Marsden v. Koop

2010 ND 196, 789 N.W.2d 531, 2010 N.D. LEXIS 192
North Dakota Supreme Court·Decided October 19, 2010·No. No. 20090285·Published·Cited by 35 cases

Opinions

CROTHERS, Justice.

[¶ 1] Serena Marsden, formerly known as Serena Koop, appeals a district court judgment awarding primary residential responsibility of the parties’ minor children to Jason Koop and dividing the marital property.1 We affirm.

I

[¶ 2] Serena Marsden and Jason Koop were married on June 10, 2000, and have two children together: A.J.K. was born in 2003, and A.S.K. was born in 2006. Mars-den and Koop had marital difficulties and started marital counseling in May 2008. Marsden met Chris Norquay in June 2008 and began a relationship with him in June or July 2008. Marsden gave birth to G.W.N. in 2009. Chris Norquay is G.W.N.’s father. All the children are enrolled with the Canadian Indian Affairs as members of the Fairford First Nations in Manitoba, Canada.

[¶ 3] Marsden is a Canadian citizen and a United States resident. She is employed as a child protection worker for Grand Forks County Social Services. Koop is a United States citizen and is employed as a machinist for Northern Valley Machines in East Grand Forks, Minnesota. In August 2008, Marsden filed for divorce from Koop, and Koop moved out of the marital home. During the separation, the children resided with Marsden in the marital home, and Koop had parenting time with his children.

[¶ 4] The case was tried on July 29, 2009. At trial, evidence and testimony revealed that in 2003, Marsden inherited a one-third interest in a home and a business in Winnipeg, Manitoba, Canada, after the death of her father. Marsden has two siblings. Marsden and her brother bought their sister’s interest in the home with their inheritance money.

[¶ 5] Koop testified that he received a $8,000 loan from his father and that he spent $5,000 of it on attorney’s fees. He testified the remaining $3,000 was used for living expenses. He included the $8,000 loan under his property and debt listing. He also testified that he does not have a [536] payment schedule or a written agreement for the repayment of the loan, but that he and his father have a mutual understanding.

[¶ 6] On August 3, 2009, the district court issued its findings of fact, conclusions of law, order for judgment, and judgment, granting the divorce, finding Koop was not G.W.N.’s father and awarding Marsden her maiden name. The court issued additional findings of fact, conclusions of law, and order for an amended judgment on September 23, 2009. The amended judgment was filed on October 26, 2009. The court awarded primary residential responsibility of A.J.K. and A.S.K. to Koop with parenting time to Marsden and provided that the parties share decision-making responsibility. Marsden was ordered to pay child support to Koop. The district court divided the property, giving Koop the marital home in Grand Forks and Marsden the property in Winnipeg. It awarded Mars-den the interest in her deceased father’s business, a United States checking account, and a Canadian savings account, subject to a payment of $18,500 to Koop to equalize the property and debt distribution. The court ordered each party to be responsible for his or her own attorney’s fees.

[¶ 7] Marsden appeals, arguing the district court clearly erred by (1) awarding primary residential responsibility of the children to Koop; (2) including the $8,000 loan Koop received from his father as a marital debt; and (3) including the home and business interest Marsden inherited in the marital estate.

II

[¶ 8] “An award of [primary residential responsibility] is a finding of fact which this Court will not disturb unless it is clearly erroneous.” McAllister v. McAllister, 2010 ND 40, ¶ 13, 779 N.W.2d 652 (quoting Interest of D.P.O., 2003 ND 127, ¶ 6, 667 N.W.2d 590). “Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made.” McAllister, at ¶ 13 (quotation omitted). This Court has explained the standard of review in a primary residential responsibility determination:

“Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of the witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result. This is particularly relevant for custody decisions involving two fit parents.
“A district court cannot delegate to a[n] ... independent investigator its authority to award custody to the parent who will promote the best interests and welfare of the child. The district court has discretion to determine what weight to assign to the custody investigator’s conclusions. The district court does not have to, nor should it, regard a custody investigator’s recommendation as conclusive.”

Heinle v. Heinle, 2010 ND 5, ¶¶ 6-7, 777 N.W.2d 590 (quotations and citations omitted). The district court cannot arbitrarily disregard the custody investigator’s report and testimony. McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995).

[¶ 9] An initial custody determination requires that the district court award primary residential responsibility of children to the parent who will better promote the best interests and welfare of the children. See Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In determining [537] the best interests of the children, the court must consider all of the relevant factors in N.D.C.C. § 14-09-06.2(1). Bernhardt v. Harrington, 2009 ND 189, ¶ 6, 775 N.W.2d 682.

[¶ 10] The district court found factors (a), (b), (c), (g), (h), (i), a), (k), and (Z) favored neither parent, no factor favored Marsden, and factors (d), (f), and (m) favored Koop. The court did not specifically include statutory factor (e) in its analysis and alphabetically designated the remaining factors so that its factors (e) through (l) correspond with the statutory factors CO through (m). Where necessary for us to refer to the statutory factors, we use the correct alphabetical designations.

Ill

[¶ 11] Marsden argues the district court clearly erred in its analysis of the best interest factors by arbitrarily disregarding the custody investigator’s testimony and report, failing to give appropriate weight to her primary residential responsibility of the children since August 2008, failing to consider the children’s cultural background, erroneously separating the half-siblings, failing to consider the best interests of the children under the factors and making findings not supported by or contrary to the evidence. After extensive review of the record, we conclude the district court’s findings of fact are not clearly erroneous.

A

[¶ 12] Marsden argues the district court erred awarding Koop primary residential responsibility when it arbitrarily disregarded the testimony and contrary recommendation of the custody investigator.

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Marsden v. Koop, 2010 ND 196, 789 N.W.2d 531, 2010 N.D. LEXIS 192 (N.D. 2010).

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