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Johnson v. Johnson9/14/2000
tion contemplated by the majority at 37 is preservation of marital harmony. Contrary to this suggestion, preservation of marital harmony is not consideration. "A contract between a husband and wife whereby one spouse agrees to perform specified obligations as part of the spouse's marital duties to each other . . . is without consideration and void as against public policy." (41 Am. Jur. 2d. Husband and Wife, § 137 (1994)). Further, N.D.C.C. § 14-07-07 provides:
A husband and wife cannot by any contract with each other alter their marital relations, except that they may agree in writing to an immediate separation and may make provision for the support of either of them and of their children during such separation. The mutual consent of the parties is a sufficient consideration for such a separation agreement.
C.
[ ] The evidence before the district court showed two previous adoption attempts were abandoned. The parties presented circumstantial evidence regarding contractual intent. Madonna Johnson and Antonyio Johnson presented contradictory testimony regarding the presence or absence of an actual intent to adopt.
[ ] Equitable adoption is a factual question, and if circumstantial evidence is presented, "that evidence must be consistent only with the existence of the equitable adoption and inconsistent with any other reasonable hypothesis leaving nothing to conjecture." 2 Am. Jur. 2d, Adoption § 53 at 938 (1994) (citation omitted). The majority, at 36, correctly states: "objective manifestations of contractual assent" are to be used in determining whether a contract exists. Id. (citing Moen v. Meidinger, 1998 ND 161, 6, 583 N.W.2d 634).
[ ] The majority, at 36, also correctly states, "evidence establishing a contract to adopt must be clear, cogent and convincing." The district court, hearing all the evidence, observing the witnesses, and assessing the credibility of those witnesses, is in a far superior position to ascertain these facts. Estate of Wenzel-Mosset, 1998 ND 16, 17, 575 N.W.2d 425 (citing Matter of Estate of Nelson, 553 N.W.2d 771, 774 (N.D. 1996)).
[ ] However, the district court may have already evaluated the evidence and found it was not probative to the issue of equitable adoption. As noted, "When the alleged adopter is the child's stepparent the courts almost invariably find the proof insufficient on the grounds that the conduct of the parties was as consistent with the normal stepparent-stepchild relationship as it was with the contract to adopt." Otero, 965 P.2d at 362 (citing Jan Ellen Rein, Relatives by Blood Adoption, and Association: Who Should Get What and Why, 37 Vand. L. Rev. 711, 781-82 (1984)).
[ ] The facts presented to the district court were sufficient to affirm the district court's opinion. Antonyio Johnson twice did not complete contemplated adoptions of Jessica, there was no consideration, the promises were illusory, there was no effort by Antonyio Johnson to interfere with Jessica Clayton's ability to obtain support from her natural parents, and Antonyio Johnson's love, affection, and acts of kindness are expected in a step-grandparent-step-grandchild relationship. Any evidence presented on remand must be consistent only with equitable adoption and inconsistent with any other hypothesis. Nothing must be left to conjecture.
D.
[ ] On remand, if the district court does determine there was a contract to adopt, in order to impose a child support obligation the court must also determine that Antonyio Johnson is estopped from denying support. It is well settled that estoppel may be claimed only by one who has detrimentally relied, and only against those causing
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