KENI LYNN CROSSFIELD (NOW WENDT) V. C. HUNTER DAUGHERTY, JUDGE GARRARD CIRCUIT COURT, ET AL

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IMPORTANTNOTICE NOT TO BE PUBLISHED0PINION THIS OPINIONIS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCED URE PR OHUL GATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY INANY OTHER CASE INANY CO URT OF THIS STA TE. RENDERED : DECEMBER 22, 2005 NOT TO BE PUBLISHED ,$ttprEms Courf of ~mfilk4~-] 2005-SC-0404-MR KENT LYNN CROSSFIELD (NOW WENDT) APPELLANT REVIEW FROM COURT OF APPEALS 2005-CA-000576 GARRARD CIRCUIT NO . 02-CI-00090 V. C. HUNTER DAUGHERTY, JUDGE, GARRARD CIRCUIT COURT APPELLEE AND JOHN CROSSFIELD REAL PARTY IN INTEREST MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Keni Lynn Crossfield (now Wendt), (mother), appeals from a Court of Appeals decision granting Appellee, John Crossfield, (father), relief in the nature of a Writ of Mandamus/Prohibition . The procedural history of this matter is as follows : On June 20, 2003, the Garrard Circuit Court modified a custody arrangement between the parties by ordering the residence of their children to be with Appellant (mother) . On appeal, the Court of Appeals reversed, and entered an order directing the Circuit .Court to return the children to Appellee (father). Appellant (mother) filed a new motion with the Garrard Circuit Court, requesting a hearing to modify the existing custody arrangements, and/or set aside the existing decree pursuant to CR 60 .02(d) or CR 60.02(f). On March 15, 2005, Appellee (father) filed a Petition for Writ of Mandamus/Prohibition as an original action in the Court of Appeals . On March 18th, the Garrard Circuit Court entered an Order granting temporary custody to Appellant (mother) . The Court of Appeals granted Appellee's (father) petition on May 4th, ordering the Circuit Court to vacate its order granting temporary custody to Appellant (mother), and to restore actual custody to Appellee (father). Appellant (mother) appealed to this Court. The Appellant (mother) claims that the writ was improper because Appellee's (father) petition was filed prior to the Circuit Court's final order. We disagree because the writ petition did not originate as an appeal from the Circuit Court order. Rather, Appellee (father) petitioned for the writ as an original action in the Court of Appeals, requesting that it compel the trial court to obey a previous Court of Appeals order. As such, it does not matter whether or not the Circuit Court order was final at the time the petition was filed . Appellant (mother) also argues that a writ of mandamus is an inappropriate remedy as a matter of law if the Circuit Court has subject matter jurisdiction to modify a custody arrangement and the proper affidavits are filed . Appellant (mother) is incorrect in this assertion, and her reliance upon Petry v. Cain , 987 S .W .2d 786 (Ky. 1999), is misplaced . This Court reviews decisions to grant writs of prohibition/mandamus under an abuse of discretion standard . Haight v. Williamson, 833 S.W .2d 821, 823 (1992) . Finding no abuse of discretion, we affirm the Court of Appeals . All concur. COUNSEL FOR APPELLANT Mark T. Miller Smith & Miller 100 South Main Street Nicholasville KY 40356 COUNSEL FOR APPELLEE C . Hunter Daugherty 101 N . Main St. Nicholasville, KY 40356 COUNSEL FOR REAL PARTY IN INTEREST John Edward Reynolds 203 W. Maple St. Nicholasville KY 40356

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