DEWITZ v. DEWITZ (2026)

[¶1] Glenn Safford Dewitz appeals from a district court judgment entered after a bench trial in his divorce proceedings against Sheree Lee Dewitz. On appeal, Glenn Dewitz argues the district court abused its discretion by imposing N.D.R.Civ.P. 37 discovery sanctions excluding his valuation evidence. He argues the resulting property valuation and distribution are clearly erroneous. Sheree Dewitz argues Glenn Dewitz failed to preserve the issue of the exclusion of evidence because he failed to make an offer of proof.

[¶2] “[When] the chosen sanction is the exclusion of evidence, there must also be a demonstration of prejudice from the court's refusal to allow the evidence.” Wagner v. Peterson, 430 N.W.2d 331, 332 (N.D. 1988). The burden is on the individual seeking to include the evidence to show the resulting prejudice to him “by making known to the trial court the substance of the evidence.” Id. “Before an aggrieved party can challenge the propriety of a discovery sanction which excludes evidence, the party must have made an offer of proof, demonstrating prejudice from the court's refusal to allow the evidence.” Van Beek v. Van Beek, 2025 ND 96, ¶ 21, 21 N.W.3d 79 (citing Wagner, 430 N.W.2d at 332; N.D.R.Ev. 103(a)(2)). “Absent an offer of proof, we have no means to determine whether the exclusion of the [evidence] resulted in prejudice.” Van Beek, ¶ 21 (concluding Van Beek failed to preserve the issue).

[¶3] The district court issued an order compelling discovery responses and a subsequent contempt order for Glenn Dewitz's failure to comply with the order compelling discovery responses. The court found Glenn Dewitz's “misconduct continued through trial, significantly prejudicing Sheree's ability to prepare her case.” The court's findings are supported by the record, which shows pervasive, ongoing, and substantially prejudicial conduct by Glenn Dewitz. Following the court's ruling, Glenn Dewitz failed to make an offer of proof regarding his valuation evidence. Absent an offer of proof, we have no means to determine whether the exclusion of the evidence resulted in prejudice. We conclude Glenn Dewitz failed to preserve the issue for appeal.

[¶4] After review of the record, we conclude the district court's property valuation and distribution are supported by the record and are not clearly erroneous. We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7). See Van Beek, 2025 ND 96, ¶ 21, 21 N.W.3d 79 (concluding failure to make an offer of proof precludes meaningful review of the issue on appeal).

Per Curiam.

[¶5] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese