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Marsden v. Koop

October 19, 2010

SERENA MARSDEN F/K/A SERENA KOOP, PLAINTIFF AND APPELLANT
v.
JASON KOOP, DEFENDANT AND APPELLEE



Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED.

[¶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.*fn1 We affirm.

I.

[¶2] Serena Marsden and Jason Koo 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. Marsden 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 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 Marsden 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 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), (j), (k), and (l) 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 (f) through (m). Where necessary for us to refer to the statutory factors, we use the correct alphabetical designations.

III.

[¶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.

[¶13] The district court is not required to follow a custody investigator's recommendation and has the discretion in deciding what weight to assign to the investigator's conclusion. Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. Rather, the district court should take a custody investigator's report into consideration, but the court must come to its own conclusion. Id.

[¶14] In discussing the custody investigator's conclusion and recommendation, the district court found under factor (m):

"The award of physical custody is a very difficult decision in this case as both Serena and Jason are very capable parents. The custody investigator recommends that physical custody of the children be awarded to Serena. This recommendation is based on the investigator's conclusion that Serena assumes more of the day-to-day care and needs of the children and that Serena provides more emotional support for the children than Jason. While Serena may have provided more of the day-to-day care of the children at the onset of the divorce, the evidence does not show that Jason ever failed to provide the necessary care for the children or that he is incapable of providing for their care and needs.

"The Court finds that the evidence establishes that Jason is very capable of providing the necessary care for his children, without the assistance of his parents or others." The custody investigator's report also is cited by the court in findings under factor (f).

[¶15] In its opening remarks at trial, the district court informed the parties that it had read the custody investigator's report twice. In its findings under factor (m), the district court noted that it considered the custody investigator's recommendation and that it provided its reasons for reaching a different conclusion. We conclude the district court did not arbitrarily disregard the custody investigator's recommendation and testimony.

B.

[¶16] Marsden argues the district court failed to give weight to her primary residential responsibility for the children for the year prior to trial. She also contends "Jason was not an active father" and "Jason was also deficient in simple parenting tasks" so that residential responsibility of the children should be awarded to Marsden rather than to Koop. Marsden did not argue that the district court misapprehended her intention to move to Winnipeg from North Dakota or that it misapplied the law regarding relocation.

[¶17] Under factor (d), the district court found:

"The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity. The parties were married in 2000. Their first child was born in 2003 and their second child in 2006. Until the parties separated on August 26, 2008, the children have always resided with the parties at their residence . . . . Because Jason had relatives in the Grand Forks area, it was easier for him to move out of the home when they separated. Serena stayed in the marital home with their two children. Jason has parenting time with the children every other weekend from Friday after work until Monday mornings and every Wednesday evening from 5:00 p.m. to 7:45 p.m. following the weekend parenting time. When he does not have the children for the weekend, he has parenting time on Tuesdays and Thursdays from 5:00 p.m. to 7:45 p.m.

"If Serena is awarded physical custody of the children, she plans to move to Winnipeg, Manitoba, Canada. At the current time, she does not have a job in Winnipeg or a residence. It is her intention to reside with her brother until she is able to find employment and a place to live. The stability of the children's lives will be impacted by Serena's decision. The children have already lost the ability to spend a significant amount of time with their father. Further, in less than one year's time they have had a new baby introduced into their changed household and a new father figure. If Serena is awarded custody, she will cause further instability to the children's lives as they will move away from their father, their home, their friends, their daycare, and the oldest child's school. They will be moving into a new home in Winnipeg and residing not only with Serena, but also with the new baby; Serena's new male friend, Chris Norquay; and Serena's brother. Additionally, Chris has a 4-year old stepdaughter who spends a great deal of time with Chris and Serena. They expect that Chris's stepdaughter will continue to be a part of their family.

"If Jason is awarded custody, he plans to remain in the Grand Forks area, reside with the children in the marital home, and continue the children in the day care they have been attending. This factor favors an award of custody to Jason as he is able to provide a more stable environment."

[¶18] Under factor (m) the district court found:

"While Serena may have provided more of the day-to-day care of the children at the onset of the divorce, the evidence does not show that Jason ever failed to provide the necessary care for the children or that he is incapable of providing for their care and needs. When their youngest child was born, the parties agreed that Jason should quit his job and stay at home to care for AJK. Jason was a stay-at-home father for the first fifteen months of AJK's life. Serena agrees that he provided very good care for their child during this period. The parties jointly decided that AJK should be enrolled in daycare to allow him an opportunity to interact with other children. Their decision was also based upon financial reasons. Since that time, both parties have been employed full-time and have been equally involved in the childcare. The evidence shows that Serena is the parent who usually dropped the children off at daycare and picked them up from daycare, because it worked better with her work schedule than with Jason's. Both parents, however, were equally involved in getting the children up and going in the morning. Jason did testify that after the separation he made arrangements with his work schedule, which will allow him to get the children to daycare, school, and back home if he is awarded custody.

"Serena argues that Jason is too dependent upon his parents for help with the children and, thus, she should be awarded custody. Jason did testify that since the separation he usually does take the children to Thief River Falls, MN, to visit his parents on the weekends that he has custody. Jason explained the reason he does this is that the children enjoy being on the farm and spending time with their grandparents, and also, that it is easier for all of them as his basement apartment is too confining. The Court finds that the evidence ...


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