STEPHEN P. GILMORE V. HONORABLE LISA OSBORNE- BUSHELMAN, (JUDGE, KENTON CIRCUIT COURT), ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED: AUGUST 25, 2011
NOT TO BE PUBLISHED
S5nprrnir &inf. T
STEPHEN P. GILMORE
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2010-CA-000740-OA
KENTON CIRCUIT COURT NO. 03-CI-01348
HON. LISA OSBORNE-BUSHELMAN
(JUDGE, KENTON CIRCUIT COURT), ET AL.
MEMORANDUM OPINION OF THE COURT
Petitioner, Stephen Gilmore, petitioned the Court of Appeals for a writ
prohibiting Judge Bushelman, of Kenton Family Court, from: (1) forbidding
Petitioner's state-funded expert from testifying at the support and maintenance
modification hearing without Petitioner repaying the Commonwealth for the
expert's services and placing the amount owed under the lump sum judgment
for past-due child support into escrow and (2) ordering Petitioner's counsel, an
attorney with the Department of Public Advocacy (DPA), to cease representation
in counsel's official capacity, and if counsel chose to undertake the matter pro
bono, counsel must keep his time separately from his duties as an assistant
public advocate. The Court of Appeals denied the petition and Appellant now
appeals to this Court as a matter of right. Ky. Const. § 115; CR 76.36(7)(a).
In 2005, after several decades of marriage, Petitioner and his wife
divorced and entered into a maintenance and child support agreement. By the
terms of the agreement, Petitioner was to pay a total of $3,500 per month. 1 In
June 2008, Petitioner was indicted for flagrant nonsupport. With DPA
representation, Petitioner successfully obtained an order granting funding for
Dr. Roebker's expert evaluation of his ability to sustain gainful employment.
Dr. Roebker concluded that Petitioner was totally occupationally disabled. The
Commonwealth, perhaps influenced by Roebker's evaluation, negotiated a plea
agreement under which Petitioner was sentenced to five years of non-reporting
After reaching the plea agreement, Petitioner's DPA counsel filed a
motion to modify his child support obligation. In connection with this motion,
Judge Bushelman initially granted an order for funding for Dr. Roebker's
expert testimony at the hearing. 2 Subsequently, Petitioner's ex-wife objected to
Petitioner's use of both a public advocate and public funds for Dr. Roebker's
testimony in a civil support modification case. Judge Bushelman agreed and
ordered that no public monies be expended on this case; that Dr. Roebker shall
not testify unless Petitioner reimburses the Commonwealth for the fees
expended to procure Dr. Roebker's testimony and deposit the amount owed for
At this time, Petitioner was a practicing attorney.
Judge Bushelman's later order vacating the funding order expressed chagrin with
the public advocate's decision not to advise her that the case was against a private
party since the funding motion was styled similar to those utilized by child support
cases prosecuted by the county.
past-due child support into escrow—unless he can pay Roebker himself
"without using money deficient in child support;" and, that Petitioner's counsel
discontinue representation in his official capacity or if he chose to undertake
the matter pro bono, keep his pro bono time separately from his DPA time.
For reasons that follow, we affirm the order of the Court of Appeals.
As we have consistently reiterated, "the writs of prohibition and
mandamus are extraordinary in nature, and the courts of this Commonwealth
`have always been cautious and conservative both in entertaining petitions for
and in granting such relief."' Kentucky Employers Mut. Ins. v. Coleman, 236
S.W.3d 9, 12 (Ky. 2007) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.
1961)). Issuance of a writ effectively prevents full examination of the
underlying merits, thus we are conservatively judicious with its application.
We have further stated that "[t]his careful approach is necessary to prevent
short-circuiting normal appeal procedure and to limit so far as possible
interference with the proper and efficient operation of our circuit and other
courts." Id. (quoting Bender, 343 S.W.2d at 800).
The decision of whether to issue a writ always resides within the sound
discretion of the court; however, to qualify for this extraordinary remedy, a
petitioner must still satisfy the relevant standard:
A writ of prohibition may be granted upon a showing that (1) the
lower court is proceeding or is about to proceed outside of its
jurisdiction and there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We further instructed that
when determining whether to issue a writ preventing the trial court from acting
outside its jurisdiction, the existence of a remedy by appeal is a relevant, but
not controlling, factor. Id. at 9. In certain cases, however, the precise issue is
presented by the writ, thus rendering the right of appeal an inadequate
remedy. In this regard, we have stated that it would be inept and inefficient "to
deny the writ, require a trial on the merits, and then on an appeal be forced to
reverse the case on the very question which is now before us."
Rose, 249 S.W.2d 775, 776-777 (Ky. 1952); see also Maricle, 150 S.W.3d at 11.
Alternatively, "if the petition alleged only that the trial court was acting
erroneously within its jurisdiction, a writ would issue only if it was shown that
there was no adequate remedy by appeal and great injustice and irreparable
harm would otherwise occur." Maricle, 150 S.W.3d at 9. Thus, this portion of
the standard is the more demanding, as it mandates the prerequisite showing
of an inadequate appellate remedy and, usually, demonstration of specific great
and irreparable injury.
We now turn to the present case to determine which portion of the writ
standard is applicable and if Petitioner's allegations merit extraordinary relief.
A. Family Court's Proscription of Dr. Roebker's Testimony.
Due to the disparate burdens attached to each jurisdictional standard,
Petitioner unsurprisingly argues that Judge Bushelman proceeded outside her
jurisdiction when she prohibited Dr. Roebker's testimony pending the escrow of
the past-due support balances. Petitioner claims that this prohibition
trampled his constitutional right to "call witnesses in his favor"—guaranteed by
Chambers v. Mississippi, 410 U.S. 284 (1973)—and violated the evidentiary rule
providing for admission of relevant evidence. KRE 401. We find Petitioner's
Given the extraordinary nature of a writ of prohibition and that its
issuance is entirely discretionary, it follows that a petition must precisely
identify the jurisdictional issue (outside or erroneously within) and why this
type relief is mandated. However, instead of citing pertinent case law
supporting his argument—that a court cannot prohibit a competent witness'
testimony—Petitioner quotes from a single, inapposite case and cites the
evidentiary rule defining relevance. This general citation to an evidentiary
rule—KRE 401—is unhelpful, since the very next rule contains the limitation
that some relevant evidence is inadmissible. KRE 402.
Furthermore, Chambers stands for the right to present a defense in the
context of a criminal trial. In fact, the Chambers Court prefaced the language
Petitioner utilizes—the right to confront, cross-examine, and call witnesses on
one's behalf—with: "[t]he right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend against the State's
accusations. " Chambers, 410 U.S. at 294 (emphasis added). Petitioner's case
involves a civil motion to modify support and maintenance, thus his citation to
Chambers is out of context and, therefore, unpersuasive.
Consequently, Petitioner fails to cite any relevant law supporting his
extraordinary request. As with our briefing standards, it is incumbent upon
the advocate to present legal arguments substantiating his position; this Court
will not bear the burden of searching our common law for cases supporting a
litigant's positions. See generally CR 76.12 (4)(c)(v) (mandating that a brief
shall contain arguments with "citations of authority pertinent to each issue of
law . . . ."). Arguments failing to conform to our rules will not receive
Even if we were to assume—without deciding—that the family court
proceeded outside its jurisdiction, Petitioner cannot satisfy the lesser showing.
Initially, Petitioner has a clear remedy on appeal: the Court of Appeals,
hopefully with the benefit of a properly briefed position, can evaluate the merits
of whether Judge Bushelman may prohibit the expert's testimony. If the Court
of Appeals finds reversible error, it may simply reverse and remand for a new
modification hearing. In addition to this relevant factor, denying the writ is not
inept or inefficient judicial administration, akin to the factual situations in
Chamblee and Maricle.3 Chamblee involved a child custody decision from an
In both cases, the trial court was allegedly proceeding outside its jurisdiction. The
petition in Maricle also alleged that the trial court was proceeding erroneously
within its jurisdiction.
Alabama court, which was later challenged in a Kentucky court by the noncustodial parent in essence seeking reversal.
Chamblee, 249 S.W.2d at 776.
The petitioner filed a writ to prohibit the Whitley Circuit Court from proceeding
because it allegedly lacked jurisdiction. Id. Our predecessor court held that,
although there is a remedy on appeal, it would be inept to deny the writ and
mandate a trial on the merits, when the writ squarely presented the dispositive
jurisdictional issue. Id. at 777.
In Maricle, the defendants petitioned for a writ to prohibit the court from
proceeding outside its jurisdiction after it unilaterally denied their guilty pleas,
believing the plea deal too lenient when compared to the indictment charges. 4
Maricle, 150 S.W.3d at 5. We concluded that the existence of an appeal was an
inadequate remedy, since it would be inept to deny the writ and require a full
trial, when we could simply address the dispositive question—whether the
court has jurisdiction to unilaterally reject the plea agreements—presented by
the writ. Id. at 11.
Here, a denial of the writ would not result in a full trial on the merits,
but rather, as Petitioner's describes it, "a simple child support modification"
hearing in connection with his motion to modify. Moreover, partially due to the
briefing issues discussed above, we cannot conclude that this ground presents
a dispositive issue, which if we ineptly denied, would later force an appellate
The defendants were indicted for murder and mutilating a corpse, but after a
mistrial the Commonwealth moved to amend the indictment to second degree
manslaughter—which defendants intended to plead to—and dismiss the other two
court to reverse on that precise issue. Therefore, we hold that, unlike
Chamblee and Maricle, Petitioner's right to appeal is an adequate remedy.
B. The Family Court's Prohibition of DPA Representation and Command
that Petitioner's Counsel Keep His Time Separately.
Petitioner next, contends that Judge Bushelman lacked jurisdiction to
forbid DPA representation for the modification hearing and command his
counsel to keep his time spent on the modification motion separate from that
for which the Commonwealth pays him a wage. He argues that Judge
Bushelman's ruling regarding his DPA representation is "clearly erroneous."
Petitioner asserts that United States Supreme Court precedent clearly holds
that any time an indigent person faces legal challenge which could result in
incarceration, he is entitled to appointed counsel. Alabama v. Shelton, 535
U.S. 654 (2002). Furthermore, the "spirit" of Shelton is apparently reflected by
KRS 31.110(2)(c), 5 which Petitioner interprets as providing a needy person with
counsel in any post-conviction proceeding counsel considers appropriate.
However, we decline to exercise our discretion and grant the writ based on this
Initially, we note that Petitioner failed to provide citations to any relevant
case law substantiating his claim that Judge Bushelman proceeded outside her
jurisdiction. Instead, he utilizes the "clearly erroneous" standard—more apt for
5 KRS 31.110(2)(c) states: "To be represented in any other post-conviction, or .. .
proceeding that the attorney and the needy person considers appropriate. However, if
the counsel appointed in such post-conviction . . . determines that it is not a
proceeding that a reasonable person with adequate means would be willing to bring at
his or her own expense, there shall be no further right to be represented by counsel
under the provisions of this chapter."
a traditional appeal—in conjunction with an inapposite Supreme Court case
and an inapplicable statute. While it is true that an indigent person has a
constitutional right to representation when facing potential incarnation, here,
there is no potential for Petitioner's incarceration as result of the modification
hearing. 6 Furthermore, KRS 31.110, by its very terms, is limited to needy
persons detained by law enforcement on suspicion of, formally charged with, or
following conviction for committing a serious crime, or who is accused of
committing a public or status offense. KRS 31.110(1). 7 Thus, this statute has
no applicability in the context of a civil support modification motion.
Notwithstanding the inadequacies in the petition, this ground can be
adequately resolved on appea1. 8 At the outset, we fail to see Petitioner's need
for extraordinary relief, since his counsel acknowledged that he would
represent him pro bono (arguably mooting this issue). Moreover, Petitioner's
counsel's argument regarding the impropriety of Judge Bushelman ordering
him to keep his time separate is irrelevant to this action as he is not the party
seeking relief. Therefore, rather than straining to examine the merits based on
partially developed points, the more apt route is a traditional appeal from a
final order. At that point, our intermediate court, presumably with the
assistance of complete briefing, can appropriately address the issue. Our
We held in Lewis v. Lewis that an indigent defendant has a right to counsel for civil
contempt proceedings prior to the execution of an order of incarceration; a concept
Judge Bushelman recognized in the order. 875 S.W.2d 862, 864 (1993).
Although we need not reach the issue, we fail to see how a motion to modify child
support and maintenance qualifies as a post-conviction proceeding under KRS
As such, it is not necessary that we resolve the jurisdictional issue.
decision furthers the policy of sparing the judicial system from being
overwhelmed because, as we stated decades ago,
this avenue of relief were
open to all who considered themselves aggrieved by an interlocutory court
order, we would face an impossible burden of nonappellate matters." Bender,
343 S.W.2d at 800.
C. Miscellaneous Contentions
Finally, Petitioner informs this Court that Judge Bushelman's
implication that his counsel misled the court when styling his motion for expert
funds for the modification hearing is unfounded. He also notifies us that
Judge Bushelman's contention that his counsel desired to represent him pro
bono is erroneous; counsel rather claimed he would represent Petitioner pro
bono if the court forbade him from representing Petitioner in his DPA capacity.
Neither of these informational grounds requests relief and thus we decline to
further address them.
For the foregoing reasons, we affirm the Court of Appeals' order denying
the petition for a writ of prohibition.
All sitting. Minton, C.J.; Cunningham, Noble, Schroder, Scott, and
Venters, JJ., concur. Abramson, J., concurs in result only.
COUNSEL FOR APPELLANT:
Jamie T. Jameson
6444 Lakearbor Dr.
Independence, KY 41051
COUNSEL FOR APPELLEES:
Aaron Samuel Ament
Assistant Attorney General
Office of Attorney General
700 Capital Avenue, Suite 118
Frankfort, KY 40601-3449
COUNSEL FOR APPELLEE, HON. LISA OSBORNE BUSHELMAN:
Lisa Osborne Bushelman
Kenton Co. Family Court Judge
Division V, 5th Floor
230 Madison Ave.
Covington, KY 41011-1539
COUNSEL FOR APPELLEE, STEPHANIE GILMORE:
463 Commonwealth Ave.
Erlanger, KY 41018