Divorce Law Journal

Published Family Law Opinion from Ky Court of Appeals: DVO, Parenting Time, Writs,and Transfer of DVO to Court Where Custody Action Pending

PATTERSON V. WINCHESTER

A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.

Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.

The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when "(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 granted." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The Court of Appeals declined to grant Mother's request for writs preventing the Whitley Court from enforcing its parenting time order and  vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother's argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.

The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.

The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that "the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending."

Digested by Elizabeth M. Howell

 

Ky. S. Ct Published Opinion - writ of prohibition denied to prevent enforcement of order unsealing divorce records

DANIEL E. BAILEY, JR. (M.D.) V. HON. ALLAN RAY BERTRAM, JUDGE, MARION CIRCUIT COURT, DIVISION II, ET AL.

Parties filing a medical negligence claim against a physician moved to intervene in the doctor’s divorce case solely to unseal portions of the sealed divorce records. The intervening parties claimed the divorce may have impacted the doctor’s treatment of the patients in the malpractice action. The Trial Court granted the motion to intervene and ordered the divorce records to be unsealed. The doctor filed a writ of prohibition against the enforcement of the Trial Court’s Order. The Court of Appeals concluded the writ of prohibition was appropriate in that there was no adequate remedy by appeal, but denied the writ because the trial court did not act erroneously by unsealing the divorce records, as judicial records are presumptively available to the public.

The Supreme Court first addresses the permissive intervention of the doctor’s patients holding they had no right to intervene in the doctor’s divorce action. The intervening parties had no interest, claim, or defense in common with the divorce action. They were simply attempting to intervene to obtain discovery to benefit their malpractice case. While the press may have a right to intervene in a sealed civil case under the First Amendment, the media has special standing because of freedom of the press. In this case, the intervening parties have the right to engage in discovery under the Civil Rules, but no right to intervene in an unrelated case as a method of discovery.

The Supreme Court turns to address whether the writ of prohibition was an appropriate remedy to provide the doctor relief from the Trial Court’s order. The Supreme Court holds there is an adequate remedy by appeal, so a writ of prohibition is not available as a remedy. The Trial Court order was a final and appeal order not to take effect for 21 days after its entry. Further, the order provided it would be stayed if appealed and CR 76.33 allows a party to request a stay of a Trial Court order.

Thus, the Supreme Court affirms the Appellate Court’s denial of the writ of prohibition, but because there was an adequate remedy available by appeal.

Digested by Elizabeth M. Howell