Gunsay v. The Honorable Donald J. Eyre

MEMORANDUM DECISION
(Not For Official Publication)

Kristen Gunsay,
Petitioner,

v.

The Honorable Donald J. Eyre, Fourth Judicial District Court,
Respondent.

Case No. 981603-CA

F I L E D
(November 5, 1998)
-----

Fourth District, Provo Department

The Honorable Donald J. Eyre, Jr.

Attorneys:
Rosemond G. Blakelock, Provo, for Petitioner
Kathleen McConkie and David C. Blum, Salt Lake City, for Respondent

-----

Before Judges Wilkins, Jackson, and Orme.

PER CURIAM:

This matter is before the court on a petition for extraordinary writ filed pursuant to Utah R. App. P. 19. The petition is denied.

Granting an extraordinary writ is proper where there is no plain, speedy and adequate remedy at law to prevent a miscarriage of justice. Petitioner has failed to demonstrate why no plain, speedy or adequate remedy at law is available to resolve her self-inflicted dilemma. To the contrary, there are several alternative available remedies. Petitioner could have appealed from the district court's order, raising her conflict and due process issues. She could petition the British Columbia court to modify its order, especially given that the order was entered ex parte upon her request. She could try filing the British Columbia court's order with the district court and petition the district court to enforce the British Columbia court's order. See Utah Code Ann. 78-45c-15 (1996). She could petition to modify the district court's decree. She could move for a contempt hearing in the district court and preemptively defend against any abridgement of her parental rights based on her inability to comply with the district court's order. See Coleman v. Coleman, 664 P.2d 1155 (Utah 1983) (to prove contempt for failure to comply with court order, must show person cited had ability to comply). Finally, she could petition the district court for a declaration of inconvenient forum pursuant to Utah Code Ann. 78-45c-7. Petitioner's failure to pursue the above-enumerated remedies precludes her from obtaining an extraordinary writ in this matter.

The Uniform Child Custody Jurisdiction Act provides solutions for jurisdictional conflicts like the one at hand that often arise among states in child custody disputes. It provides key requirements for a court to exercise jurisdiction, as well as guidelines that help a court determine when to defer to another court's jurisdiction. Unfortunately, it does not apply in Canada. If it did, Canada would never have exercised jurisdiction in this case, because it is clear that, under the Act as well as under the federal Parental Kidnaping Prevention Act, the Fourth District Court has exclusive and continuing jurisdiction in this case, as the respondent still lives here and the district court has not relinquished jurisdiction. See Utah Code Ann. 30-3-5(3) (Supp. 1998); Liska v. Liska, 902 P.2d 644, 647 (Utah Ct. App. 1995); Crump v. Crump, 821 P.2d 1172, 1174-75 (Utah Ct. App. 1991). We have been given no good reason to issue an order that interferes with the district court's exclusive jurisdiction in this matter.

Moreover, even if the courts of this state were otherwise inclined to recognize and enforce the British Columbia court's order under Utah Code Ann. 78-45c-13 and 78-45c-23, the British Columbia court's order is most likely not entitled to enforcement because it was entered ex parte, without reasonable notice and opportunity to be heard. See Holm v. Smilowitz, 840 P.2d 157, 164 (Utah Ct. App. 1992) (foreign judgment not entitled to full faith and credit if rendered without jurisdiction over defendant or under circumstances which amount to lack of due process).

For the foregoing reasons, the petition is denied.
 

______________________________
Michael J. Wilkins, Associate Presiding Judge
 

______________________________
Norman H. Jackson, Judge
 

______________________________
Gregory K. Orme, Judge