Background
Lukas Kostelecky and Charity Erickson are the unmarried parents of T.H.M.K., born in 2024. Kostelecky filed for an interim order in August 2024, and after a hearing at which Erickson’s attorney appeared but Erickson did not, the Stark County District Court awarded Kostelecky primary residential responsibility and granted Erickson only supervised parenting time. Erickson’s attorney subsequently withdrew, and the court scheduled a pretrial conference and jury trial for May and June 2025.
Erickson failed to appear at the May 2025 pretrial conference. The district court found she had received proper notice and, as a sanction under N.D.R.Civ.P. 16, prohibited her from introducing any evidence—through testimony, exhibits, or otherwise—at the June 2025 trial. Erickson was limited solely to testifying about her income for child support purposes and to cross-examining Kostelecky’s witnesses. After hearing only Kostelecky and his mother, the court entered judgment awarding Kostelecky primary residential responsibility, imposing supervised parenting time on Erickson, and ordering her to pay child support.
On appeal, Erickson challenged the adequacy of notice she received for various hearings, the severity of the evidentiary sanction, the primary residential responsibility award, the supervised parenting time requirement, and the child support calculation. The North Dakota Supreme Court addressed only the sanction issue as dispositive, finding the remaining issues unnecessary to resolve given its decision to remand for a new trial.
The Court’s Holding
The Supreme Court affirmed in part and reversed in part. It declined to address Erickson’s due-process notice arguments because her appellate briefs failed to comply with N.D.R.App.P. 28(b)(7)(B)(ii), which requires citation to the record showing preservation of issues for review. The court also affirmed the $350 attorney’s fee sanction and the finding that Erickson violated N.D.R.Civ.P. 16 by missing the pretrial conference.
However, the court held that the district court abused its discretion in prohibiting Erickson from introducing any evidence at trial. Relying on its prior decision in Gohner v. Zundel, 411 N.W.2d 75 (N.D. 1987), and persuasive authority from Arizona and Maryland courts, the court reasoned that in child custody proceedings the child’s best interests are paramount, and a sanction that prevents the court from receiving potentially relevant evidence bearing on the child’s best interests is categorically too severe. The district court’s own oral findings—repeatedly acknowledging it lacked information on multiple best-interest factors due to the sanction—demonstrated the harm the sanction caused.
The court remanded with instructions to hold a new trial. On remand, the district court may impose additional sanctions on Erickson for her Rule 16 violations, but any such sanctions must not impair the court’s ability to make a best-interests determination for T.H.M.K.
Key Takeaways
- In child custody cases, a court’s broad discretion to sanction Rule 16 violations does not extend to evidentiary sanctions that prevent the court from receiving evidence relevant to the child’s best interests — the child’s right to a well-informed custody decision is paramount.
- North Dakota joins Arizona and Maryland in holding that a blanket exclusion of a parent’s evidence at a custody trial is an abuse of discretion when it forecloses the court’s consideration of the child’s best interests, even where the parent’s conduct is otherwise sanctionable.
- Monetary sanctions and lesser evidentiary restrictions remain available on remand; courts must calibrate sanctions to punish parental misconduct without collaterally depriving the child of a fully informed custody ruling.
- Appellate arguments about defective notice will be waived if the opening brief fails to cite record evidence of preservation or explain grounds for plain-error review, as required by N.D.R.App.P. 28(b)(7)(B)(ii).
Why It Matters
This decision establishes a clear limiting principle on trial court sanction authority in North Dakota custody disputes: no matter how egregious a parent’s pretrial misconduct, a court cannot respond with an evidentiary blackout that undermines its own statutory duty to consider all factors relevant to the child’s best interests. Family law practitioners in North Dakota now have direct authority to challenge total evidentiary exclusions in custody proceedings, and trial courts must demonstrate that any sanction they impose leaves the best-interests inquiry intact.
The ruling also sends a practical signal to self-represented litigants and their former counsel: missing a pretrial conference will carry real consequences, including monetary sanctions and potentially significant evidentiary restrictions — just not a complete bar on presenting evidence where a child’s welfare is at stake. For appellate practitioners, the court’s strict application of Rule 28(b)(7) serves as a reminder that procedural compliance in briefing is a threshold requirement, not a mere formality.