Parenting-Time Modification After In-State Relocation: Work-Availability Findings, Shively Distinguished, and “Immaterial Misstatements” Under Clearly-Erroneous Review

I. Introduction

In Markestad v. Markestad, 2025 ND 230, the North Dakota Supreme Court reviewed a district court order modifying parenting time after the primary residential parent (Joy Markestad) relocated within North Dakota—from the parties’ prior close proximity to Bismarck—changing the practical feasibility of the existing schedule.

The parties, Joy Markestad (plaintiff/appellee) and Evan Markestad (defendant/appellant), divorced in 2023 on stipulated terms. Joy received primary residential responsibility for two minor children; Evan received parenting time. In summer 2024, Evan agreed to a temporary adjustment allowing the children to spend the summer in Bismarck, after which Joy announced she would remain permanently and enrolled the children in school there. In 2025, Evan moved to modify parenting time—especially seeking a substantially enlarged summer period (essentially most of the summer).

The central issues on appeal were whether the district court: (1) misapplied the “best interests” standard by prioritizing Joy’s wishes; (2) unjustifiably limited Evan’s summer parenting time; and (3) entered findings that were incomplete, inconsistent, or unsupported by the record—particularly regarding Joy’s alleged deception and Evan’s farming schedule. Both parties also sought attorney’s fees on appeal.

II. Summary of the Opinion

The Supreme Court affirmed the modified parenting-time order and amended judgment, holding the district court’s decision was not clearly erroneous. The Court concluded the district court applied the correct legal framework (best interests of the children), made findings sufficient for review, and grounded its schedule in record-supported determinations about parental availability—especially during summer months.

The Supreme Court also denied both parties’ requests for attorney’s fees on appeal: Evan’s request failed for lack of supporting authority or reasoning; Joy’s request failed because the appeal did not meet the standard for frivolousness under N.D.R.App.P. 38.

III. Analysis

A. Precedents Cited

The Court’s reasoning is anchored in a set of familiar appellate-review and parenting-time principles, with several precedents performing distinct roles:

1. Appellate standard of review and adequacy of findings

Shively v. Shively, 2025 ND 69: Cited for the proposition that findings must be sufficiently specific to permit meaningful review. The Court also used Shively as a comparator for summer parenting time—ultimately distinguishing it.
Eikom v. Eikom, 2022 ND 91: Supplies the canonical definition of “clearly erroneous” (erroneous view of law; no evidence; or definite and firm conviction a mistake was made).
Otten v. Otten, 2023 ND 134 and Sims v. Sims, 2020 ND 110: Reinforce that appellate courts do not reweigh evidence, reassess credibility, retry the case, or substitute their judgment merely because they might have decided differently.

2. Parenting time as a best-interests inquiry and a child’s right

Hillestad v. Small, 2023 ND 195: Emphasizes the best interests of the child are paramount over the parents’ wishes.
Taylor v. Taylor, 2022 ND 39: Affirms visitation is presumed in the child’s best interests and is a right of the child, not merely a privilege of the noncustodial parent.
Dick v. Erman, 2019 ND 54 and Deyle v. Deyle, 2012 ND 248: Stand for the proposition that some form of extended summer parenting time is routinely awarded to a fit noncustodial parent, absent reasons to deny it.

3. Evidence-weighing, immaterial misstatements, and credibility

Booen v. Appel, 2017 ND 189: The district court weighs evidence; the Supreme Court does not under clearly erroneous review.
Clemenson v. Clemenson, 2025 ND 195: Even if there are misstatements, appellate courts uphold the decision if the controlling findings are supported—“immaterial misstatements” do not require reversal.
Rustad v. Baumgartner, 2018 ND 268: Reiterates deference to the district court on credibility and factfinding.

4. Attorney’s fees on appeal and frivolousness

Poseley v. Homer Twp., 2025 ND 4 and State v. Carrier, 2025 ND 41: Issues not supported by authority and rationale are not considered. These cases undercut Evan’s unsupported request to remand attorney’s fees.
McCay v. McCay, 2024 ND 130 and Williamson v. Williamson, 2025 ND 170: Define a frivolous appeal and the circumstances warranting fees under N.D.R.App.P. 38. The Court relied on these standards to deny Joy’s request.

B. Legal Reasoning

1. Best interests govern; the court need not adopt either party’s proposal

The Supreme Court framed the inquiry through N.D.C.C. § 14-05-22(2): parenting time should enable a beneficial parent-child relationship unless it is likely to endanger the child. Consistent with Hillestad v. Small and Taylor v. Taylor, the district court’s job was not to vindicate either parent’s preference, but to craft a schedule serving the children’s best interests.

A key move in the Supreme Court’s reasoning was factual: it rejected Evan’s claim that the district court “prioritized” Joy’s wishes because the district court did not adopt Joy’s summer proposal either. Instead, it fashioned a schedule that: (a) denied Evan the “full summer” he requested, (b) awarded him a defined two-week uninterrupted period (July 1–15) the court believed best aligned with his availability, and (c) added Father’s Day plus an additional two-week period usable for vacation. The district court also allocated Memorial Day and Labor Day to Joy based on findings that those holidays overlap with Evan’s busiest farming times.

2. “Extended summer parenting time” is routine—but not synonymous with “most of the summer”

Evan’s appeal leaned heavily on Shively v. Shively, where the district court gave the father no summer parenting time and inadequately explained why. The Supreme Court distinguished Shively on multiple grounds:

Procedural posture: Shively involved an initial residential responsibility determination in a divorce action; Markestad involved a modification necessitated by changed logistics after an in-state relocation by the primary residential parent.
Substantive outcome: unlike Shively, Evan was not denied extended summer time; he received a defined two-week block plus another two-week vacation period and other time.
Explanation: the district court offered a reason tied to parental availability and prior interruptions of parenting time due to Evan’s work/farming obligations.

The Court’s use of Dick v. Erman and Deyle v. Deyle is notable: those cases create an expectation that some extended summer time is typical for a fit noncustodial parent. Here, the Supreme Court treated that principle as a baseline, not a mandate for any particular duration. The controlling question remained best interests, supported by findings.

3. Conduct of the relocating parent may be considered without dictating the schedule

Evan argued Joy’s “deceit” surrounding her permanent move and school enrollment should have materially affected the parenting-time outcome. The Supreme Court responded as a factfinding-and-deference issue: the district court did consider Joy’s lack of candor and expressly stated it did not condone her deception. But the district court also evaluated Evan’s conduct (abusive language, name-calling, demeaning behavior), treating it as relevant to the parties’ dynamics.

Under Booen v. Appel, weighing these competing narratives was the district court’s function. The Supreme Court’s role was limited to whether the findings were clearly erroneous.

4. Immaterial factual imperfections do not require reversal when controlling findings are supported

Evan attacked specific findings, including the court’s characterization of why the parties agreed to the initial summer-in-Bismarck arrangement and the court’s discussion of farming/harvest demands. The Supreme Court acknowledged a narrow point: some crop/harvest details were not supported by the record. But it treated that as legally non-dispositive because: (1) the contested details were largely irrelevant to the period at issue, and (2) the “controlling findings” were supported.

The Court invoked Clemenson v. Clemenson for a practical appellate principle: reviewing courts look at the record and findings as a whole; “immaterial misstatements” do not warrant reversal if the ultimate, controlling findings are supported.

5. Attorney’s fees: briefing requirements and the high bar for “frivolous”

The Court denied Evan’s request to remand appellate fees because he provided no supporting authority or developed argument, relying on Poseley v. Homer Twp. and State v. Carrier. It denied Joy’s request for fees under N.D.R.App.P. 38 because the appeal was not “flagrantly groundless” or pursued in bad faith under McCay v. McCay and Williamson v. Williamson.

C. Impact

Markestad reinforces several practical rules likely to shape future parenting-time modification litigation in North Dakota:

Shively is not a universal template: Parties cannot treat Shively as requiring a particular quantum of summer time; rather, it requires adequate explanation, especially where extended summer time is denied altogether.
Work-availability findings can legitimately shape summer parenting time: The opinion approves a schedule calibrated to a parent’s realistic availability, including seasonal employment demands (here, farming and a bank job) and the other parent’s summer availability (here, a teacher).
Appellate leverage is limited when findings exist: Even where there are arguable overstatements or imperfections, Clemenson-style “immaterial misstatements” will not carry an appeal if the essential findings and rationale support the judgment.
Attorney’s fees on appeal remain exceptional: Unsupported fee requests will be rejected, and “frivolous appeal” findings remain a high bar, preserving room for noncustodial parents to appeal without automatic fee exposure when arguments are colorable though unsuccessful.

IV. Complex Concepts Simplified

“Clearly erroneous” (appellate review): A deferential standard. The Supreme Court does not decide the case over again. It reverses fact findings only if they reflect a legal error, lack evidentiary support, or leave the reviewing court firmly convinced a mistake was made (as framed by Eikom v. Eikom).
Parenting time vs. residential responsibility: “Primary residential responsibility” refers to the child’s primary home and primary decision-making caretaker. “Parenting time” refers to the schedule for the other parent’s time with the child. A modification may adjust parenting time to fit new logistics without changing primary residential responsibility.
“Best interests of the child”: The controlling principle: the child’s welfare and healthy parent-child relationships come before either parent’s preferred schedule (reinforced by Hillestad v. Small and Taylor v. Taylor).
“Extended summer visitation”: North Dakota case law recognizes that longer, uninterrupted summer time is common for a fit noncustodial parent (Dick v. Erman; Deyle v. Deyle), but its length and timing remain fact-driven and may be shaped by parental availability and the child’s needs.
“Immaterial misstatements”: Minor factual inaccuracies in a trial court’s explanation do not automatically require reversal if they do not affect the outcome and the key findings are otherwise supported (as applied through Clemenson v. Clemenson).
“Frivolous appeal”: An appeal is frivolous only when it is flagrantly groundless, devoid of merit, or pursued in bad faith (per McCay v. McCay). Losing is not enough; the arguments must be so baseless that success was essentially impossible (see Williamson v. Williamson).

V. Conclusion

Markestad v. Markestad underscores that parenting-time modification after an in-state relocation is a best-interests determination reviewed deferentially. The district court may craft a summer schedule that meaningfully extends parenting time yet is calibrated to the noncustodial parent’s demonstrated availability and prior schedule interruptions. The Supreme Court will affirm where the rationale is explained and supported, even if the trial court’s narrative contains minor inaccuracies that do not affect controlling findings. Finally, the decision reinforces disciplined appellate practice: fee requests must be briefed with authority, and “frivolous appeal” sanctions remain reserved for truly groundless litigation.