Gunsay v. Gunsay

----ooOoo----

Kristen Gunsay,
Plaintiff and Appellant,

v.

Metin A. Gunsay,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990614-CA

F I L E D
March 23, 2000
  2000 UT App 81 -----

Fourth District, Provo Department
The Honorable Guy R. Burningham

Attorneys:
Daniel F. Bertch, Salt Lake City, for Appellant
Kathleen McConkie, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

PER CURIAM:

Kristen Gunsay appeals from district court child custody orders entered on April 23, 1999 and August 31, 1999. This case is before the court on appellee's motion for summary disposition and a sua sponte motion for partial dismissal.

To the extent appellant appeals from the August 31, 1999 order, the appeal was untimely and is dismissed. There is no record evidence supporting the claim that the district court accepted the faxed notices as timely. This court is bound by the filing date stamped by the trial court on the notices of appeal indicating the notices were untimely filed on October 1, 1999.

Appellant initiated a timely appeal from the April 23, 1999 Order of Wrongful Removal, and the issues raised in that appeal are not insubstantial. However, appellee raises an alternative ground for dismissal in his response to the sua sponte motion. He seeks dismissal based upon appellant's continued contempt of orders of the trial court.(1)

We conclude that our holding in D'Aston v. D'Aston, 790 P.2d 590, 591 (Utah Ct. App. 1990) applies. The order on appeal found removal of the parties' child from Utah to be wrongful and illegal under the Hague Convention. Appellant has refused to allow visitation by appellee for over two years. Although she has consistently contended that she is unable to comply with the Utah orders as a result of orders she obtained in Canada, this court previously rejected that argument, concluding appellant had alternative remedies available "to resolve her self-inflicted dilemma." Gunsay v. Honorable Donald J. Eyre, Case No. 981603-CA, slip op. (Utah Ct. App. November 5, 1998).

Appellant has concealed herself and the child in Canada and allowed a trial on the petition to modify custody to proceed in Utah without her participation. She now seeks to continue an appeal from the orders entered in the Utah court without ever submitting herself to the court's jurisdiction. The approach adopted by this court in D'Aston does not deny an appellant the right to an appeal, but requires a party in contempt to "satisfy the court's concerns before she may exercise that right." 790 P.2d at 591.

Pursuant to D'Aston, the appeal from the August 23, 1999 order is stayed for a period of thirty days from the date of this decision to allow appellant "to submit to the process of the trial court and to give this court notice of her actions." Id. "If appellant complies with this court's order and gives this court written verification of her compliance within the 30-day period, then we will consider her appeal on the merits." Id. "[I]f appellant fails to submit to the process of the trial court within the 30-day period, the motion to dismiss her appeal will be granted" without further notice or argument. Id. The appeal is partially dismissed, insofar as it is taken from the August 31, 1999 order.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. Appellant has not responded to this claim, although she filed her responsive memorandum after the appellee's memorandum and was on notice of the claim.