Johnson v. Johnson, 20010288.

Decision Date20 September 2002
Docket NumberNo. 20010288.,20010288.
PartiesAntonyio JOHNSON, Plaintiff and Appellee, v. Madonna L. JOHNSON, Defendant and Appellant, and Jessica Clayton, also known as Jessica Johnson, through her Guardian ad Litem, Lynn Kerbeshian; David Clayton, as the natural father of Jessica Clayton a/k/a Johnson; and Michelle Clayton as the natural mother of Jessica Clayton a/k/a Johnson, Third Party Defendants.
CourtNorth Dakota Supreme Court

Steven James Simonson, Grand Forks, for plaintiff and appellee.

Henry H. Howe, Grand Forks, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Madonna L. Johnson appealed from a second amended divorce judgment holding she and Antonyio Johnson had equitably adopted her grandchild, ordering Antonyio to pay child support, distributing the couple's marital property, and refusing to award Madonna spousal support. We conclude the trial court's findings on property distribution and spousal support are not clearly erroneous, but we reverse the child support award and remand for recomputation of the amount of back child support owed by Antonyio.


[¶ 2] We detailed the facts of this case in Johnson v. Johnson, 2000 ND 170, ¶¶ 2-7, 617 N.W.2d 97, and will only briefly restate those facts necessary to an understanding of this appeal. Antonyio and Madonna married in 1986 while both were serving in the United States Air Force. In 1988, Madonna's granddaughter, Jessica, began living with the couple and throughout the next ten years, they raised her as their own, although no formal adoption was ever completed. Madonna retired from the military in 1992 after completing 20 years of service and began receiving her pension. Antonyio has remained in the military past the 20-year mark at which he could have retired. In 1998, Antonyio, while stationed at the Grand Forks Air Force Base, sued Madonna, who was living with Jessica and working in Kentucky, for divorce.

[¶ 3] During trial, Madonna asserted she and Antonyio had equitably adopted Jessica and sought child support, spousal support and division of the parties' military pensions. The trial court concluded North Dakota law does not recognize equitable adoptions and refused to impose a child support obligation upon Antonyio. The court divided the parties' marital property, but refused to divide their military pensions. The court also denied Madonna's request for spousal support.

[¶ 4] In Johnson, 2000 ND 170, ¶ 9, 617 N.W.2d 97, after noting the doctrine of equitable adoption "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" and "despite its name, bears almost no relationship to a statutory legal adoption" a majority of this Court concluded "the doctrine of equitable adoption may be applied to impose a child support obligation upon an equitable parent when the circumstances of the case so require," and reversed and remanded for findings on whether an equitable adoption had occurred. Id. at ¶ 34. The majority was unable to determine whether the trial court's refusal to divide the military pensions resulted in an inequitable property division, and remanded for clarification of the court's reasoning. Id. at ¶ 47. The majority upheld the trial court's refusal to award spousal support to Madonna, but allowed the court to revisit its denial of spousal support in conjunction with its clarification of the property division. Id. at ¶ 51.

[¶ 5] On remand, the trial court ordered that a guardian ad litem be appointed for Jessica, and that the child and her biological parents be served and added to the litigation as third party defendants. The guardian ad litem consented on behalf of Jessica to an equitable adoption. Both biological parents also consented to an equitable adoption of Jessica.

[¶ 6] After limiting any additional evidence on remand to affidavits, the trial court found that "Jessica has been equitably adopted by Anton[y]io and Madonna" and awarded Madonna custody of the child. The court computed Antonyio's child support obligation under the child support guidelines at $669 per month effective October 1, 2001, the month following entry of the second amended judgment. The court also ordered Antonyio to pay $500 per month child support effective August 1, 2001 to October 1, 2001. The $500 amount represents the interim child support amount which was ordered to be paid, but was terminated when the trial court initially ruled the doctrine of equitable adoption did not apply. The court again refused to divide the parties' military pensions as part of the property distribution, and refused to order either party to pay spousal support. Madonna appealed. Antonyio did not file a cross-appeal and does not challenge the trial court's finding that an equitable adoption occurred.


[¶ 7] Madonna does not argue Antonyio's child support obligation of $669 per month was incorrectly computed under the child support guidelines, but argues the court should have awarded back child support of $669 per month commencing January 1, 1999 through the entry of the second amended judgment in September 2001.

[¶ 8] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314. Because parents have a mutual duty to support their children, failure to award interim child support to a custodial parent is error as a matter of law. Ackerman v. Ackerman, 1999 ND 135, ¶ 21, 596 N.W.2d 332.

[¶ 9] The record on this issue is somewhat confusing. In Madonna's initial September 1998 motion for an interim order she requested $500 per month as "interim child support" and asked that Antonyio maintain the $454 monthly payments on her 1994 Honda Accord as "temporary spousal support." The trial court, however, ordered Antonyio to pay "interim spousal support in the amount of $500 per month, the amount that had been agreed upon and had actually been paid by Antonyio Johnson to Madonna Johnson during the period May 1997 through August 1998, with such support to commence 01 October 1998 and to be payable on the first of each and every month thereafter until further order of the court." Antonyio was also ordered to maintain the monthly car payments as "an additional aspect of temporary spousal support." At a January 1999 hearing on Antonyio's motion to amend the interim order, Madonna argued for continuation of the $500 per month "child support," which the trial court noted, "we've been calling ... spousal support." Antonyio argued the monthly car payments he was making "alone satisfie[d][the] child support [guidelines]." The trial court ruled, "whether or not there should be something characterized as child support," Antonyio would be allowed to offset the $454 per month payment on the 1994 Honda Accord against the $500 per month "interim spousal support effective January 1999." The parties nevertheless continued to refer to the $500 monthly payment as "child support," and in her post-trial brief, Madonna specifically requested "child support" of $500 per month, "commencing 01 Sep 1998, with plaintiff to be given credit for amounts paid for child support from and after that date." In its September 1999 memorandum decision rejecting the concept of equitable adoption, the trial court said "all interim orders for interim child support from Antonyio to Jessica shall be canceled as of the first day of the first month following the entry of judgment in this case," and the judgment was entered in September 1999. The "Child Support Master File Print" contained in the record states Antonyio's last payment was made on March 4, 1999.

[¶ 10] In its July 2001 memorandum decision on remand, the trial court noted that "[d]uring the pendency of this action [Madonna] has been receiving $500.00 per month from Antonyio as child support for Jessica." In ruling no retroactive effect would be given to the new computation of $669 per month under the child support guidelines, the court reasoned:

In the meantime interim child support payable by Antonyio to Madonna for Jessica shall continue at the monthly amount of $500 as previously ordered herein until judgment i[s] entered on this Memorandum Decision and Order for Judgment to be drawn therefrom. That Judgment shall decree, as of its date of entry, the existence of the equitable adoption of Jessica Clayton Johnson by Madonna and Antonyio. That effective date has been determined because the decision of the North Dakota Supreme Court authorizing equitable adoptions in divorce cases directed this Court review the facts in evidence and to enter judgment in accordance with the law as stated in the Supreme Court's opinion. Therefore, in this Court's opinion, no retroactive effect should be given to the determinations of monthly child support amount that will be ordered under this Memorandum Decision.

[¶ 11] The second amended judgment entered in September 2001 ordered Antonyio to pay $500 per month child support for August and September 2001, and to begin paying $669 per month child support effective October 1, 2001.

[¶ 12] We conclude the $500 per month awarded to Madonna in the original interim order, while technically labeled "spousal support," was intended to be child support. The parties and the court appear to have treated this amount as child support regardless of its label. From January 1999 through March 1999, the trial court allowed Antonyio to deduct the $454 car payment he was making on Madonna's vehicle from the $500 amount. We have said "an award of spousal support calculated primarily to offset and negate a child support obligation is inappropriate." Corbett v. Corbett...

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