North Dakota Court Case: Johnson v. Johnson

Antonyio Johnson, Plaintiff and Appellee v. Madonna L. Johnson, Defendant and Appellant 

No. 990353 

SUPREME COURT OF NORTH DAKOTA 

2000 ND 170; 617 N.W.2d 97; 2000 N.D. 
September 14, 2000, Filed 

PRIOR HISTORY:
Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Kirk Smith, Judge. 

DISPOSITION:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

COUNSEL:
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. 

JUDGES:
Mary Muehlen Maring, William A. Neumann, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Maring, Justice. Sandstrom, Justice, dissenting. 

OPINIONBY:
Maring 

OPINION:

Maring, Justice.
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.
I.
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.
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.

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