ND Supreme Court hears appeal over child custody, summer parenting time and family farm in Shively divorce

The North Dakota Supreme Court heard argument on an appeal of a divorce decree that awarded primary residential responsibility to Sarah Shively, limited summer parenting time to short weekend visits plus seven vacation days, and gave the family's 10-acre Shively farm to Sarah Shively.

The appeal was argued by Michael Malloy, who represents appellant Kyle Shively, and by Kyle Craig, who represents appellee Sarah Shively. Sitting were Justice Daniel Crothers, Justice Lisa Fair McEvers, Justice Jared Tufty, Justice Douglas Barr and Chief Justice John Jensen.

Malloy asked the court to reverse and remand the district court's residential-responsibility award and to direct equal residential responsibility on remand. "Mr. Shively respectfully request that this court number 1 reverse and remand the district court's determination of residential responsibility with a mandate for the district court to order an award of equal residential responsibility consistent with the findings," Malloy said. He argued the district court's findings are internally inconsistent (group A findings that weigh equally and later group B findings favoring Sarah) and that paragraph 41 creates an improper presumption against awarding equal responsibility.

Malloy also asked the court, in the alternative, to remand to establish an extended summer parenting schedule. He said the district court awarded parenting time every other weekend, one overnight during the off week, and "7 days of vacation parenting time," which Malloy said is not equivalent to extended summer visitation for a fit noncustodial parent.

On the property issue, Malloy urged the court to require the district court to give explicit consideration to sentimental or family-value connections when dividing marital property. He described the disputed parcel as roughly 10 acres that Mr. Shively's parents developed and where his mother, Carol Shively, is buried. "We're urging this court to include a provision'or include within one of the current Rough-Fisher guidelines that district courts be required to look at sentimental value in family connections to a piece of property," Malloy said, citing out-of-state decisions such as Sanning v. Sanning.

Craig urged the court to affirm the district court in all respects. He repeated the common standard that "an award of primary residential responsibility is a finding of fact" and "this court will only overturn a finding of fact if it is clearly erroneous." Craig said the district court's parenting analysis is detailed and that paragraph 40 properly emphasizes stability, consistency and continuity because "Sarah remained with the children" and "these children have had one consistent caregiver their entire lives. That's been their mother." He told the justices the record showed Mr. Shively voluntarily left the marital home and that the court was justified in giving weight to continuity of caregiver and environment.

On summer parenting time, Craig said the district court's award of seven vacation days to each parent is a meaningful allocation that the court need not further justify by a formula: "This court has never defined a formula for that." He conceded, however, that the district court did not expressly explain why it declined to give additional summer parenting time.

On the farm and property division, Craig said the district court found that any other distribution would be inequitable and emphasized that forcing Sarah Shively out of the home or replacing her residence with a different parcel would be unfair under the Rough-Fisher guidelines. He told the court the district judge drew from the parties' proposed findings and the record to make a property award the judge deemed equitable.

Justices questioned both lawyers about whether the district court's findings are internally consistent, whether a primary caretaking role carries a legal presumption or only "weight," and how a property award of the marital house interacts with residential responsibility. Malloy argued the district court's order contains inconsistent findings (paragraphs 23'29 vs. paragraphs 40'41) and that the court effectively required Mr. Shively to "overcome" findings rather than applying neutral best-interest analysis. Craig responded that a holistic reading of the order supports the district court's decision and that this court lacks precedent to mandate equal residential responsibility in a close case.

No final decision was announced. Chief Justice Jensen closed the argument by saying the case would be taken under advisement and the court was adjourned until a public rules conference later the same day.

The court's eventual opinion will resolve whether the district court's factual findings were clearly erroneous in a way that warrants reversal or whether the Supreme Court should defer to the trial judge's credibility and fact determinations. The case also raises whether and how sentimental or inherited family property should be weighed in Rough-Fisher equitable-distribution analyses.