IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 114

Vivian Ofosu Asiama, Plaintiff 

v.

Gabriel Asumeng, Defendant and Appellant

and

State of North Dakota, Statutory Real Party in Interest

No. 20220307

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Jay D. Knudson, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and 

Justice Bahr joined. Justice Tufte filed an opinion concurring in part and 

dissenting in part, in which Justice McEvers joined.

Pamela F. Coleman, Grand Forks, ND, for defendant and appellant; submitted 

on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 21, 2023 

STATE OF NORTH DAKOTA
1

Asiama v. Asumeng, et al.

No. 20220307

Crothers, Justice.

[¶1] Gabriel Asumeng appeals from a judgment dividing the marital estate 

and awarding Vivian Asiama primary residential responsibility of the parties’ 

children. We conclude the district court did not clearly err by awarding Asiama

primary residential responsibility; however, the court erred in its distribution 

of the marital estate. We affirm in part, reverse in part and remand.

I

[¶2] Asumeng and Asiama married in Ghana in 2011 and have two children, 

born in 2014. In 2018, Asumeng accepted a job as a physician with a Grand 

Forks medical facility. Before moving to Grand Forks, the parties lived in

Ghana, California and Ohio. In addition, Asiama periodically spent time in the 

Philippines to attend nursing school. In April 2019, Asumeng purchased the 

marital home, using $80,000 as a down payment.

[¶3] In July 2019, the parties decided the marriage was over, and Asiama 

sued Asumeng for divorce in June 2020. In August 2020, the district court 

entered an interim order awarding Asumeng primary residential 

responsibility of the children, awarding Asiama parenting time and spousal 

support and reserving child support. In November 2021, Asumeng moved to 

relocate to either Ghana or Texas with the children. The court denied the 

motion as premature because there had been no final decision on residential 

responsibility. 

[¶4] After a one-day trial in June 2022, the district court entered a judgment 

dividing the marital estate and awarding Asiama primary residential 

responsibility of the children. The court valued the property as of July 21, 2019; 

the date the parties separated. The court held Asumeng responsible for all of 

the marital debt, ordered the sale of the home in Grand Forks with the 

proceeds split evenly and denied Asiama spousal support. 
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II

[¶5] Asumeng argues the district court erred in distributing the marital 

estate.

[¶6] The district court’s distribution of marital property will not be disturbed 

on appeal unless its factual findings are clearly erroneous. Crichlow v. 

Andrews, 2023 ND 45, ¶ 7, 987 N.W.2d 666. A finding of fact is clearly 

erroneous if it is induced by an erroneous view of the law, there is no evidence 

to support it, or if, on the entire record, we are left with a definite and firm 

conviction a mistake has been made. Id.

[¶7] When a divorce is granted, the district court must equitably divide the 

marital property after considering the relevant factors under the Ruff-Fischer

guidelines. N.D.C.C. § 14-05-24(1); Buchholz v. Buchholz, 2022 ND 203, ¶ 24, 

982 N.W.2d 275. The Ruff-Fischer guidelines include the following:

“The respective ages of the parties, their earning ability, the 

duration of the marriage and conduct of the parties during the 

marriage, their station in life, the circumstances and necessities of 

each, their health and physical condition, their financial 

circumstances as shown by the property owned at the time, its 

value at the time, its income-producing capacity, if any, whether 

accumulated before or after the marriage, and such other matters 

as may be material.”

Crichlow, 2023 ND 45, ¶ 8. The court is not required to make specific findings 

on each factor, but it must explain the rationale for its decision. Willprecht v. 

Willprecht, 2020 ND 77, ¶ 19, 941 N.W.2d 556. The property distribution does 

not need to be equal to be equitable and a substantial disparity must be 

explained. Id.

[¶8] Here, the district court discussed all of the Ruff-Fischer factors. The 

court found Asumeng can earn over $800,000 annually as a physician, and 

Asiama can “earn a significant wage [as a nurse], although not to the extent 

that [Asumeng] is able.” The court awarded $95,953 in assets to Asumeng and 

$96,055 to Asiama. The court held Asumeng responsible for all of the $507,323 

in marital debt. Over sixty percent of the debt was comprised of Asumeng’s
3

$316,442 in student loans. The court found Asumeng “has far more financial 

ability to pay for the debt.” “Given [Asumeng]’s income during the parties’ 

marriage, there is no reason that [Asiama] should be left with any debt from 

the marriage.” Because the court awarded all of the marital debt to Asumeng, 

it did not award Asiama spousal support. 

[¶9] The district court valued the marital assets and debts as of July 21, 2019, 

except the marital home. Under N.D.C.C. § 14-05-24(1) (2017), the district 

court was required to value the marital estate on the separation date. Absent 

an agreement by the parties to the contrary, the “court did not have discretion 

to include property acquired after separation[.]” Berdahl v. Berdahl, 2022 ND 

136, ¶ 18, 977 N.W.2d 294. 

[¶10] Asumeng testified he purchased the marital home in April 2019 for 

$399,000, with a down payment of $80,000. The court found the home was 

acquired before the valuation date; however, the court lacked “sufficient 

information to calculate [Asiama’s] share of equity in the marital home as of 

the time of valuation.” The court concluded “the only equitable way to divide 

the equity from the marital home fairly is to have the parties sell it and split 

the proceeds.” 

[¶11] Under N.D.C.C. § 14-05-24(1), the district court must value the marital 

property as of the valuation date. “[T]he court must determine the [marital] 

property’s total value before making an equitable distribution.” Feist v. Feist, 

2015 ND 98, ¶ 6, 862 N.W.2d 817. The court’s failure to value the marital home 

as of July 21, 2019, was induced by an erroneous view of the law. The home 

was purchased only three months before the valuation date. The down 

payment (equity) was $80,000. Any payment of mortgage principal and 

increase or decrease in market value during the three-month period would be 

de minimis in a marital estate of this size. See Halvorson v. Halvorson, 482 

N.W.2d 869, 872 (N.D. 1992) (“Assuming that the court erred in its valuation, 

it was de minimis and an insignificant error that does not justify reversal in a 

case involving a marital estate of over $600,000.”). Therefore, the district court 

had all the information needed to equitably divide the shared value of the 

home. We reverse the court’s distribution of marital property, and remand for 
4

an equitable distribution. Because property division and spousal support are 

interrelated and intertwined, the court may consider its spousal support 

decision on remand. Messmer v. Messmer, 2020 ND 62, ¶ 21, 940 N.W.2d 622.

III

[¶12] Asumeng claims the district court erred by awarding Asiama primary 

residential responsibility of the parties’ children.

[¶13] A district court’s decision on residential responsibility is a finding of fact 

reviewed under the clearly erroneous standard. Cty. of Sargent v. Faber, 2022 

ND 155, ¶ 6, 978 N.W.2d 652. The court must consider the best interests of the 

child under N.D.C.C. § 14-09-06.2(1) in awarding residential responsibility. 

Faber, at ¶ 7. The best interest factors include: (a) the love, affection, and 

emotional ties between the parents and child; (b) the parents’ ability to provide 

the child a safe environment; (c) the parents’ ability to meet a child’s 

developmental needs; (d) the sufficiency and stability of each parent’s home 

environment; (e) each parent’s ability and willingness to encourage a close and 

continuing relationship with the other parent; (f) the parents’ moral fitness; (g) 

the parents’ mental and physical health; (h) the child’s home, school, and 

community record; (i) the child’s reasonable preference; (j) evidence of domestic 

violence, (k) the child’s interaction and relationship with another person who 

resides in or is present in a parent’s home; (l) a parent’s making of false 

allegations against the other parent; and (m) other relevant factors. N.D.C.C. 

§ 14-09-06.2(1).

[¶14] Here, the district court found factors (a), (b), (c), (e), (f), (g), (i), (j), (k) and

(l) favored neither party or did not apply. The court found factors (d), (h) and

(m) favored Asiama.

[¶15] Factor (d) relates to the sufficiency and stability of each parent’s home 

environment, the impact of extended family, the length of time the child has 

lived in each parent’s home, and the desirability of maintaining continuity in 

the child’s home and community. N.D.C.C. § 14-09-06.2(1)(d). The district court 

made extensive findings on this factor and found it strongly favored Asiama. 

The court found Asiama did not intend to relocate and she and the children 
5

would stay in Grand Forks if she was awarded primary residential 

responsibility. The court found in the past three years the children have made 

connections in Grand Forks and have done well in school. The court found 

Asumeng intended to move with the children to Ghana or Texas if he was 

awarded primary residential responsibility. The court found “[t]here seems to 

be little plan for the children if [Asumeng] is awarded primary residential 

responsibility aside from the fact they are moving away from Grand Forks.” 

[¶16] As to factor (h), the home, school, and community records of the children

and the potential effect of any change, the district court found this factor 

strongly favored Asiama. The court found the children have only attended 

school in Grand Forks and they enjoy living in Grand Forks. Asiama testified 

she “intend[ed] on remaining in the Grand Forks area.” The court found 

Asumeng did not intend to stay in Grand Forks. The court found, “It is always 

desirable to maintain continuity in the children’s home, school and community 

and in this case that would be accomplished by having the children residing 

with [Asiama] continuing to attend school and reside in Grand Forks.” 

[¶17] Under factor (m), the district court may consider “[a]ny other factors . . . 

relevant to a particular parental rights and responsibilities dispute.” N.D.C.C. 

§ 14-09-06.2(1)(m). The court addressed the Stout-Hawkinson factors in its 

discussion of factor (m). The Stout-Hawkinson factors are considered when a 

custodial parent requests to change the residence of a child to another state 

under N.D.C.C. § 14-09-07. Dvorak v. Dvorak, 2006 ND 171, ¶ 12, 719 N.W.2d 

362. The Stout-Hawkinson factors include:

“1. The prospective advantages of the move in improving the 

custodial parent’s and child’s quality of life,

2. The integrity of the custodial parent’s motive for relocation, 

considering whether it is to defeat or deter visitation by the 

noncustodial parent,

3. The integrity of the noncustodial parent’s motives for opposing 

the move,
6

4. The potential negative impact on the relationship between the 

noncustodial parent and the child, including whether there is a 

realistic opportunity for visitation which can provide an adequate 

basis for preserving and fostering the noncustodial parent’s 

relationship with the child if relocation is allowed, and the 

likelihood that each parent will comply with such alternate 

visitation.”

Dvorak, at ¶ 13.

[¶18] Before discussing the Stout-Hawkinson factors, the district court 

recognized this was not “a Stout-Hawkinson situation” because it was “making 

an initial determination of primary residential responsibility.” The court 

addressed the Stout-Hawkinson factors because “the parties have raised the 

issue.” The court stated it “considered [Asumeng]’s intention to relocate to 

either Ghana or Texas when the Court performed its analysis of the best 

interest factors.” Specifically, the court discussed Asumeng’s potential move in 

its analysis of factors (d) and (h). 

[¶19] After discussing each of the Stout-Hawkinson factors, the district court 

stated:

“While the Court’s analysis of the Stout-Hawkinson factors is not 

determinative in this matter, the Court still finds it is in the 

children’s best interest to not relocate to Ghana for the reasons 

outlined above. If the Court had to make a determination under 

the Stout-Hawkinson factors it would deny [Asumeng]’s request to 

allow the children to reside primarily with him in Ghana. Further, 

for the same reasons, the request to relocate the children to Texas 

would also be denied. When a person has children with another

person, he must accept that having those children might at some 

point have an impact on his ability to move wherever he wants 

whenever he wants. The Court finds this factor favors [Asiama].” 

Because factor (m) allows a court to consider other relevant factors in a 

parental rights and responsibilities dispute, the court did not err by addressing 

the Stout-Hawkinson factors as part of its consideration of factor (m).
7

[¶20] The district court’s findings on the best interest factors are supported in 

the record, and we are not left with a definite and firm conviction a mistake 

was made. The court did not clearly err by awarding Asiama primary 

residential responsibility.

IV

[¶21] Asumeng asserts the district court erred by limiting the trial to one day. 

He argues he was prejudiced because he could not get all of his testimony and 

exhibits before the court.

[¶22] “A district court has broad discretion over the presentation of evidence 

and the conduct of trial, but it must exercise its discretion in a manner that 

best comports with substantial justice.” Jalbert v. Eagle Rigid Spans, Inc., 

2017 ND 50, ¶ 9, 891 N.W.2d 135. In exercising its discretion, the court may 

impose reasonable restrictions on the length of the trial and on the number of 

witnesses allowed. Id. A court abuses its discretion if it acts in an arbitrary, 

unconscionable, or unreasonable manner, if it misinterprets or misapplies the 

law or if its decision is not the product of a rational mental process. Id.

[¶23] At the beginning of trial, Asumeng’s attorney objected to the length of 

trial, arguing one day would not be sufficient for all of the issues to be decided. 

In response, the district court indicated that “since November of 2021 it’s been 

set for a one-day trial. So if you wanted to object to that or have more time for 

trial, you should have filed some sort of request seven, eight months ago.” 

When asked whether she wanted a continuance, Asumeng’s attorney stated, “I 

don’t want to continue it. No, your Honor. It’s been almost two years already.” 

[¶24] Asumeng claims the one-day trial prejudiced him; however, he does not 

explain what additional testimony or exhibits he would have added if the trial 

had been scheduled for more than one day. The district court noted the trial 

had been scheduled for one day since November 2021. The court gave him the 

opportunity to continue the trial, but he declined. The court did not abuse its 

discretion by limiting the duration of trial to one day.
8

V

[¶25] We have considered Asumeng’s remaining arguments and conclude they 

are either without merit or not necessary to our decision. The judgment is 

affirmed in part, reversed in part, and remanded.

[¶26] Jon J. Jensen, C.J.

Daniel J. Crothers

Douglas A. Bahr

Tufte, Justice, concurring in part and dissenting in part.

[¶27] I would affirm the judgment in its entirety. I agree with the majority 

opinion except to the extent that it reverses the district court’s property 

distribution for failing to assign a value to the marital home. I would not 

reverse the district court’s property distribution because, on this record, I 

believe the error is harmless.

[¶28] The majority opinion correctly points out that the district court should 

have determined the value of the home as of the July 2019 valuation date. We 

have often said that the court must determine the total value of all marital 

property before making an equitable distribution. See, e.g., Buchholz v. 

Buchholz, 2022 ND 203, ¶ 13, 982 N.W.2d 275; Feist v. Feist, 2015 ND 98, ¶ 6, 

862 N.W.2d 817; Graves v. Graves, 340 N.W.2d 903, 906–07 (N.D. 1983). The 

parties provided the court sufficient evidence to place a value on the home. 

Asiama’s proposed property and debt distribution indicated both parties 

valued the house at $358,791 and requested the home be sold and proceeds 

divided 50/50. Asumeng’s Rule 8.3 pretrial conference statement indicated a 

value of $355,000 and an associated mortgage of $312,150. This statement 

proposed $44,000 be paid to Asiama from the sale of the home, and listed the 

house and mortgage as Asumeng’s assets ($355,000 less $312,150 resulting in 

a net value of $42,850). Asumeng also testified that he paid approximately 

$80,000 as a down payment when he purchased the house only three months 

before the valuation date. Before making an equitable distribution, the court 
9

should have placed a value on the marital home within the range of this 

evidence.

[¶29] This error is harmless because both parties agreed the house should be 

sold. The district court found this was a long-term marriage and an equal 

division of marital assets would be equitable. In furtherance of that equitable 

objective and in consideration of the circumstances of the parties, it ordered 

that the marital home be sold and the proceeds be divided equally between the 

parties.

[¶30] Any real estate valuation will be approximate. Between a court’s 

valuation and a later sale, house prices fluctuate. There are also commissions 

and other transaction costs on any sale. To ensure that the estate assets were 

divided 50-50, the court ordered the house sold and the proceeds divided 

equally. With that decision, the court ensured that whatever the ultimate sale

price of the house, the parties would share equally in that marital asset.

[¶31] To be sure, an equal and in-kind division of an asset without first valuing 

the asset is not always harmless. Graves, 340 N.W.2d at 906–07. In Graves, 

this Court reversed the district court’s award of a one-half interest in a 

business without first valuing the business in part because “the trial court did 

not indicate whether this award was in the nature of a property settlement or 

spousal support.” The Graves’ acrimony toward each other prevented their 

sharing in joint ownership of the business the court had divided equally 

between them. Id. at 907. Here, unlike in Graves, the marital asset that was 

distributed equally but not specifically valued was ordered to be sold.

[¶32] Regardless of what value the court would have placed on the house, its 

decision to award each party half of the proceeds of the sale supports the court’s 

determination that each party should receive an equal share of the marital 

assets. The court could have valued the house at $80,000 and distributed a onehalf interest in the house to each party at a value of $40,000. Where each party 

is awarded 50% of the value of a house as of the valuation date and the house 

is ordered to be sold, each party will end up with an equal share of the net sale 

price of the house regardless of the ultimate sale price. By ordering a sale and 
10

equally dividing the proceeds, the district court avoided having to award one 

party a fixed cash value as of the valuation date and assign the other party 

both the risk of an increase or a decrease in the asset value and the burden of 

transaction costs.

[¶33] The record indicates the house was sold before oral argument and 

Asiama filed a satisfaction of judgment indicating Asumeng had paid 

$79,434.64 to Asiama. This satisfied the judgment to the extent of its 

requirement that each party receive 50% of the net proceeds of the sale of the 

marital home. The valuation date was July 2019. The judgment date was 

August 2022. The house was sold in early 2023. If Asiama was awarded a 50% 

interest in the home as of the valuation date and the higher net sale price is a 

result of appreciation in value, then she received no windfall as claimed by 

Asumeng. Both parties’ half-interest would have appreciated the same 

amount.

[¶34] Because the court ordered the house to be sold and awarded an equitable 

share of the proceeds to each party, I would conclude the failure to make a 

finding on the house’s value is harmless and would affirm.

[¶35] Lisa Fair McEvers

Jerod E. Tufte