## Facts

- Serena Marsden and Jason Koop married in 2000 and had two children (born 2003 and 2006).
- During the marriage’s deterioration, Marsden began a relationship with another man and later had a third child (born 2009) whom the court found was not Koop’s.
- All children were enrolled as members of the Fairford First Nations (Manitoba, Canada).
- Marsden filed for divorce in 2008; the older two children lived primarily with Marsden during separation, with parenting time for Koop.
- After a 2009 trial, the district court granted the divorce and awarded Koop primary residential responsibility for the two older children, with parenting time for Marsden and joint decision-making responsibility.
- The district court ordered Marsden to pay child support.
- In property division, the court awarded Koop the Grand Forks marital home and awarded Marsden inherited interests in a Winnipeg home and a business, plus certain bank accounts, then ordered Marsden to pay an $18,500 equalization payment.
- Koop asserted an $8,000 loan from his father used for attorney’s fees and living expenses; despite no written loan terms, the district court treated it as marital debt.

## Issues

1. Whether the award of primary residential responsibility to Koop was clearly erroneous under the statutory best-interests factors, including the court’s handling of a custody investigator’s recommendation, the children’s First Nations background, and separation from their half-sibling.
2. Whether the district court clearly erred in classifying an informal $8,000 family loan as marital debt.
3. Whether the district court clearly erred by including Marsden’s inherited interests in a Winnipeg home and a business in the marital estate for equitable distribution.

## Decision

- The Supreme Court of North Dakota affirmed the judgment and amended judgment in all respects.
- The custody award to Koop was supported by the record and not clearly erroneous.
- The $8,000 from Koop’s father could be treated as marital debt based on trial testimony and the district court’s fact-finding.
- The inherited assets were properly included in the marital estate under North Dakota’s equitable distribution approach, and the overall division (including the equalization payment) was not clearly erroneous.

## Legal Principles

- A primary residential responsibility determination is a finding of fact reviewed for clear error; appellate courts do not reweigh evidence or reassess credibility.
- A district court must consider the statutory best-interests factors; it may accept or reject a custody investigator’s recommendation if it considers the evidence and explains its reasons.
- A child’s cultural heritage may be considered within the best-interests analysis, but absent a statutory requirement, it need not be treated as a separate, mandatory factor with discrete findings.
- Whether an obligation is marital debt is a factual question; informal family loans may be included as marital debt if supported by credible evidence.
- Under Ruff–Fischer equitable distribution, all property owned by either spouse, including inherited property, is initially included in the marital estate; the question on review is whether the overall distribution is equitable.

## Conclusion

The court upheld a fact-driven custody determination favoring the parent offering greater stability and affirmed an equitable property and debt distribution that included an informal family loan as marital debt and treated inherited property as part of the marital estate.


Marsden v. Koop, 789 N.W.2d 531 (N.D. 2010)