See 39 Am.Jur.2d Guardian and Ward 5 1. However, this duty does not subject them to personal liability for the alleged wrongful acts of their son. Albert v. Stueber (Neb. 1979), 275 N.W.2d 612. Furthermore,thePoeswere not givenanynotice that theywere subject to personal liability. The title of the case as filed in District Court, the allegationscontained in the complaint and all of the motions at trial address the Poes in their capacity as guardians. Given these facts, it is obvious that they were not notified of any likelihood of personal liability. Dueprocess and fair play mandate against such occurrences. We therefore reverse and vacate the judgment entered against Jack and Charlotte Poe.

Justice

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