concurring. I agree with the majority’s decision that we should deny the petition for a writ of prohibition in the present case. I disagree with the majority’s broad statements that “[a] writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order,” and that “where the petitioner alleges that the underlying order is void, a writ of prohibition is the appropriate vehicle to challenge a subsequent order for the petitioner to show cause why he or she should not be held in contempt.” The majority is expanding the use of a writ of prohibition. In the present case, Patricia’s proper remedy was an appeal of the juvenile court’s January 10, 2001, order granting guardianship to the paternal grandparents, not a petition for a writ of prohibition to prevent the juvenile court from proceeding with an order to show cause hearing.
I must note that Patricia has named the individual judge as respondent to her petition. This is incorrect. Prohibition lies to the circuit court and not to the individual judge. Pike v. Benton County Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). The petition may be treated as one against the circuit court. Id.
A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). A writ of prohibition is appropriate only when there is no other remedy, such as an appeal, available. Pike, supra. The remedy of appeal was available to Patricia; however, she chose not to avail herself of that remedy. Instead, Patricia failed to comply with the juvenile court’s order and, as a result, the paternal grandparents filed a petition for contempt on October 26, 2001. On November 8, 2001, the juvenile court entered an order to show cause for Patricia. Thereafter, Patricia filed a petition for a writ of prohibition with this court.
The juvenile court entered an ex parte temporary guardianship order on September 29, 2000. As a result of hearings in October and December 2000, at which Patricia was represented by counsel, and where the juvenile court heard evidence presented by the paternal grandparents and Patricia concerning the guardianship and Patricia’s motions to dismiss, the juvenile court entered an order on January 10, 2001, granting guardianship to the paternal grandparents, denying Patricia’s motions to dismiss for lack of subject-matter jurisdiction and personal jurisdiction, and finding that the juvenile court had subject-mater jurisdiction and personal jurisdiction. Patricia never filed a notice of appeal. However, in her petition for a writ of prohibition, which was not filed until May 13, 2002, Patricia raises arguments that she could have included in an appeal within thirty days of the January 10, 2001, order. The majority’s statement that “[a] writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order,” has the effect of extending the time for an appeal and expanding the use of a writ of prohibition. Based on the majority’s assertion, a petitioner does not lose the right to an appeal if he or she alleges that there is a void order at the inferior court.
The majority’s reliance on Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W.2d 157 (1958), is misplaced. The majority quotes Duncan, supra, where the court stated:
When it appears to the court having jurisdiction to issue the writ of prohibition, that the lower court, under any conditions, is without jurisdiction to try the accused upon the alleged information filed, to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, would work an unnecessary and unreasonable hardship upon the accused.
Duncan v. Kirby, Judge, 228 Ark. at 921, 311 S.W.2d at 160 (quoting Evans v. Willis, 97 P. 1047 (Okla. 1908)). Duncan is not on point. In Duncan, the petitioner was found guilty of refusing to obey the lawful orders of an officer of the United States Army, even though the alleged offense was not a punishable crime under State law. Duncan, supra. The Duncan court found that the inferior court was without jurisdiction to try the petitioner for a crime which, under the laws of the State, did not exist.
The situation is different in the present case. Unlike Duncan, this case involves the enforcement of a juvenile court order, not the trial of an individual for a crime that did not exist under State law. Clearly, in Duncan, the trial court was whoEy without jurisdiction. In the present case, after the January 10, 2001, order was entered, Patricia was in no danger of being confined to jail pending the determination of the áppeal. Patricia did not aEege that invoking the remedy of appeal, subsequent to the entry of the January 10, 2001, order, would have created an unworkable and unreasonable hardship for her and her chüdren.
The juvenile court is not whoEy without jurisdiction. The January 10, 2001, order is a valid, enforceable order of the juvenile court. Patricia failed to comply with the order, and she chose not to appeal the order. The juvenile court, exercising its inherent power, has ordered Patricia to appear to show cause why she has not complied with the court’s orders. If Patricia is found in contempt, she can appeal the contempt order.
Though a writ of prohibition may be Patricia’s preferable remedy, it is not the proper remedy. An appeal of the juvenEe court’s order would have been the correct remedy at law. See Pike, supra. My research has revealed no case, and the majority faüs to cite any case, where a writ of prohibition has been granted where the following has occurred prior to the filing of a petition for a writ of prohibition:
1. The party is represented by counsel at the hearing;
2. The party presents evidence at the hearing;
3. The party argues a motion to dismiss based on lack of subject-matter jurisdiction and personal jurisdiction;
4. The juvenile court denies the motion to dismiss;
5. The juvenEe court finds that it has subject-matter jurisdiction and personal jurisdiction;
6. The juvenEe court enters a final order; and
7. The party does not appeal the final order, and the time for appeal expires.
The reason we have not found a case is because none exists. A writ of prohibition is not appropriate unless the trial court is wholly without jurisdiction. St. Paul Mercury Ins., supra. Here, the juvenile court is not wholly without jurisdiction. Also, a writ of prohibition is only appropriate when there is no other remedy available. Pike, supra. Here, Patricia could have appealed the January 10, 2001, order. By stating that a writ of prohibition is the appropriate vehicle in the present case, the majority is expanding the applicability of the writ of prohibition.
I concur with the majority’s decision that the petition for a writ of prohibition should be denied.
Corbin and Thornton, JJ., join this concurrence.