IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
ACTION.
RENDERED: DECEMBER 15, 2016
NOT TO BE PUBLISHED
~upmut J'l,l)C.
KERRY A. NIELSEN EHR APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2015-CA-001729-MR
JEFFERSON CIRCUIT COURT NO. 15-CI-502298
HONORABLE DEE MCDONALD, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT, FAMILY
DIVISION EIGHT
AND
ANDREW D. EHR REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Kerry A. Neilsen Ehr, sought a writ of prohibition in the Court
of Appeals to restrain the Jefferson Circuit Court from proceeding in a marriage
dissolution action. The Court of Appeals denied the writ. For reasons stated
below, we affirm.
Appellant and Andrew Ehr were married in 1987 in Wisconsin. The two
resided together in Wisconsin until 2009. Andrew, having taken a job there,
moved to Louisville, Kentucky. For three years, he traveled to his Wisconsin
residence on weekends. After that, trips to Wisconsin became less frequent.
Appellant remained a Wisconsin resident.
Approximately six years after moving to Louisville, Andrew filed for
divorce in Kentucky. Appellant moved to dismiss the petition, alleging the trial
court lacked personal jurisdiction over her and inconvenient forum. The trial
court issued a final and appealable order ruling that it had both personal and
subject matter jurisdiction, and that Kentucky was the more convenient forum
since Appellant was not employed and enjoyed freedom to travel.
Appellant petitioned the Court of Appeals for a writ of prohibition to
enjoin the trial court's adjudication of spousal maintenance and property
division, claims beyond the dissolution of the marriage. The Court of Appeals
denied the petition. This appeal followed pursuant to CR 76.36(7).
A writ of prohibition is an extraordinary remedy, cautiously granted.
Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). The circumstances under
which it may be issued are 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 ... ;" 2) "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;" (a second class
writ); and 3) despite the petitioner not standing to suffer irreparable injury,
"the administration of justice generally will suffer the great and irreparable
injury" (a special case writ). PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 546
(Ky. 2013) (quoting 3M Co. v. Engle, 328 S.W.3d 184, 187 (Ky. 2010)).
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The Court of Appeals' findings of fact relating to the conditions precedent
for issuance of a writ are reviewed for clear error, Grange Mutual Insurance
Company v. Trude, 151 S.W.3d 803, 810 (Ky. 2004); we determine from the
record if its finding are supported by substantial evidence, Miller v. Eldridge,
146 S.W.3d 909, 917 (Ky. 2004). If the circumstances are met for issuance of
the writ, the decision to deny the petition is reviewed for an abuse of discretion.
Id.
The Court of Appeals denied the writ because Appellant failed to
establish that she would suffer irreparable injury and that she had no
adequate remedy by appeal or otherwise. The Court of Appeals noted that the
trial court had subject matter jurisdiction, the type of jurisdiction referred to in
a writ proceeding, Goldstein v. Feeley, 299 S.W.3d 549 (Ky. 2009); that having
to expend time and money on litigation is not irreparable injury; and that the
trial court's relevant orders were issued as final and appealable. Appellant
asserts the Court of Appeals erred as a matter of law by concluding that the
trial court had subject matter jurisdiction, it being dependent upon the trial
court having personal jurisdiction which the trial court did not have (she
concedes the trial court has personal jurisdiction for the purpose of dissolving
the marriage), and by not analyzing whether her case met the conditions for a
special case writ.
Appellant's argument that the trial court lacked subject matter
jurisdiction because it did not have personal jurisdiction was addressed in
Goldstein. In Goldstein, we stated, "A lower court lacking personal jurisdiction
over a party is not acting or about to act 'outside of its [subject matter]
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jurisdiction,' as that phrase has been used in the context of writ cases. It is
acting 'erroneously although within its [subject matter] jurisdiction. m 299
S.W.3d at 552 (citation omitted). "Thus, [Goldstein's] effort to obtain a writ
because of the claim that the trial court lacked personal jurisdiction over him
did not place him in the 'no jurisdiction' class of writs. [He] could therefore
only receive a writ by showing that the trial court was 'erroneously acting, but
within its jurisdiction. m Id. at 553. The Court of Appeals did not err as a
matter of law when it determined that the trial court had subject matter
jurisdiction over Appellant's divorce case, and then analyzed the issue as a
request for a second class writ, determining whether Appellant had an
adequate remedy by appeal or would suffer great injustice and irreparable
injury if the petition were not granted. Appellant contends that she has shown
"irreparable injury" in the context of a family law case and should qualify for
relief under the special case writ analysis.
Appellant argues that she satisfies the criteria for a special case writ, an
argument not addressed by the Court of Appeals. She posits that a dissolution
of marriage action under KRS 403 et seq., is a special statutory proceeding,
expressly subject to the mandate of KRS 403.110(3) that we must "promote
[Chapter 403's] underlying purposes, which are to: ... (3) mitigate the
potential harm to the spouses ... caused by the process of [divorce]." In
recognition of that policy, domestic relations cases are often prioritized or
expedited. Appellant argues that this special statutory policy should compel us
to recognize the harm of a divorce case (the suffering associated with a
traditional litigation time frame including, for example, loss of control over
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assets or income, and struggles associated with being financially
disadvantaged) as rising to the level of irreparable injury.
While we do not discount the suffering ordinarily associated with the
dissolution of a marriage, we do not agree that such suffering rises to the
status of irreparable injury required for the issuance of a second class writ; nor
do we conclude that without the issuance of the writ as a special case writ, the
administration of justice generally will suffer the great and irreparable
lnJUry.
The essential circumstances necessary for issuance of the writ are not
present. The trial court has subject matter jurisdiction, an appellate remedy is
available, and great injustice and irreparable injury will not be suffered by
either Appellant or the administration of justice. Consequently, we affirm the
Court of Appeals' denial of Appellant's writ petition.
All sitting. All concur.
COUNSEL FOR APPELLANT:
William David Tingley
William D. Tingley, PLLC
COUNSEL FOR APPELLEE, HONORABLE DEE MCDONALD:
Deana H. McDonald
COUNSEL FOR APPELLEE, ANDREW D. EHR, REAL PARTY IN INTEREST:
Jonathan S. Ricketts
Christopher Bush
Ricketts Law Offices, PLLC
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