Background
Joseph Boyda and Sheila Tindall divorced in 2016, with Tindall receiving primary residential responsibility for their two minor children. In 2024, following Boyda’s motion for contempt and Tindall’s motion to modify parenting time, the district court ordered a three-step parenting plan beginning with supervised visits and required Boyda to undergo a mental examination. Boyda appealed, and in Boyda v. Boyda, 2025 ND 193, the North Dakota Supreme Court affirmed the contempt denial and modification decision but reversed the stepped plan, finding it improperly delegated judicial authority to the children’s therapist by allowing the therapist to veto progression between steps without criteria. The Court remanded for “re-creation of a court-supervised plan.”
On remand, the same district court judge denied Boyda’s motions to enforce the mandate, for judicial reassignment, and for court-ordered parent-child communication, concluding such relief exceeded the remand’s scope. The court declined to hold a new evidentiary hearing, instead allowing the parties to file proposed revised orders. Boyda filed two written offers of proof challenging the credibility of 2024 hearing testimony, a request for written findings, and a 48-page proposed parenting plan seeking equal residential responsibility. The district court entered its Remand Order on February 17, 2026, carrying forward the 2024 findings and psychological evaluation requirements while revising the plan to remove the therapist’s veto power and require judicial approval for progression between steps.
The Court’s Holding
The North Dakota Supreme Court affirmed the amended judgment, holding that the district court complied with the mandate rule. The Court explained that the remand’s scope was narrow—requiring only the re-creation of a court-supervised plan without improper delegation to the therapist—and did not require a new evidentiary hearing. The district court properly exercised its discretion by relying on the existing record, as the mandate did not specify the procedure to be followed. The Court rejected Boyda’s argument that the January 17, 2026 date on the Remand Order proved the court failed to review his submissions, noting the order was actually entered February 17, 2026, after all filings, and specifically referenced documents filed after January 17. The Court characterized the date discrepancy as a clerical mistake and harmless error under N.D.R.Civ.P. 61.
Regarding the merits of the re-created plan, the Court held that the Remand Order did not improperly delegate judicial authority. Unlike the previous plan, which gave the therapist unilateral authority to prevent progression, the revised plan requires Boyda to move the court and provide proof of progress, with therapists merely “encouraged” to provide recommendations and the court retaining sole authority to determine whether requirements are met. The Court distinguished Paulson v. Paulson, 2005 ND 72, which prohibited delegating custody decisions, and found the structure consistent with Wolt v. Wolt, 2010 ND 26, which permits invited professional recommendations while reserving decision-making to the court. The Court also rejected Boyda’s claim that the plan was indefinite, noting it fixed specific schedules, 120-day minimums for Steps 1 and 2, objective criteria for completion, and a terminal step of unsupervised overnight parenting time.
The Court applied the law of the case doctrine to bar Boyda’s renewed challenges to the 2024 findings, which the Court had previously affirmed as supported by the children’s testimony and other evidence. Finally, the Court awarded Tindall double costs and $1,000 in attorney’s fees under N.D.R.App.P. 38, finding that while Boyda’s other arguments were not frivolous, his persistent challenge to findings specifically decided in the first appeal was “flagrantly groundless and devoid of merit” and demonstrated bad faith.
Key Takeaways
- A remand for “re-creation” of a parenting plan does not necessarily require a new evidentiary hearing; the district court may exercise discretion to rely on the existing record when the mandate does not specify the procedure.
- A parenting plan that invites therapist recommendations but requires judicial approval for progression between steps does not improperly delegate judicial authority, distinguishing between improper delegation (Paulson) and permissible invited recommendations (Wolt).
- Under the law of the case doctrine and mandate rule, parties cannot relitigate findings affirmed in a prior appeal, and persistent challenges to such findings may support an award of double costs and attorney’s fees as a frivolous argument even when other appellate arguments have merit.
Why It Matters
This decision clarifies the scope of remand proceedings in family law cases, confirming that district courts retain discretion to determine whether additional evidence is necessary when an appellate court remands for re-creation of a parenting plan without specifying the procedure. It reinforces the distinction between improper delegation of judicial authority to therapists and permissible consideration of professional recommendations, providing guidance for drafting stepped parenting plans that maintain judicial control while incorporating therapeutic input.
The opinion also serves as a warning to litigants regarding the consequences of relitigating issues decided in prior appeals. By awarding double costs and attorney’s fees for Boyda’s persistent challenge to previously affirmed findings—despite finding his other arguments non-frivolous—the Court demonstrated its willingness to impose sanctions for bad-faith litigation tactics even within otherwise meritorious appeals.