Abandonment of dependent consists of a person having the ability and means to provide for his spouse or minor child's support and abandoning or failing to provide for the support of such dependent.

Whoever commits abandonment of dependent is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-6-2, enacted by Laws 1963, ch. 303, § 6-2; 1969, ch. 182, § 4; 1973, ch. 241, § 1; 1995, ch. 123, § 1.

Cross references. — For enforcement of duty of support owed to spouse or minor children by the human services department, see 27-2-28 to 27-2-31 NMSA 1978.

For mutual obligation of support between husband and wife, see 40-2-1 NMSA 1978.

For Uniform Interstate Family Support Act, see Chapter 40, Article 6A NMSA 1978.

The 1995 amendment, effective July 1, 1995, in the first sentence, substituted "or" for "and" following "his spouse" and deleted "and thereby leaving such spouse or minor child dependent upon public support" following "of such dependent".

Section not void for vagueness. — This section conveys a definite warning of proscribed conduct; it is not unconstitutionally vague and does not violate due process. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

No unequal classification. — Since the crime proscribed in this section is defined in terms of a defendant's actions, the contention of unequal classification of defendants allegedly (based on the actions of the victims in seeking or not seeking public support) has no factual basis. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

No affirmative action required of dependents. — This statute contains no requirement that official action be taken to obtain public welfare benefits from the health and social services department (now the human services department) and hence the equal protection claim based on the concept that public welfare benefits must be sought by those abandoned in order to support a prosecution hereunder is without merit. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

This statute is not written in terms of becoming dependent, but rather, refers to acts of a defendant which leave the victim dependent on public support. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Both legitimate and illegitimate children are entitled to support from their mothers and fathers. Stringer v. Dudoich, 1978-NMSC-071, 92 N.M. 98, 583 P.2d 462.

Partial correction of social evil acceptable. — Fact that this section fails to cover all abandonments and failures to support, by focusing only on those persons whose actions leave their dependents dependent on public support, does not violate the requirement of equal protection because the partial correction of the social evil in question has a rational relation to the object of the legislation. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Standing to question constitutionality. — Since defendant was charged only with abandoning his minor children, that offense applying equally to both men and women, his rights were not affected by statutory distinction formerly making it an offense for a man to abandon his wife, but not for a wife to abandon her husband, and accordingly his claims of unconstitutionality based on sex discrimination did not present an issue for decision. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Social evil. — Abandonment of or failure to support minor children is a social evil. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Evidence sufficient. — Where the record was replete with evidence that defendant abandoned his minor children without sufficient means of support, it amply supported conviction of abandonment under former 40-2-4, 1953 Comp., and obviated consideration of whether evidence must show that children were destitute when defendant left them. State v. Seaton, 1965-NMSC-123, 75 N.M. 511, 407 P.2d 354.

Law reviews. — For comment, "Artificial Insemination in New Mexico," see 10 Nat. Resources J. 353 (1970).

For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

For comment, "Voluntary Sterilization in New Mexico: Who Must Consent?" see 7 N.M.L. Rev. 121 (1976-77).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Desertion and Nonsupport §§ 1 to 23, 51 to 64.

Criminal responsibility of husband for abandonment or nonsupport of wife who refuses to live with him, 3 A.L.R. 107, 8 A.L.R. 1314.

Adultery of wife as affecting criminal charge of abandonment against husband, 17 A.L.R. 999.

Illegitimate child as within statute relating to duty to support child, 30 A.L.R. 1075.

Extent or character of support contemplated by statute making nonsupport of wife offense, 36 A.L.R. 866.

Power to make abandonment, desertion or nonsupport of wife or family criminal offense, 48 A.L.R. 1193.

Criminal liability of father for desertion of or failure to support child as affected by decree of divorce or separation, 73 A.L.R.2d 960.

41 C.J.S. Husband and Wife §§ 242 to 246; 67A C.J.S. Parent and Child § 165 to 167.