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Johnson v. Johnson9/14/2000
ed 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.
[ ] 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.
[ ] 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.
II.
[ ] Madonna argues the trial court erred in its conclusion North Dakota does not recognize equitable adoption. We agree.
A.
[ ] 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) (" 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 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,
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