Johnson v. Johnson

Decision Date14 September 2000
Docket NumberNo. 990353.,990353.
Citation617 N.W.2d 97,2000 ND 170
PartiesAntonyio JOHNSON, Plaintiff and Appellee, v. Madonna L. JOHNSON, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Henry H. Howe, Howe & Seaworth, Grand Forks, N.D., for defendant and appellant.

Steven J. Simonson, Omdahl Law Office, Grand Forks, N.D., for plaintiff and appellee.

MARING, Justice.

[¶ 1] Madonna Johnson appeals a divorce judgment, challenging the trial court's denial of child support and spousal support and its division of the parties' property. She also argues the trial court erred in modifying an interim order without notice during appearances of counsel. We do not address the latter issue because Madonna failed to raise it at trial. In the Interest of B.D., 510 N.W.2d 629, 632 (N.D.1994). As to the other issues, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


[¶ 2] Madonna and Antonyio Johnson married in 1986, while both were serving in the United States Air Force and stationed in England. After their marriage, the Johnsons received a transfer to McGuire Air Force Base in New Jersey and were living there in 1988 when they received a phone call from Michelle Clayton, the wife of Madonna's son David Clayton. Michelle told them David was in jail in Vermont and she was stranded in Pennsylvania with two small children, the youngest of whom, Jessica, was David's child. Michelle was unable to find a place to stay and had no money, so Madonna and Antonyio drove to Pennsylvania to get Michelle and the children. Michelle stayed with the Johnsons for approximately one week, and then the Johnsons purchased a bus ticket for Michelle so that she could return to her family in Kentucky. Before she left, Michelle asked the Johnsons to take the three-month-old Jessica until she got back on her feet, and the Johnsons agreed. Madonna obtained a temporary order of custody, and the Johnsons planned to keep Jessica for 30 days; however, Michelle never returned to claim the child.

[¶ 3] In the ten years that followed, the Johnsons raised Jessica to believe she was their child; she called them her mother and father and they called her their daughter. Antonyio listed Jessica as his dependent on his federal tax returns. The Air Force listed Jessica as Antonyio's dependent daughter on his transfer orders and for medical benefits, placing her under his social security number. Though Jessica's birth certificate identified her last name as Clayton, the Johnsons consistently called her Jessica Johnson. Jessica was baptized in Antonyio's family's church in Georgia, where both Antonyio and Madonna pledged to love and nurture Jessica, and to continue to take care of her. The Johnsons initiated adoption proceedings in both New Jersey and Kentucky, obtaining consents from her natural parents, but each time they were transferred before completion of the adoption.

[¶ 4] During these years, Jessica had only minimal contact with her biological parents and Madonna and Antonyio led Jessica to believe that David was her older brother. At some point, either David or Michelle told Jessica her true parentage. Madonna and Antonyio were upset by this because they felt Jessica was too young to be told. After Jessica learned her true parentage, the Johnsons told Jessica they had adopted her. Neither David nor Michelle ever expressed any interest in taking Jessica back.

[¶ 5] Madonna retired from the military in 1992, after 20 years of service, and began drawing a military pension, part of which is attributable to a disability benefit. At that time, Antonyio was transferred to the Azores, and Madonna and Jessica stayed in Kentucky because they could not accompany him. While Antonyio served abroad, he and Jessica exchanged videos, pictures, letters and cards and Antonyio continued to act as her father, signing his letters to her "Love, Dad." Following Antonyio's return from the Azores in 1993, he was assigned to Eglin Air Force Base in Florida and, at his request, Madonna and Jessica moved there to join him. While in Florida, Madonna took care of Jessica and also attended a local technical college in order to get a degree in education.

[¶ 6] During their tenure in Florida, Antonyio grew dissatisfied with the marriage. He received transfer orders to go to Korea without the family, and he informed Madonna he wanted her to file for a divorce before he got back. If she did not do so, he said he would initiate divorce proceedings upon his return. Madonna failed to file for divorce, and upon Antonyio's return and subsequent assignment to Grand Forks Air Force Base, he initiated proceedings here in North Dakota.

[¶ 7] During the divorce trial, Madonna claimed she and Antonyio equitably adopted Jessica and sought child support from Antonyio. She also sought spousal support and a division of the parties' military pensions. The trial court issued a memorandum opinion, which it incorporated fully into the divorce judgment. In that memorandum opinion, it concluded North Dakota does not recognize the doctrine of equitable adoption, such that the concept was a "stranger to North Dakota jurisprudence." Therefore, the trial court refused to impose a child support obligation upon Antonyio. It also denied Madonna's request for spousal support, reasoning that both parties were "able bodied." Finally, the trial court divided the parties' property based on its weight in pounds and refused to divide the parties' military pensions.


[¶ 8] Madonna argues the trial court erred in its conclusion North Dakota does not recognize equitable adoption. We agree.


[¶ 9] North Dakota law clearly recognizes the doctrine of equitable adoption. Adoption, unknown to the common law, is entirely a creature of statute. Matter of Adoption of K.A.S., 499 N.W.2d 558, 566 (N.D.1993). Before North Dakota's admission to the United States, our territorial laws regulated adoption. See 1887 Compiled Laws of the Territory of Dakota §§ 2622-2631. Following statehood, our early statutes also contained adoption provisions. See N.D. Rev.Code §§ 2797-2806 (1895). Our current adoption law, the Revised Uniform Adoption Act, is found in N.D.C.C. Ch. 14-15. The doctrine of equitable adoption developed in this state alongside these laws and is grounded in the equitable principle that equity regards as done that which ought to have been done. See 7 Samuel Williston, Law of Contracts § 16.21, p. 471 (4th ed.1997); see also N.D.C.C. § 31-11-05(20) ("[t]hat which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due."). The doctrine holds that:

when an individual who is legally competent to adopt a child enters into a valid and binding contract to do so, and when there is consideration supporting this contract in the form of part performance falling short of undertaking or completing a statutory adoption, the contract may be enforced in equity to the extent of allowing the child to occupy the status of a formally adopted child for certain purposes.

George A. Locke, Annotation, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 A.L.R.3d 347, § 2[a] at 353 (1980). The doctrine is an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences, and does not effect a legal adoption. 2 Am.Jur.2d, Adoption § 53 at 930 (1994). The doctrine of equitable adoption, despite its name, bears almost no relationship to a statutory legal adoption. While the name may cause some confusion, we find its use prevalent in treatises and case law. Presented with this well established name, we conclude it best to use "equitable adoption" to describe this equitable remedy.

[¶ 10] Our own law of equitable adoption finds its roots within the context of a large-scale social experiment, the "placing out" of homeless and indigent children from urban areas in the East to the western United States. Between 1853 and 1929, 150,000 to 200,000 children were relocated by train to the west by charitable and religious societies.1See Marilyn Irvin Holt, The Orphan Trains: Placing Out in America (University of Nebraska Press 1992). See also Donald Dale Jackson, For city waifs, a bittersweet trip, Smithsonian, vol. 17, no. 5, at 95 (1986); Orphan Train Riders: Their Own Stories, vols. 1-4 (Orphan Train Heritage Society of America, Inc.1992, 1993, 1995, 1997). Relocation of these children was seen as the answer to several social problems of the day. It alleviated growing population pressures due to immigration into eastern cities, while satisfying the call for labor in agricultural areas to the west. Holt, at 27. Further, child welfare reformers felt it afforded children of the street an opportunity to grow up with rural values in more "hopeful surroundings." Id. Most placements were memorialized only with an oral agreement made at the train platform and few children were ever formally adopted, leaving them in legal limbo. Id. at 141-42.

[¶ 11] Nearly all of our Court's cases dealing with equitable adoption arise from contracts to adopt entered into in that historical context. Our case law contains three reported cases dealing with the inheritance rights of children placed out in North Dakota by the New York Foundling Hospital, a Catholic organization which began moving children westward in 1870. Holt, at 109. In addition, the companion cases of Borner v. Larson, 70 N.D. 313, 293 N.W. 836 (1940), and Muhlhauser v. Becker, 74 N.D. 103, 20 N.W.2d 353 (1945), involve children who were received under a contract to adopt with a "children's home," though that organization and the children's origin are not identified.

[¶ 12] The first of these cases is Klein v. Klein, in which a young man placed in a North Dakota home sought to inherit from his deceased "mother," Katherine Klein. 69 N.D. 353, 286 N.W. 898 (1939)....

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