IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 193
Sheila K. Boyda (n/k/a, Sheila K. Tindall), Plaintiff and Appellee
v.
Joseph A. Boyda, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20250054
Appeal from the District Court of Cass County, East Central Judicial District, the
Honorable John C. Irby, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
Alexa M. Lecomte, Fargo, ND, for plaintiff and appellee.
Joseph A. Boyda, Fargo, ND, defendant and appellant.
Boyda v. Boyda, et al.
No. 20250054
Crothers, Justice.
[¶1] Joseph Boyda appeals from a district court order, claiming the court erred
by admitting his children’s affidavits, modifying his parenting time, and
improperly delegating authority to a therapist to regulate the stepped parenting
plan. Joseph Boyda also claims the court erred by requiring an examination
under N.D.R.Civ.P. 35, requiring him to pay the costs for the examination and
supervised parenting sessions, and not holding Sheila Boyda in contempt. Sheila
Boyda moves to strike portions of Joseph Boyda’s brief due to his inclusion of
facts outside the record. We affirm in part, reverse in part, and remand for
proceedings consistent with this decision.
I
[¶2] Joseph and Sheila Boyda married in 2005. They have two minor children
and one adult child. In May 2016, the parties divorced and a parenting plan was
created. In May 2024, Joseph Boyda filed a motion for contempt, alleging Sheila
Boyda prevented a continuing relationship and communication with the
children, and violated the parenting plan. Sheila Boyda responded, moved for a
modification of parenting time, and requested a mental examination of Joseph
Boyda under N.D.R.Civ.P. 35 “[t]o understand Joseph’s anger and control issues
. . . [and] risk to the parties’ children.” Sheila Boyda offered her and the three
children’s affidavits as evidence in support of her motion. The children’s
affidavits claimed Joseph Boyda yelled at them, made fun of them, and mocked
Sheila Boyda. Joseph Boyda moved to strike the children’s affidavits as
inadmissible hearsay. The district court denied the motion to strike and admitted
the affidavits into evidence. Later that day, the court took testimony from the
children.
[¶3] On December 26, 2024, the district court entered its findings of fact,
denying Joseph Boyda’s motion for contempt, reducing his parenting time, and
ordering a Rule 35 mental examination of Joseph Boyda. The court required
1
Joseph Boyda to pay the costs of the examination and supervised parenting
sessions. Joseph Boyda filed a timely appeal.
II
[¶4] Joseph Boyda claims the district court abused its discretion when it
admitted the children’s affidavits over his objection. Joseph Boyda argues these
affidavits constituted inadmissible hearsay.
[¶5] “The district court exercises broad discretion in determining whether to
admit or exclude evidence, and its determination will be reversed on appeal only
for an abuse of discretion.” State v. Ziegler, 2025 ND 78, ¶ 9,
20 N.W.3d 131. “The
court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law.” Holm
v. Holm,
2025 ND 100, ¶ 7,
21 N.W.3d 96 (cleaned up).
[¶6] Hearsay is a “statement that the declarant does not make while testifying
at the current trial or hearing” and is “offer[ed] in evidence to prove the truth of
the matter asserted in the statement.” N.D.R.Ev. 801(c). Affidavits are
inadmissible hearsay unless subject to an exception. See Davis v. Romanyshyn,
2025 ND 18, ¶ 9,
16 N.W.3d 464 (“Davis’s petition and Romanyshyn’s affidavit,
unless subject to an exception, are inadmissible hearsay statements under
N.D.R.Ev. 801(c). Cusey [v. Nagel],
2005 ND 84, ¶ 15,
695 N.W.2d 697.”). The
children’s affidavits are hearsay because they were statements made at out of
court and offered to prove the events described in the affidavits.
[¶7] Sheila Boyda claims the children’s affidavits were admissible under the
residual exception in N.D.R.Ev. 807. Sheila Boyda did not argue for the
application of this rule at the district court, and the court did not rely on this
exception when it admitted the affidavits. “[A] touchstone for an effective appeal
of an issue requires the issue to be properly raised in the district court so that
court can intelligently rule on the issue.” Brouillet v. Brouillet,
2016 ND 40, ¶ 32,
875 N.W.2d 485. “[A] party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and if the ruling
admits evidence, a party, on the record: (A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context.”
Id. The
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issue is waived on appeal because Sheila Boyda did not raise the issue and the
district court did not rule on the residual exception.
[¶8] The district court admitting the children’s affidavits was a misapplication
of the law and an abuse of discretion, however, the error was harmless.
Unless justice requires otherwise, no error in admitting or excluding
evidence, or any other error by the court or a party, is ground for
granting a new trial, for setting aside a verdict, or for vacating,
modifying, or otherwise disturbing a judgment or order. At every
stage of the proceeding, the court must disregard all errors and
defects that do not affect any party’s substantial rights.
N.D.R.Civ.P. 61. We apply the harmless error test to the admission of
inadmissible hearsay. See Rentz v. BNSF Ry., 2020 ND 254, ¶ 19,
952 N.W.2d 47
(“We agreed the court erroneously admitted the evidence, and proceeded to
examine whether the error was harmless.” (citing Johnson v. Bushkol Constr.,
2015
ND 268, ¶¶ 27-28,
871 N.W.2d 459)).
[¶9] The children provided live testimony to the district court. The court noted
the children’s live testimony was similar to the information in their affidavits.
The children claimed, in live testimony, that Joseph Boyda was threatening,
yelled at them, and mocked them and Sheila Boyda. The court noted that some
of the children’s statements in the affidavits may not be “totally accurate,” but
generally show the relationship between the children and Joseph Boyda. Because
the children’s affidavits provided cumulative evidence to their live testimony
the admission of the children’s affidavits was not prejudicial. State v. Henderson,
2024 ND 42, ¶ 25,
4 N.W.3d 223. The court received sufficient evidence through
the children’s live testimony so that the error in admitting the children’s
affidavits was harmless.
III
[¶10] Joseph Boyda claims insufficient evidence supports the district court’s
finding of a material change of circumstances needed to modify parenting time.
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[¶11] A party moving to modify parenting time must establish that a material
change of circumstances occurred since the previous parenting order and that
modification is in the best interests of the child. N.D.C.C. § 14-05-22; Williams v.
Williams, 2021 ND 134, ¶ 3,
962 N.W.2d 601. A material change in circumstances
requires “important new facts that were unknown at the time of the . . . initial
parenting time order.” Williams, ¶ 3. “[W]e have previously recognized various
factors that may constitute material changes in circumstance, including . . . a
parenting time schedule that causes conflict between the parents and behavior
problems in the child.” Konkel v. Amb,
2020 ND 17, ¶ 7,
937 N.W.2d 540. A court’s
modification of parenting time is reviewed under the clearly erroneous standard.
Fleck v. Fleck,
2023 ND 129, ¶ 13,
993 N.W.2d 534. “A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, there is no evidence
to support it, or if on the entire evidence we are left with a definite and firm
conviction a mistake has been made.”
Id.
[¶12] Here, the district court relied on testimony from the children that Joseph
Boyda often belittled them and Sheila Boyda. The children stated Joseph Boyda
was often angry, would throw items, and that they felt unsafe. The court relied
on evidence of a yard sign, created and placed by Joseph Boyda in Sheila Boyda’s
yard, that read “Parental Alienation Happens Here.” The court noted the
children’s reluctance to communicate with their father and found their
relationship “unhealthy, strained, and broken.” The court found the previous
parenting plan was not in the children’s best interests because of the need to
repair the relationship between them and Joseph Boyda. The court determined
requiring the children to have parenting time with their father would make the
situation worse for the children.
[¶13] An existing plan that causes conflict with a parent and the children can be
a material change of circumstances sufficient to support a modification. Konkel,
2020 ND 17, ¶ 7. The district court found that Sheila Boyda established a material
change of circumstances and modifications to the parenting plan were in the best
interests of the children. The court’s findings were supported by the children’s
testimony and other evidence. The district court did not clearly err by finding a
material change of circumstances existed and the modification was in the best
interests of the children.
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IV
[¶14] Joseph Boyda claims the district court abused its discretion by requiring
that he undergo a mental examination and requiring him to pay the costs for the
examination and supervised parenting sessions.
[¶15] “A trial court has wide discretion in deciding whether to grant or deny
discovery requests, including those for a physical or mental examination under
Rule 35.” Guskjolen v. Guskjolen, 391 N.W.2d 639, 641 (N.D. 1986). An order for
examination is reviewed under an abuse of discretion standard.
Id. Rule 35,
N.D.R.Civ.P., is silent on who must pay for the mental examination. See Lucke v.
Lucke,
300 N.W.2d 231, 235 (N.D. 1980) (“There may very well be cases in which
the circumstances warrant assessing the costs against the moving party. This is
not one that does.”). Similarly, an order directing who pays for supervised
parenting sessions is reviewed under an abuse of discretion standard. Martinson
v. Martinson,
2010 ND 110, ¶ 32,
783 N.W.2d 633.
[¶16] Here, the district court ordered Joseph Boyda to pay for the examination
and supervised parenting sessions. The court’s rationale in requiring the mental
examination and supervised parenting sessions was to strengthen the
relationship between Joseph Boyda and his children. The order stated Joseph
Boyda was willing to undergo an examination in accordance with his children’s
wishes. The order referenced Joseph Boyda’s understanding that some
counseling or therapy may be necessary. Based on findings and reasoning that
have support in the record, the court did not act arbitrarily or unreasonably
when it placed the costs of the examination and parenting sessions on Joseph
Boyda. The district court did not abuse its discretion requiring Joseph Boyda to
pay for the examination or the parenting sessions.
V
[¶17] Joseph Boyda claims the district court improperly delegated its authority
when it conditioned increased parenting time on the completion of therapy and
gave the therapist the unilateral ability to determine if parenting time should be
increased.
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[¶18] Section 14-09-30, N.D.C.C., states: “[i]f the parents are unable to agree on
a parenting plan, the court shall issue a parenting plan considering the best
interests of the child.” The district court cannot “delegate to anyone the power
to decide questions of child custody.” Paulson v. Paulson, 2005 ND 72, ¶ 21,
694
N.W.2d 681. In Paulson, the district court improperly delegated its authority by
ordering:
Paulson shall have supervised visitation with her son through a
licensed social worker approved by Dr. Cavett and all other parties.
Dr. Cavett shall continue to make recommendations for visitations
to the Custodian based upon [the child’s] therapeutic progression.
Id. ¶ 18. In Paulson, the improper delegation conclusion was based on the wide
authority given to the doctor—“carte blanche”—and the lack of findings that the
restrictions were required to protect the child’s physical or emotional health. Id.
¶ 21. In Marquette v. Marquette, 2006 ND 154, ¶ 9,
719 N.W.2d 321, we concluded
that allowing one of the parents to determine the manner and timing of visitation
was an improper delegation.
[¶19] By comparison, we have affirmed an order where third parties were
involved in determining when or how much parenting time was appropriate. In
Wolt v. Wolt,
2010 ND 26, ¶ 39,
778 N.W.2d 786, the district court ordered a parent
to have limited and supervised visitation “until satisfactory progress can be
shown in family and individual therapy with the children.” The order allowed
“counselors [to] make a recommendation to the Court for more and less
restrictive visitation, [and] the Court will consider a new and increased visitation
schedule.” Id. ¶ 40. We held the order was not an improper delegation and did
not place “an additional limitation on [the parent’s] access to the court in seeking
a change in the visitation schedule.” Id.
[¶20] Here, the district court’s order requires the therapist to approve Joseph
Boyda’s progress before graduating between steps, and allows the therapist to
make recommendations to Joseph Boyda but not the court. The order states:
[¶34] Before Joseph can move to the second step, he must do the
following: exercise all the parenting time (minimum of 3 hours per
week) during the entire 120-day period. Exceptions to this rule
6
include events that are beyond Joseph’s control (i.e., child is sick,
supervisor cancels, Joseph is sick, the child’s activity is during
scheduled parenting time). Joseph’s parenting time shall be made
up, when possible, under these circumstances. Sheila shall
reasonably accommodate Joseph’s need to reschedule. In that event,
Joseph’s parenting time at Rainbow Bridge shall be extended one
week beyond the initial 120-day period for every 3 hours of
parenting time he misses. If Joseph is more than 15 minutes late for
his parenting time, it shall be considered missed. Joseph must follow
all therapist or counselor recommendations.
[¶35] Upon successful completion of the recommendations and with the
approval of the children’s therapists, Joseph shall begin Step 2.
[¶36] Step 2. After completion of Step 1, Joseph shall have parenting
time for two hours on one weekday every week, and the exact day
and time shall be agreed upon by the parties, taking into account the
children’s extra-curricular activities and the parties’ work
schedules. If the parties do not agree upon a consistent weekday,
Joseph’s parenting time shall be on Tuesday. He shall also have
parenting time every other Saturday from 9:00 a.m. until 7:00 p.m.,
and Sunday from 9:00 a.m. until 7:00 p.m. Unless required by the
therapist for parenting time to be public or with family, this nonovernight parenting time need not be exercised in a public setting or
with family.
[¶37] Joseph must continue to follow all therapist or counselor
recommendations, which includes the direction for his parenting time
to be in a public setting or with family if the therapist/counselor
believes that such restrictions would be beneficial to reunification.
The therapists will determine when Step 2 is complete. Upon successful
completion of the recommendations and with the approval of the family
therapist, Joseph shall begin Step 3.
(Emphasis added.)
[¶21] Read as a whole, the order delegates to the therapist extensive decision-making authority of the court. Under paragraph 34 of the district court’s findings
Joseph Boyda “must follow all therapist or counselor recommendations.” The
court does not provide any guidance for, or limitations on, the scope of those
7
recommendations. Under paragraph 35 Joseph Boyda cannot begin Step 2
without successfully completing all of the therapist’s recommendations and until
the therapist approves him moving from Step 1 to Step 2. Under paragraph 36
the therapist can unilaterally decide Joseph Boyda’s parenting time under Step 2
be exercised in public or with family. Under paragraph 37 Joseph Boyda must
abide by all therapist and counselor recommendations, and he cannot move to
Step 3 unless and until the therapist determines all of the unspecified
requirements for Step 2 are completed.
[¶22] The order in this case is more like those we rejected in Paulson and
Marquette, and less like the order we affirmed in Wolt. In Wolt, we upheld an
order that allowed the therapist to determine if therapy was successful, and to
recommend to the court if more visitation time should be given. 2010 ND 26, ¶¶
39-40. Disparately here, the district court’s order fully delegates to the therapist
what recommendations can be imposed on Joseph Boyda, and unilaterally
permits the therapist to prevent Joseph Boyda from moving to the next step if
the therapist’s recommendations are not followed.
[¶23] The order delegates to the therapist singular authority to determine
whether Joseph Boyda moves from one step to the next. For each delegation, the
district court did not provide the therapist with criteria for completion of each
step. Rather, the therapist was permitted to determine what criteria applied
during each step, and to then decide whether and when the criteria for each step
was completed. In this regard, the delegation here was like the one we
disapproved in Paulson where the provider was permitted “to set the visitation
schedule, carte blanche.” Paulson,
2005 ND 72, ¶ 21. Therefore, the district court
improperly delegated its authority and we reverse and remand for re-creation of
a court-supervised plan for Joseph Boyda’s stepped parenting time.
VI
[¶24] Joseph Boyda claims the district court abused its discretion by denying his
motion to hold Sheila Boyda in contempt of court for violating the judgment.
Joseph Boyda argues Sheila Boyda violated the judgment by preventing
8
communication, interfering with his continuing relationship with the children,
and violating the parenting plan.
[¶25] “This Court’s review of a district court’s determination on contempt is
very limited. The district court has broad discretion in making contempt
decisions. We will only disturb a district court’s contempt determination if the
court abused its discretion.” Matter of Emelia Hirsch, 2025 ND 79, ¶ 5,
20 N.W.3d
154 (internal citations omitted). The district court “abuses its discretion when it
acts in an arbitrary, unreasonable, or unconscionable manner, or when it
misinterprets or misapplies the law.” Holm,
2025 ND 100, ¶ 7.
[¶26] The district court found that Joseph and Sheila Boyda either agreed to
modifications to the judgment, or Joseph Boyda acquiesced to the modifications.
The court found Sheila Boyda encouraged the children to be involved in Joseph
Boyda’s parenting time but the children refused. These findings are supported
in the record and do not demonstrate the court acted in an arbitrary or
unreasonable manner. The district court therefore did not abuse its discretion by
not holding Sheila Boyda in contempt.
VII
[¶27] Sheila Boyda moved to strike portions of Joseph Boyda’s brief due to his
inclusion of facts outside of the record in violation of N.D.R.App.P. 10. The
record on appeal is made up of “documents and exhibits in the district court,
transcripts, and a certification by the clerk stating what constitutes the record
filed with the district court.” Discover Bank v. Bolinske, 2020 ND 228, ¶ 5,
950
N.W.2d 417 (summarizing N.D.R.App.P. 10). North Dakota Rules of Appellate
Procedure 28 and 30 require that briefs contain references to the record. “It is
well established that this Court may not consider items outside the record.”
Bolinske, ¶ 6; Energy Transfer LP v. N.D. Priv. Investigative & Sec. Bd.,
2022 ND 84,
¶ 29,
973 N.W.2d 404; see also Schmidt v. Schmidt,
2003 ND 55, ¶¶ 19, 23,
660
N.W.2d 196; Hurt v. Freeland,
1997 ND 194, ¶¶ 10-15,
569 N.W.2d 266 (striking
references and imposing costs).
[¶28] Joseph Boyda’s brief includes many statements of facts without citation to
the record. He also refers to facts outside the record, including: costs he incurred
9
because of the district court’s order, the parents’ financial positions, and a child’s
educational status. Sheila Boyda moved to strike 20 specific paragraphs of Joseph
Boyda’s brief, and moved to strike paragraphs 59-73 because he introduces facts
that are not part of the record or the transcript, and five other paragraphs because
he “reference[s] facts that occurred after the September 20, 2024, hearing.”
However, her motion to strike is over inclusive because it includes paragraphs
containing facts with proper citation to the record. Therefore, we deny Sheila
Boyda’s broad-based motion to strike the listed paragraphs, but grant to the
extent facts outside the record have been included. As a result, we limit our
consideration on appeal to the facts contained in the district court record and, as
a sanction, we impose double costs against Joseph Boyda.
VIII
[¶29] The judge presiding over the original proceedings has retired, is a
surrogate judge, and may or may not be assigned to this case on remand. If a
new judge is assigned he or she must “make a Rule 63, N.D.R.Civ.P., certification
prior to conducting further proceedings or, alternatively, order a new trial.” In
re Estate of Bartelson, 2015 ND 147, ¶ 20,
864 N.W.2d 441 (quoting Smestad v.
Harris,
2011 ND 91, ¶ 15,
796 N.W.2d 662). Rule 63, N.D.R.Civ.P., provides:
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 a 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.
IX
[¶30] We conclude the district court abused its discretion in admitting the
children’s affidavits, but this error was harmless due to the children’s live
testimony. We affirm the district court order modifying Joseph Boyda’s
parenting time, requiring an examination under N.D.R.Civ.P. 35, requiring him
to pay the costs for the examination and supervised parenting sessions, and not
10
holding Sheila Boyda in contempt. We reverse that part of the court’s order
delegating to a therapist decision-making over Joseph Boyda’s stepped
parenting time. We grant in part Sheila Boyda’s motion to strike Joseph Boyda’s
appellate briefs and award her double costs. On remand, if this case is assigned
to a new judge, that judge must comply with N.D.R.Civ. P. 63.
[¶31] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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