SHIVELY v. SHIVELY (2026)

[¶1] Kyle Shively appeals from the district court's order following remand awarding Sarah Shively primary residential responsibility, awarding Kyle Shively no summer parenting time, and declining to award Kyle Shively the marital home. We addressed this case in Shively v. Shively, 2025 ND 69, 19 N.W.3d 824 (Shively I) (concluding we were unable to understand the factual basis for the district court's award of primary responsibility, the district court failed to explain the absence of extended summer parenting time, and the district court failed to find an award of the marital home to Kyle Shively was not fairly possible and did not address Kyle Shively's proposed alternative distribution of assets). Kyle Shively argues the court failed to follow our mandate on remand and erred in awarding Sarah Shively primary residential responsibility, in awarding him no summer parenting time, and in failing to address his proposed alternative distribution of assets to determine if it was fairly possible to award him the marital home. We reverse and remand for further proceedings.

I

[¶2] Our prior decision in Shively I, 2025 ND 69, sets forth relevant facts and proceedings in this case. The parties married in 2013, separated in 2023, and have three school-age children together. Id. ¶ 2. The marital home is in Pleasant Lake, North Dakota, which was Kyle Shively's family farmstead. Id. Sarah Shively resides in the marital home with the children; and Kyle Shively eventually moved to a house in Rugby, North Dakota, during the separation. Id. Sarah Shively commenced this divorce action, seeking primary residential responsibility. Kyle Shively counterclaimed requesting primary residential responsibility or, alternately, equal residential responsibility. Id. ¶ 3.

[¶3] In May 2024, the district court held a two-day bench trial. At trial, Sarah Shively proposed a parenting plan awarding her primary residential responsibility, and Kyle Shively proposed a parenting plan awarding equal residential responsibility. Shively I, 2025 ND 69, ¶ 3. Kyle Shively also proposed an alternate parenting plan awarding him parenting time in the event the court awarded primary residential responsibility to Sarah Shively, which included a provision for summer parenting time. In September 2024, the court entered its original findings of fact, conclusions of law, and order for judgment, awarding Sarah Shively primary residential responsibility and the marital home in Pleasant Lake. Id. The court did not award Kyle Shively any extended summer parenting time. A judgment was entered, and Kyle Shively appealed. Id.

[¶4] In Shively I, we held the district court failed to state its findings with sufficient specificity and reversed the judgment. 2025 ND 69, ¶¶ 1, 13-15, 19, and 28-29. We reversed and remanded “for reconsideration and a reasoned explanation of the court's award of primary residential responsibility and parenting time, and its distribution of property.” Id. ¶¶ 1, 29. On remand, Sarah Shively requested the district court allow further briefing or, alternatively, a hearing to reopen the record and submit additional evidence. Kyle Shively agreed additional briefing may be helpful given the lapse of time, but he objected to reopening the record.

[¶5] In September 2025, the district court denied the parties’ requests for additional briefing and a hearing. In its order upon remand, the court provided supplemental findings of fact and again found it was in the children's best interests to award Sarah Shively primary residential responsibility, granted Kyle Shively parenting time but no extended summer parenting time, and confirmed its award of the marital home to Sarah Shively. Based on its supplemental findings, the court found its original award “of primary residential responsibility, parenting time, and property distribution shall remain as ordered in September 2024.”

II

[¶6] Kyle Shively argues the district court failed to follow this Court's mandate on remand when addressing the issues from Shively I.

[¶7] “On remand, the district court must follow directions from this Court.” Ziemann v. Grosz, 2026 ND 6, ¶ 7, 30 N.W.3d 344 (quoting Roth v. Meyer, 2025 ND 116, ¶ 12, 23 N.W.3d 131). “The mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues in subsequent proceedings of the case and to carry the appellate court's mandate into effect according to its terms.” Id. (quoting Roth, ¶ 12). We retain authority to decide whether a district court has fully carried out the terms of our mandate. Id.

A

[¶8] Kyle Shively argues the district court erred when it awarded Sarah Shively primary residential responsibility and failed to explain why equal residential responsibility was not in the children's best interests.

[¶9] In awarding residential responsibility, the district court considers the child's best interests and welfare. Shively I, 2025 ND 69, ¶ 6; see N.D.C.C. §§ 14-09-06.2, 14-09-30(1). “The court must consider the thirteen best interest factors set out at N.D.C.C. § 14-09-06.2(1) when making its [decision.]” Armitage v. Armitage, 2024 ND 97, ¶ 6, 6 N.W.3d 828 (quoting Hillestad v. Small, 2023 ND 195, ¶ 7, 5 N.W.3d 489). While the court must consider all of the factors, it does not need to make a finding on each factor. Id.

[¶10] The district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Shively I, 2025 ND 69, ¶ 4. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if this Court, on the entire record, is left with a definite and firm conviction a mistake has been made. Id. The court must state its findings of fact with “sufficient specificity to enable a reviewing court to understand the factual basis for its decisions.” Id. (quoting Dimmler v. Dimmler, 2024 ND 20, ¶ 25, 2 N.W.3d 652). “Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial primary residential responsibility decision merely because we might have reached a different result.” Armitage, 2024 ND 97, ¶ 5 (citation omitted).

[¶11] In Shively I, we noted the district court weighed the best interest factors in reaching its decision awarding Sarah Shively primary residential responsibility and “found factors a, b, c, d, e, f, and g weigh[ed] in favor of neither party”; found “[f]actors h, i, j, k, and l were either neutral or inapplicable”; and “did not consider any other factors under factor m.” 2025 ND 69, ¶ 9. We further noted the court “weighed factors d and e together, explaining ‘factor (e) uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d).’ ” Id. ¶ 10; see also Burns v. Burns, 2007 ND 134, ¶ 17, 737 N.W.2d 243 (discussing factors (d) and (e)).

[¶12] Despite finding factors (d) and (e) favored neither party in its analysis under the factors, the district court in its “best interests factors conclusion” conflictingly found:

The court has considered all evidence at trial alongside the relevant best interest factors codified under NDCC 14-09-06.2 and ultimately finds that the best interest factors favor Sarah being awarded primary residential responsibility of the children. In particular, the court finds that NDCC 14-09-06.2(d) favors Sarah as she has provided the children with stability, consistency, and continuity their entire lives. Sarah remains in the same home that the minor children have resided in since birth and has met all of their needs.

Shively I, 2025 ND 69, ¶ 9 (emphasis added). On this basis, we held the district court's findings were “inconsistent or at the very least incomplete.” Id. ¶ 12. We held the court appeared to tie “its decision on residential responsibility to its decision awarding the marital home,” the “court's only explanation of its award to Sarah Shively [was] not supported by its own findings,” and the court did not explain its award “in light of finding all of the best interest factors as either neutral or favoring neither party.” Id. ¶ 13. We were also unable to ascertain whether the court made its award “without considering equal residential responsibility.” Id. ¶ 14. As we were “unable to understand the factual basis” for its primary residential responsibility award, we remanded “for reconsideration and a reasoned explanation of the district court's decision.” Id. ¶ 15.

[¶13] Here, in reconsidering and explaining its original decision, the district court on remand made supplemental findings of fact and found “it is in the best interest of the children that primary residential responsibility be granted to [Sarah Shively].” The court further found it was not in the children's best interests “to split their lives in an equal parenting time arrangement between their parents.”

[¶14] Among other things, the district court found the parties had attempted to share parenting time after their separation, but “the arrangement did not work out after a short time,” the parties’ working relationship “quickly broke down” resulting in an argument in a store parking lot, and the parties’ communication had only continued through the “Our Family Wizard” application. The court found Kyle Shively testified that after the parking lot incident, the parties “only communicated directly two or three times.” The court found Sarah Shively testified the children showed anxiety while the parties had their shared parenting arrangement and “the anxiety subsided after [the court's] interim order ended the shared parenting experiment.” The court found “the working relationship between the parents is not good,” the parties disagree on parenting styles, and Kyle Shively admitted to being a “disciplinarian.”

[¶15] The district court made supplemental findings on Kyle Shively's parenting plan, which “include[d] having [the children] stay at the [livestock] sales barn while he [was] at work.” Although Kyle Shively indicated he and the sale barn's other employees and owners would watch the children as he worked, the court found “that young children at the sales barn, supposedly under the supervision of other employees, is not a good plan for the children.” The court further found that “[s]itting at the sales barn all day or after school” was not an adequate daycare plan.

[¶16] In reconsidering and explaining, the district court specifically found best interest factors (d) and (e) favored Sarah Shively. The court made no mention of the other best interest factors, or that it was modifying its previous analysis of them. The court found that Sarah Shively's “sufficient and stable home environment, regardless of where that physical house is located, is better than” Kyle Shively's home environment; that she provided primary caretaking of the three young children for most of their lives and continued to do so before the divorce trial; and that her testimony—that the children's anxiety had subsided after the interim order—was “credible and reaffirming.” The court also found her testimony credible that Kyle Shively would “often” dismiss the children's requests to see him while he was still living in a camper a short distance from the marital home after he voluntarily moved out of the home in the spring of 2023.

[¶17] The district court made supplemental findings on the parties’ demeanor and presence at trial and at the interim order hearing. The court found Sarah Shively to be “appropriate and credible.” While the court found Kyle Shively “credible in some matters such as the farm, equipment, and some aspects of the financial matters,” the court also found him “to be bitter and arrogant, which is not conducive of shared parenting or for primary residential responsibility.”

[¶18] On appeal, Kyle Shively argues the district court's supplemental findings are “more inconsistent” and “at complete odds” with its original findings, particularly regarding factors (d) and (e), which now favor Sarah Shively. He argues the court did not provide a reasoned explanation of its award, engaged in a “do over” in making additional inconsistent findings, and did not adequately explain why equal residential responsibility was not in the children's best interests. He also argues the court's supplemental findings contradict its prior factor (a) findings when the court “[gave] weight” to Sarah Shively's primary caretaker status.

[¶19] It appears from our review the district court relied heavily on Kyle Shively's proposed findings in its original order, adopting many of them verbatim. Rule 7.1(b), N.D.R.Ct., allows district courts to assign preparation of proposed findings of fact and conclusions of law to the parties. As we recently noted,

We disapprove of courts adopting wholesale or verbatim, proposed findings and conclusions. Estate of Albrecht, 2020 ND 27, ¶ 9, 938 N.W.2d 151; In re M.B., 2006 ND 19, ¶ 11, 709 N.W.2d 11. Nor should litigants use proposed findings as an advocacy tool. Cty. of Sargent v. Faber, 2022 ND 155, ¶ 29, 978 N.W.2d 652 (McEvers, J., concurring). Parties must prepare proposed findings in a manner that accurately portrays the evidence presented at trial. See N.D.R.Civ.P. 11(b) (presenting a document to the court requires certification that its factual contentions have evidentiary support). However, a court's wholesale adoption of proposed findings is not reason alone to reverse its decision. In re M.B., at ¶ 11. We will uphold adopted findings if they adequately explain the rationale for the court's decision and are not clearly erroneous. Estate of Albrecht, at ¶ 9.

Kershaw v. Finnson, 2022 ND 165, ¶ 18, 980 N.W.2d 40. Here, it appears the adopted proposed findings did not match the judge's intended outcomes.

[¶20] Our mandate's terms “for reconsideration and a reasoned explanation” were sufficiently broad that the district court on remand could review the evidence and make additional findings to explain its original findings, including its findings on best interest factors (d) and (e).

[¶21] The district court's further consideration of Sarah Shively's primary caretaker role, while not paramount or presumptive in its analysis, was not, in and of itself, inappropriate. See Hillestad, 2023 ND 195, ¶ 13 (“While this Court has recognized a primary caretaker enjoys no paramount or presumptive status under the best interests of the child factors, we have also stated primary caretakers deserve recognition in custody determinations.” (cleaned up)). The district court's original findings recognized Sarah Shively as the primary caretaker under its analysis of factor (a) and found that factor did not weigh in either party's favor. However, that finding does not preclude the court's finding on primary caretaker status under factor (d) and is a consistent additional finding which supports the court's reasoning that factor (d) weighs in favor of Sarah Shively.

[¶22] Following remand, when discussing division of parenting duties, the district court relied on Sarah Shively's testimony that she was the parent providing most of the medical care. This finding provides further support of Sarah Shively being the primary caretaker but appears to be inconsistent with the court's original findings on factor (b). In its analysis of factor (b), the court stated:

[A]s it relates to medical care, the parties testified that they have both identified medical issues of the children, have each taken the children to medical appointments, and have each communicated with each other in regard to the children's medical care. The court received testimony that Kyle and Sarah divided duties relating to the kids going in for orthodontic care, for their counseling appointments, routine medical appointments, and the emergency when T.C.S. broke her arm.

Even assuming this finding applies to the analysis under either factor (d) or (e), the court did not explain whether factor (b) now weighs in favor of either party.

[¶23] The district court also considered and found an award of equal residential responsibility would not be appropriate because the parties’ initial shared parenting arrangement did not work out after a short time, their communication was lacking and working relationship was not good, Kyle Shively's parenting plan to have other employees at the sale barn watch the children was not adequate, and Sarah Shively's testimony the children's anxiety subsided after the interim order was credible. The court also found Kyle Shively's “bitter and arrogant” attitude was not conducive of shared parenting.

[¶24] These new findings are inconsistent with the district court's original findings regarding communication under factors (d) and (e) without any explanation for the change. The court originally found:

The court heard no concerning evidence that the parties will be unable to encourage and facilitate a positive relationship between the children and the other parent. Both Sarah and Kyle have committed to not talking negatively about each other. In regard to Kyle's position in this regard, his sister, Erica, testified that Kyle is very conscientious about having any conversation about Sarah when the children are present. Sarah raised concerns that her and Kyle's communication is problematic. However, the court's review of the Our Family Wizard messages ․ indicates that the parties are able to effectively communicate with each other. The written communications demonstrated that the parties had flexibility in scheduling matters with the children, they effectively coordinated pickups/drop offs, and they maturely communicated with each other when the children had any health issues or appointments.

In addition, the new findings are inconsistent with the court's original findings under factor (b) regarding the children's exposure to cattle at the sale barn. The court originally found:

Finally, both parties provide a safe environment for the children. Sarah has called into question Kyle taking the children to work with him as she believes it to be an unsafe setting for the children. In response to this, the court heard testimony from both Kyle and Allison that the children are always watched when they are at the sale barn. Kyle and Scott also testified that the children have grown up around cattle and it is part of their family history. Scott testified to the children's desires to be involved with cattle and has gifted each child cattle.

The court's revised findings portray the sale barn as a dangerous place when it previously considered it a safe environment. While the court may consider the same facts under more than one factor, the inconsistent findings are concerning without an adequate explanation of why the court has diverged from its original findings.

[¶25] We conclude the district court has not fully carried out the terms of our mandate from Shively I regarding its award of primary residential responsibility. The court on remand made supplemental findings reconsidering findings not challenged and made findings inconsistent with its original findings without an adequate explanation for the inconsistencies in its attempt to explain its decision to award Sarah Shively primary residential responsibility and its decision for not awarding equal residential responsibility. There are also several additional inconsistencies we decline to address.

[¶26] The district court's order lacks the findings necessary for informed appellate review, and we are still unable to understand the basis for its decision. We therefore conclude the court's award of primary residential responsibility to Sarah Shively is clearly erroneous. We reverse and remand for reconsideration of the issues on residential responsibility.

B

[¶27] Kyle Shively argues the district court erred when it awarded him no summer parenting time.

[¶28] “[P]arenting time between a parent without primary residential responsibility and a child is presumed to be in the child's best interests and that it is not merely a privilege of the parent, but ‘a right of the child.’ ” Seibold v. Leverington, 2013 ND 173, ¶ 19, 837 N.W.2d 342 (quoting Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896). In awarding parenting time to the parent without primary residential responsibility, the child's best interests, rather than the parents’ wishes or desires, are paramount. Shively I, 2025 ND 69, ¶ 18. We review the district court's parenting time decision under the clearly erroneous standard. Id. ¶ 4.

[¶29] In its original parenting time decision, “[t]he district court awarded both parties seven days of vacation parenting time, which differs from extended summer parenting time,” and “[t]he judgment [did] not address summer parenting time.” Shively I, 2025 ND 69, ¶ 17 (emphasis added). In Shively I, we noted that “Sarah Shively's post-trial brief asked the district court to adopt her proposed parenting plan, ‘with the minor correction that Sarah would agree to Kyle having increased summer parenting time.’ ” Id. We further noted the court had failed to explain its omission of summer parenting time “[d]espite this apparent agreement regarding extended summer parenting time.” Id. In Shively I, we explained that, “[a]bsent a reason for denying it,” some form of extended summer parenting time with a fit parent without primary residential responsibility “is routinely awarded if a child is old enough.” Id. ¶ 18 (quoting Deyle v. Deyle, 2012 ND 248, ¶ 19, 825 N.W.2d 245 (cleaned up)). We held the “district court's failure to explain the absence of extended summer parenting time was error” and “requir[ed] remand for reconsideration and a reasoned explanation of the court's decision.” Id. ¶ 19.

[¶30] Here, the district court on remand again declined to award Kyle Shively extended summer parenting time. While the court acknowledged Sarah Shively “would agree to increased summer parenting time,” the court explained “no specific proposal was presented.” The court further stated that Kyle Shively “did not acknowledge the offer, nor did he present a summer visitation plan other than his equal parenting time. Thus, the extended summer parenting time was a general concept in plaintiff's final argument.” The court suggested the parties could agree to change the court's award of parenting time.

[¶31] Contrary to the district court's findings, Kyle Shively submitted at trial an alternate parenting plan, which included a proposed parenting time schedule with extended summer parenting time if the court awarded Sarah Shively primary residential responsibility. [See R98:7, Ex. 201- Defendant's Proposed Parenting Plan; 5-29-2024 Court Trial, R116:228.] Specifically, Kyle Shively proposed the following:

c. Summer Parenting Time: Summer parenting time is defined as the first full week after school finishes and extends to the first full week prior to school resuming. During the summer, the parties shall rotate parenting time on a week on, week of [sic] basis with exchanges occurring Sundays at 5:00 p.m.

[¶32] In Shively I, we did not direct the district court on remand to award extended summer parenting time, but we did require the court to explain its “omission” or “absence” from its parenting time award. 2025 ND 69, ¶ 19. Although the court on remand explained that it lacked a “specific proposal” or that extended summer parenting time was a “general concept in [Sarah Shively's] final argument,” the court did not consider Kyle Shively's alternate proposed parenting plan's summer parenting time if the court awarded Sarah Shively primary residential responsibility. Because the court did not provide a “reasoned explanation” of its decision not to award extended summer parenting time, we conclude the court's continued failure to award extended summer parenting time is clearly erroneous.

[¶33] We therefore reverse the order and remand the case to the district court with instructions to consider the parties’ proposals for an award of extended summer parenting time and to enter an order awarding Kyle Shively extended summer parenting time, if appropriate, as soon as practicable. The court may include any such summer parenting time as part of the interim order until an amended judgment fully addressing residential responsibility is entered.

C

[¶34] Kyle Shively argues the district court erred when it failed to address his proposed alternative distribution of assets to determine if it was “fairly possible” to award the marital home to him.

[¶35] As discussed in Shively I, “[s]eparate property, even if it is inherited, must initially be included in the marital estate, but the property's origin may be considered when equitably dividing the estate.” 2025 ND 69, ¶ 21 (quoting Fugere v. Fugere, 2015 ND 174, ¶ 8, 865 N.W.2d 407). “After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.” Id. ¶ 22 (quoting Lee v. Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104 (citation omitted)). The Ruff-Fischer guidelines provide the following factors for consideration in equitably dividing the marital estate:

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. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Id. (emphasis added). “The district court is also required to consider the source of the property in determining an equitable allocation of the parties’ marital property.” Id. “While the origin of property must be considered, there is no requirement to set property aside for a spouse who brings property into a marriage.” Id. As we further stated:

In Gaulrapp v. Gaulrapp, this Court explained: “The origin of the property owned by the parties can be considered by the trial court under the guidelines, and we have acknowledged that inherited property should be set aside to the heir where fairly possible.” 510 N.W.2d 620, 621 (N.D. 1994) (cleaned up). Following Gaulrapp, this Court clarified: “We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse.” Hogan v. Hogan, 2003 ND 105, ¶ 21, 665 N.W.2d 672 (citation omitted).

Id. ¶ 24 (cleaned up). We review the district court's distribution of marital property as a finding of fact, which will not be reversed unless the findings are clearly erroneous. Id. ¶ 4 (quoting Walden v. Walden, 2025 ND 32, ¶ 16, 17 N.W.3d 521 (citation omitted)).

[¶36] In Shively I, the district court awarded Sarah Shively the marital home “under a general list of assets without explanation of its award”; as such, we could not conclude the court “unequivocally considered the source of the property as well as the Ruff-Fischer guidelines in coming to its distribution decision, because the court failed to address the arguments or facts underlying its award of the marital home to Sarah Shively.” 2025 ND 69, ¶¶ 27-28 (cleaned up). We held the court “did not find an award of the marital home to Kyle Shively was not ‘fairly possible’ ” and “did not address Kyle Shively's proposed alternative distribution of the assets.” Id. ¶ 28. Again, we remanded “for reconsideration and a reasoned explanation of the district court's decision.” Id.

[¶37] In its original decision distributing the marital estate, the district court considered the Ruff-Fischer guidelines, but only noted the parties’ arguments and testimony regarding the marital home's sentimental value and awarded Sarah Shively the home without explanation. On remand, the court made supplemental findings explaining its decision to award Sarah Shively the marital home and not to grant Kyle Shively's alternative proposed distribution. The court on remand ultimately found “[i]n the totality of these circumstances, ․ it was not fairly possible to grant [Kyle Shively] his childhood home without creating further harm and emotional stress upon the children and financial and tax difficulties inherent in the sale of real estate.”

[¶38] In its supplemental findings, the district court found Kyle Shively's and his family's “emotional attachment” to the marital home was “clearly established and recognized by this court,” but the court also made findings discounting that attachment. While acknowledging “their family matriarch's [Kyle Shively's mother's] ashes are buried” in a flower bed at the home, the court found the family had moved away and had not frequently visited, and Kyle Shively voluntarily moved out of the home and purchased another house in Rugby. The court explained that a decision to award Kyle Shively the marital home would have “prioritized” him and his family's emotional attachment over the children's “current emotional stability” living in the home. The court found, “The emotional well-being of these three minor children takes precedence over the emotional attachment of several adults to a house that they voluntarily left and moved away [sic].”

[¶39] The district court further explained that it considered Kyle Shively's alternate proposal the court grant him the marital home with Sarah Shively being awarded “some farm and ranch land that she could sell.” In rejecting the proposal, the court found that Kyle Shively had testified about his concern “over the capital gains taxes that would have to be paid upon the sale of any of the real estate” and his proposal “would create a problem with capital gains as [he] himself had voiced.” The court explained it did not grant Kyle Shively's proposal because “it would be causing more harm to the children,” “it would potentially create capital gains headaches,” and the property distribution was made equitable by “allow[ing] the children to continue residing in the marital home and [Kyle Shively] being granted the farm/pasture land.” The court found that “[n]o financially mandated sales would be necessary, and no capital gains problems would be created by the court-ordered dissolution of the marriage.”

[¶40] Kyle Shively argues that the district court's supplemental findings are in direct contradiction to the court's original findings; the court did not contemplate the “true significance of the property which was discussed at great length during trial”; and the court's analysis of whether it was “fairly possible” to award him the marital home was flawed. While he “acknowledges that capital gains tax would likely be incurred in the event of the sale of the parties’ agricultural land,” he contends his proposed distribution included selling his Rugby home with Sarah Shively being awarded the net proceeds from the sale, which would incur no capital gains tax. He argues his proposed property and debt distribution would thus result in “no capital gain problems,” an award of the marital home to him and an equitable distribution of other assets to Sarah Shively is “fairly possible,” and the court's decision is clearly erroneous.

[¶41] On our review, the findings of potential “capital gains headaches” lacks specificity and provides no analysis of the financial impact. The order on remand does not discuss or analyze the Ruff-Fischer guidelines or any cases addressing them and does not address the alternative distribution of marital property or avoidance of capital gains by sale of the Rugby home in lieu of selling farmland. Instead, the court based its decision by expressing, but not explaining, a potential “problem with capital gains.” While the potential “financial and tax difficulties inherent in the sale of real estate” might be a reason to award the marital home to one party or another, to make an informed decision, more specific information is necessary to determine the actual or estimated financial implications. The district court's order does not address the proposed alternative property distribution, the amount and apportionment of capital gains, or whether inequity could be mitigated by sale of the Rugby home or farmland. Therefore, the court's order fails to provide the necessary information to support the conclusion that “financial and tax difficulties” are unavoidable.

[¶42] We also consider the district court's supplemental findings and analysis weighing evidence of Kyle Shively's asserted sentimental or emotional attachment to the marital home and the children's emotional stability in remaining in that home. As the court found, evidence in the record establishes the marital home's source or origin and Kyle Shively's emotional attachment to the home. Kyle Shively testified that his father built the home, he grew up there and has ties to the home, his mother's ashes are buried in the backyard by a flower garden, he desires to guarantee his family access to the burial site, and wants to keep the family farmstead together.

[¶43] However, there is also evidence in the record regarding the children's emotional stability in the marital home. Sarah Shively testified that the children showed anger and anxiety and were insecure and struggling when the parties initially attempted to share residential responsibility, but that had subsided after the court's interim order granting her primary residential responsibility. She further testified that the children have continuity and stability and are well-established in the marital home, that the children have lived there their entire lives and have been through a lot of change, and that the children are most comfortable in the marital home.

[¶44] As discussed, the Ruff-Fischer guidelines allow a district court to consider “such other matters as may be material.” Shively I, 2025 ND 69, ¶ 22. The district court on remand made findings that considered the marital home's source or origin but also explicitly weighed against or discounted Kyle Shively's claimed “sentimental value” or “emotional attachment.” In deciding it was not “fairly possible” to grant Kyle Shively the marital home, the district court discounted his emotional attachment to the property, relied on the children's emotional stability in continuing to reside there, and considered “financial and tax difficulties inherent in the sale of real estate.”

[¶45] Because the district court's decision to award Sarah Shively the marital home did not adequately explain the “financial and tax difficulties” and was intertwined with its decisions on residential responsibility—which issues we have already remanded—we also remand for the court to reconsider issues on property distribution.

III

[¶46] Kyle Shively requests this case be reassigned to a different judge if it is again remanded. He contends the district court has an “inability or unwillingness” to follow the mandate rule on summer parenting time and its distribution of the marital home. He claims the “district court judge has called into question his bias through his actions on remand.”

[¶47] “Adverse rulings alone are not evidence of judicial bias or partiality.” Edison v. Edison, 2024 ND 196, ¶ 9, 13 N.W.3d 110; Berdahl v. Berdahl, 2024 ND 73, ¶ 8, 5 N.W.3d 778; see also Rath v. Rath, 2016 ND 105, ¶ 13, 879 N.W.2d 735. This Court has stated:

“The purpose of reassignment is, in part, to preserve the integrity of the court, to protect litigants from bias, and to ensure that allegations of prejudice do not affect fair administration of the law.” T.F. James Co. v. Vakoch, 2001 ND 112, ¶ 18, 628 N.W.2d 298. This Court weighs several “competing interests” when deciding whether to remove a district court judge from a case. Id. at ¶ 19. This Court retained a judge where a record was voluminous and there had been an exceptional number of proceedings, where having experience working on the case was beneficial, where the trial judge may have been confused about the law, and where the allegations of bias were of “subconscious bias” rather than “actual bias.” Id. On the other hand, “when there is an allegation of prejudice presented to this court, we favor granting the change of judge in a situation where the judge would be presiding at the trial on the merits.” Blomquist v. Clague, 290 N.W.2d 235, 240 (N.D. 1980) (quotations omitted); United Hosp. v. Hagen, 285 N.W.2d 586, 589 (N.D. 1979); see also Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 583 (N.D. 1991) (“Blomquist and Hagen suggest that we apply a stricter standard when allegations of prejudice are made against a judge who will try the case without a jury upon retrial.”).

Edison v. Edison, 2023 ND 141, ¶ 25, 994 N.W.2d 151. We have ordered a change of judge when there was an “inability or unwillingness to follow [its] mandate, and out of concern for the tumult from and cost of litigation.” Law v. Whittet, 2015 ND 16, ¶¶ 11-12, 858 N.W.2d 636 (reassigning when this Court had “already concluded the district court's award of joint residential responsibility [was] clearly erroneous”; on remand, the court granted what is called “primary residential responsibility” ․ but “actually continued joint residential responsibility”).

[¶48] In Shively I, we reversed and remanded “for reconsideration and a reasoned explanation of the [district] court's award of primary residential responsibility and parenting time, and its distribution of property.” 2025 ND 69, ¶ 29. The court's supplemental findings on remand did not adequately address our concerns. The judgment is reversed and remanded for further proceedings. A change of judge is ordered upon remand because of the currently assigned judge's inability or unwillingness to follow our mandate, and out of concern for the tumult from and cost of litigation to the parties. On remand, the district court will need to make a certification under N.D.R.Civ.P. 63 prior to conducting further proceedings. Rule 63, N.D.R.Civ.P., requires:

If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at the party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.

IV

[¶49] We reverse and remand for the district court to enter its own findings and amended judgment on residential responsibility, summer parenting time, and distribution of marital property. We caution against the use of proposed findings without adequate consideration. We further direct the court to promptly consider the parties’ proposals for an award of extended summer parenting time and to enter an award of extended summer parenting time, if appropriate, as soon as practicable, even if only on a temporary basis.

Fair McEvers, Chief Justice.

[¶50] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese