             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANTTOJHE 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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
ACTION.
                                                      RENDERED: APRIL 27, 2017


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                               20 l 6-SC-000526-MR
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JOHN DAVID LEE                                                           APPELLANT


              ON APPEAL FROM KENTUCKY COURT OF APPEALS
v.                    CASE NO. 2016-CA-000625-0A
              JEFFERSON CIRCUIT COURT NO. 15-Da502354-003


HON. PAULA F. SHERLOCK, JUDGE,                                             APPELLEE
JEFFERSON FAMILY COURT,

AND

ANGELA JEAN KING AND                                  REAL PARTIES IN INTEREST
COMMONWEALTH OF KENTUCKY




                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      This is an appeal of the Court of Appeals' denial of John David Lee's

petition for a writ of mandamus and/ or writ of prohibition.1 In his writ

petition, Lee asked that the Domestic Violence Order ("DVO") entered against

him by the family court judge be set aside, and that the judge be required to




      1 Depending on how Appellant's requests for relief are framed, either one may
be appropriate. Both are "extraordinary writs" that are treated the same for the
purposes of determining whether a writ is available.in a particular case. Mahoney v.
McDonald-Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010).
recuse herself from all further proceedings.2 The Court of Appeals is affirmed.

                     I. FACTUAL AND PROCEDURAL HISTORY.

      The original action in this case arose from domestic violence proceedings

between Lee and Angela Jean King. In September 2015, King filed an

Emergency Protection Order ("EPO"), which was denied due to a lack of

relationship. King then filed a second EPO on October 1, 2015, which was

issued that same day, and a domestic violence hearing was held October 13,

2015. In that hearing, Lee asked that the presiding judge, Judge Sherlock,

recuse herself. Judge Sherlock entered the following order of recusal following

the hearing:

                     The Court hereby grants Respondent's motion
               and recuses from this case. The presiding judge has
               prior knowledge of Respondent's divorce case, and
               recused from that case. Further, respondent is a
               subject of controversy in his role as a baseball coach
               in a custody and visitation case between other parties
               pending in this division.

                     Therefore, the undersigned judge recuses herself
               and directs the court administration office to reassign
               this matter.

      Two weeks later, and before the court administrator could reassign the

case, King moved to dismiss the case against Lee. The parties verbally agreed



       2 We note Judge Sherlock did not file a brief with this court. Under these
circumstances, the provisions of Kentucky Rules of Civil Procedure (CR) 76 .12(8)(c)
permit that we may "(i) accept the appellant's statement of the facts and issues as
correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain
such action; or (iii) regard the appellee's failure as a confession of error and reverse
the judgment without considering the merits of the case." Because Lee has not made
the requisite showing to grant such a writ, as discussed below, we affirm the Court of·
Appeals.

                                           2
to set aside Judge Sherlock's recusal so that she could dismiss the EPO.

         In January 2016, King filed a third petition for a DVO against Lee, and

the trial court entered an EPO on January 11, 2016. Following a hearing with

Judge Sherlock presiding, the trial court entered a DVO on January 19, 2016.

That order is not included in the present record.3

      Lee then filed various motions to set aside the DVO on the basis that the

trial judge had previously recused herself from presiding over the prior

domestic violence petition that King filed a~ainst Lee. Lee also filed   adirect
appeal of the DVO as well as this petition for a writ of mandamus and/ or

prohibition. The Court of Appeals denied his petition for a writ, and this

appeal follows as a matter of right.

                                     II. ANALYSIS.
                                                     '
      As this Court outlined in Hoskins v. Ma!1cle, 150 S.W.3d 1, 10 (Ky.

2004),

              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 antj 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 t)lere exists no adequate remedy by appeal or
              otherwise and great injustice and irreparable injury
              will result if the petition is not granted.

"At the outset, we must determine whether the Court of Appeals was required



       3 Because this is a writ action, the record is not complete. Cox v. Braden, 266
S.W.3d 792, 795 (Ky. 2008) ("The expedited nature of writ proceedings necessitates an
abbreviated record."). The background described in this opinion is based on what can
be gleaned from the briefs and the limited record.

                                          3
to entertain the petition for writ of mandamus. Unless petitioners were able to

demonstrate their entitlement to extraordinary relief,' there was no need for the

Court of Appeals to reach the merits of the claim." Nat'l Gypsum Co. v; Corns,

736 S.W.2d 325, 326 (Ky. 1987).

      In this writ petition, Lee-requests that the DVO be set aside, and that

Judge Sherlock be barred from presiding over any future cases involving him.

In order for an extraordinary writ to be granted, the petitioner must

demonstrate that the lower court is proceeding _outside its jurisdiction, which,

in the case of writ proceedings, refers to subject matter jurisdiction, or that the

court is proceeding within its jurisdiction but erroneously. Goldstein v. Feeley,

299 S.W.3d 549, 553 (Ky. 2009).

                  Once a judge is properly disqualified and
            recused, reentry into the case would be proper only
            upon a showing of affirmative evidence that the
            conflict no longer. exists . . . and that no special judge
            has been appointed. On motion of the parties, the
            judge could ministerially acknowledge those facts and
            only then resume jurisdiction

Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 55 (Ky. 2007).

Lee is incorrect that the trial court did not have jurisdiction; rather, if any

issue of jurisdiction exists, it would apply solely to Judge Sherlock.

      However, as discussed by the Court of Appeals, we need ·not examine the

merits of this jurisdictional argument since the trial court is not proceeding or

about to proceed outside of its jurisdiction; it has already acted to enter a final

and appealable DVO that Lee may directly appeal. In fact, Lee has filed a direct

appeal from the January 19, 2016, DVO, which is currently pending before the

                                         4
Court of Appeals,4 thus demonstrating not only does an adequate remedy

through an intermediate court exist, but that Lee already exercised that

remedy. As this Court has stated, "[i]t is beyond disput~ that mandamus may

not be used as a substitute.for appeal." Nat'l Gypsum Co., 736 S.W.2d at 326.

Since Lee has recourse for direct appeal, we agree with the Court of Appeals

that Lee has failed to demonstrate grounds for the issuance of a writ.

      Next, Lee argues that Judge Sherlock should be required to recuse.

herself from presiding over any future proceedings in which he is involved. As

discussed by the Court of Appeals, should Lee find himself before Judge

Sherlock again, the remedies provided by the disqualification statutes, KRSS

26A.Oi5 and 26A.020, remain available to him as does future direct appeal.

                                 III.   CONCLUSION.

      For the foregoing reasons, we affirm the order of the Court of Appeals. In

summary, we do not believe the Court of Appeals erred in deciding that Lee

failed to show sufficient grounds for a writ of mandamus.

      All sitting. All concur.




      4 We take note of the Court of Appeals' decision vacating the DVO and
remanding, Lee v. King, No. 2016-CA-000167-ME, 2017 WL 1102981 (Ky. App. Mar.
24, 2017) (unpublished).
      s Kentucky Revised Statutes.

                                         5
COUNSEL FOR APPELLANT:

John David Lee, prose


COUNSEL FOR APPELLEE:

Hon. Paula Sherlock



COUNSEL FOR REAL PARTY IN INTEREST:

Andy Beshear
Attorney General of Kentucky

Steven Romines
Romines, Weis, & Young




                               •




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