Allred v. Gulbraa

Allred v. Gulbraa

IN THE UTAH COURT OF APPEALS

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Etsuko Tanazaki Allred,

Petitioner and Appellant,

v.

Michael Charles Gulbraa,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040035-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 141

 

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Third District, Salt Lake Department

The Honorable Michael K. Burton

The Honorable Joseph C. Fratto Jr.

Attorneys: Etsuko T. Allred, Kasugai-shi, Aichi-ken, Japan, Appellant Pro Se

F. Kevin Bond and Budge W. Call, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

Etsuko Tanazaki Allred appeals from the order granting a petition to modify child custody. This case is before the court on cross motions for summary disposition.

The district court ordered a modification of the divorce decree to grant sole legal and physical custody of the parties' two children to Appellee Michael Gulbraa. The court specifically found Allred in contempt, stating:

The Court finds that pursuant to Utah Code Ann. § 78-3-3(5) Petitioner has committed contempt by her continued disobedience to the lawful orders of this Court to 1) not leave the State of Utah as outlined in the earlier TRO, 2) to attend and be present at trial, 3) to have the children present and at the trial, 4) [to] return to the USA and attend a review hearing in this matter on March 27, 2002, and 5) [to] return the children to the custody of Respondent as ordered by this Court on March 27, 2002.

Allred has failed to comply with the same custody order she seeks to appeal and also failed to comply with visitation contained in a parenting plan entered by stipulation. She has concealed herself and the children in Japan and has failed to return for court appearances or to return the children to the custody of their biological father as ordered by the court.

We conclude that our holding in D'Aston v. D'Aston, 790 P.2d 590, 591 (Utah Ct. App. 1990), applies under the facts of this case. The approach adopted by this court in D'Aston does not deny an appellant a right to appeal, but requires a party in contempt to "satisfy the court's concerns before she may exercise that right." Id.

This appeal is stayed for a period of thirty days from the date of this decision to allow Allred "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." Id.

We deny Allred's motion for summary reversal. We defer a ruling on Gulbraa's motion for summary disposition for thirty days to allow Allred to submit to the process of the district court by complying with the order granting custody to him. Failure to comply within the thirty-day period will result in dismissal of the appeal without further notice or argument.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge