Background
Glenn Safford Dewitz appealed from a Morton County District Court judgment entered after a bench trial in his divorce proceedings against Sheree Lee Dewitz. The district court had ordered Glenn to provide discovery responses and later held him in contempt for failing to comply.
The district court found Glenn’s misconduct continued through trial and significantly prejudiced Sheree’s ability to prepare her case. As a sanction under North Dakota Rule of Civil Procedure 37, the court excluded Glenn’s property-valuation evidence. Glenn challenged that sanction and argued the resulting property valuation and distribution were clearly erroneous; Sheree responded that he had not preserved the evidentiary issue because he made no offer of proof.
The Court’s Holding
The North Dakota Supreme Court held that Glenn failed to preserve his challenge to the exclusion of his valuation evidence. When evidence is excluded as a discovery sanction, the party seeking admission must demonstrate prejudice by making the substance of the excluded evidence known to the trial court through an offer of proof. Glenn made no such offer after the court’s ruling, leaving the Supreme Court unable to determine whether the exclusion prejudiced him.
The Court also concluded that the record supported the district court’s findings of pervasive, ongoing, and substantially prejudicial discovery misconduct. After reviewing the record, it held that the property valuation and distribution were not clearly erroneous and summarily affirmed the judgment under North Dakota Rule of Appellate Procedure 35.1(a)(2) and (7).
Key Takeaways
- A party challenging the exclusion of evidence as a discovery sanction must make an offer of proof showing the substance of the evidence and resulting prejudice.
- Without an offer of proof, an appellate court cannot meaningfully review whether exclusion of the evidence was prejudicial.
- The record supported both the findings concerning Glenn’s discovery misconduct and the district court’s property valuation and distribution.
Why It Matters
The decision underscores that preservation requirements apply even when evidence is excluded as a discovery sanction. Objecting to exclusion is not enough; counsel must create a record of what the evidence would have shown and how its exclusion harmed the client.
In divorce litigation involving disputed asset values, failure to make that record can foreclose appellate review of the sanction and leave the resulting property division intact.