Kartman v. Cook

201 N.W.2d 705 (1972) 189 Neb. 159

Francis Diane KARTMAN f/k/a Francis Diane Cook, Appellant,
v.
Gerald Francis COOK, Appellee.

No. 38628.

Supreme Court of Nebraska.

October 20, 1972.

Haney, Wintroub & Haney, Omaha, for appellant.

Samuel V. Cooper, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

NEWTON, Justice.

Pursuant to proceedings had in the district court for Sarpy County, Nebraska, an order was entered awarding the custody of the minor children of appellant and appellee to appellee and directing appellant to surrender the children to appellee. The children were not surrendered, but on the contrary, appellant has removed and concealed the children while seeking to appeal the custody decision. Appellee moves to dismiss the appeal.

The principle is well established that an appellate court may dismiss an appeal for contumacious violation of an order of the court. One who flouts the order of the court is not in a position to seek judicial assistance. See, Pike v. Pike, 24 Wash.2d 735, 167 P.2d 401, 163 A.L.R. 1314; Henderson v. Henderson, 329 Mass. 257, 107 N.E.2d 773; Burns v. Burns, 35 Ill.App.2d 34, 181 N.E.2d 605; Commonwealth ex rel. Beemer v. Beemer, 200 Pa. Super. 103, 188 A.2d 475; Rude v. Rude, 153 Cal. App. 2d 243, 314 P.2d 226; Strange v. Strange (Tex.Civ.App.), 464 S.W.2d 216; Strange v. Strange (Tex.), 464 S.W.2d 364.

On failure of the appellant to comply with the order of the trial court and make a proper showing of such compliance in this court within 30 days, this appeal shall stand dismissed.

Motion to dismiss conditionally sustained.