IMPOR 'ANT NOTICE THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CI VI_ L PR OCED URE PR OMUL GA TED B Y THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY IN ANY OTHER
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IMPOR 'ANT NOTICE
NOT TO BEPUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVI_L PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO URT OF THIS STA TE.
RENDERED : AUGUST 25, 2005
NOT TO BE PUBLISHED
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APPELLANT
WILLIAM JOSHUA HOWARD
U.
APPEAL FROM ORIGINAL ACTION IN COURT OF APPEALS
2004-CA-446
HARLAN CIRCUIT COURT NO . 02-CI-85
HONORABLE JAMES L. BOWLING, JR .,
SPECIAL JUDGE, HARLAN CIRCUIT
COURT
APPELLEE
AND
PATRICIA KAY HOWARD
(REAL PARTY IN INTEREST)
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This is an appeal from a denial by the Court of Appeals of a petition for a writ of
prohibition . Appellant, William Joshua Howard, and Appellee, Patricia Kay Howard, are
involved in litigation over the custody of two minor children, Dovie Cheyenne Howard,
born August 14, 2000, and William Joshua Howard, Jr., born February 24, 2002 .
Patricia and William were married on January 1, 2000, and divorced by a
judgment and decree of the Harlan Circuit Court on March 6, 2003. The parties initially
agreed to joint custody of their two minor children, with Patricia being the primary and
residential custodian . However, William subsequently filed a motion for emergency
custody when he learned that Patricia had turned custody of William, Jr. over to another
person, Lela Skidmore. Judge Ron Johnson granted the motion on December 23,
2003 .
Patricia then accused Judge Johnson of participating in an ex arte
communication with William's mother, Sheila Howard . Patricia stated that Sheila
Howard and Judge Johnson were friends, that she believed Sheila Howard had
consulted Judge Johnson regarding the process of obtaining emergency custody, and
that Judge Johnson had made derogatory comments about Patricia and Skidmore .
Judge Johnson denied that the alleged conversation took place and denied being
prejudiced in favor of either Sheila or William Howard. Nevertheless, Judge Johnson
recused himself, citing KRS 26A .01 5(2)(e), and Appellee, Hon . James L. Bowling, Jr.,
Judge of the Bell Circuit Court, was appointed to act as Special Judge .
After the appointment of Judge Bowling, Patricia stated in open court that her
family could influence Judge Bowling because of their active involvement in Bell County
politics. Shortly thereafter, William filed a motion for Judge Bowling to recuse himself,
which was summarily denied. In the order, Judge Bowling stated that he did not know
Patricia or her family, although he acknowledged that Patricia had admitted to making
the statements . William then filed this original action in the Court of Appeals seeking a
writ to prohibit Judge Bowling from presiding over the custody dispute . The Court of
Appeals denied the writ, holding that neither of the required prerequisites for issuance of
a writ were met: petitioner had an adequate remedy upon appeal and he would suffer
no irreparable injury. This appeal followed .
There are two classes of cases in which writs of prohibition or mandamus can be
granted : (1) those in which the lower court is acting without or beyond its jurisdiction ;
and (2) those in which the court is acting erroneously within its jurisdiction . Bender v.
Eaton, 343 S.W.2d 799, 800 (Ky. 1961) . The case at bar alleges the second of the two
categories .
To warrant the granting of a writ under the second category, the petitioner must
show, "that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer
great and irreparable injury (if error has been committed and relief denied) ." Id. at 801 .
The first element requires us to determine "whether a favorable decision on appeal
reversing this ruling would provide an adequate remedy for the harm or prejudice arising
out of the alleged erroneous ruling ." Roman Catholic Diocese of Lexington v. Noble, 92
S .W.3d 724, 729 (Ky. 2002). The second element is typically a showing of "great and
irreparable injury ." Bender, 343 S.W.2d at 801 . However, in cases where a judge
refuses to vacate the bench, it has been said that "a refusal to vacate the bench can
never, in and of itself, create any injury or damage . The damage, if any, remains
prospective, in that it must result from [the judge's] further and subsequent conduct of
the proceedings ." Middle States Coal Co., Inc. v. Cornett , 584 S .W .2d 593, 596 (Ky.
App. 1978) . Therefore, a different standard must be articulated . In Middle States Coal ,
the Court of Appeals expressed that "in determining whether the extraordinary remedy
of prohibition is appropriate, it becomes necessary to consider the nature of the
proceedings and the adequacy of the review procedures that are applicable to the
further orders and judgments that may be entered by the judge who has refused to
vacate." Id . In the case sub iudice we note that the analysis with regard to the second
element is similar to the first element.
Appellant argues that because the underlying case involves the custody of two
minor children, an adverse decision could result in Appellant missing several years of
the lives of his children while the case is on appeal . As such, he argues that his remedy
on appeal would be inadequate . We disagree and have held otherwise on numerous
occasions. E Petrey v. Cain , 987 S .W .2d 786, 788-89 (Ky . 1999) ("[T]here is an
.,
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adequate remedy at law by way of appeal from any order entered which grants or
denies a motion to modify a prior custody decree.") ; Pettit v. Raikes, 858 S.W.2d 171,
172 (Ky. 1993) (mother aggrieved by venue determination permitting father to pursue
modification of child custody motion in county of his residence could not obtain writ of
prohibition in intrastate custody dispute, but was required to proceed by appeal from
final judgment) ; Pace v. Wolfinbarger , 420 S.W.2d 561, 563 (Ky. 1967) (mother had
adequate remedy by way of appeal from order transferring custody from her to child's
great aunt, and prohibition would not issue .)
We note in passing that it is not unknown for a party to a bitter legal dispute to
claim to have influence over the presiding judge - if for no other reason than to
intentionally inflict emotional distress upon the other party. Of course, it does not
necessarily follow that the party actually has such influence .
Accordingly, because William Howard has an adequate remedy by appeal, we
affirm the Court of Appeals.
All concur.
COUNSEL FOR APPELLANT :
Otis Doan, Jr.
117 North First Street
Harlan, KY 40831-2315
COUNSEL FOR APPELLEE HONORABLE JAMES L. BOWLING, JR., SPECIAL
JUDGE, HARLAN CIRCUIT COURT:
James L. Bowling, Jr.
P.O . Box 751
Pineville, KY 40977
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