Petrey v. Cain, No. 98-SC-692-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtCOOPER
Citation987 S.W.2d 786
PartiesRobert Ray PETREY, Appellant, v. William T. CAIN, Judge, Lincoln Circuit Court and Bonnie Parker (now Roark), (Real Party in Interest), Appellees.
Decision Date25 March 1999
Docket NumberNo. 98-SC-692-MR

Page 786

987 S.W.2d 786
Robert Ray PETREY, Appellant,
v.
William T. CAIN, Judge, Lincoln Circuit Court and Bonnie
Parker (now Roark), (Real Party in Interest), Appellees.
No. 98-SC-692-MR.
Supreme Court of Kentucky.
March 25, 1999.

Page 787

Michael L. Judy, Johnson, Judy, True & Guarnieri, LLP, Frankfort, for Appellant.

John E. Clontz, Clontz & Cox, Mt. Vernon, for Appellees, Parker (now Roark).

COOPER, Justice.

Robert Ray Petrey and Bonnie Roark were divorced by a decree of the Anderson Circuit Court in 1987. That decree also awarded Robert sole custody of the parties' infant daughter, Amanda, whose date of birth is February 7, 1983. On May 14, 1998, Bonnie filed a motion in the Lincoln Circuit Court to modify the previous custody decree by converting it to a joint custody decree with Bonnie as the "primary residential caretaker." She accompanied her motion with her own affidavit alleging inter alia that Robert had abdicated custody to the paternal grandparents and that Amanda had attempted to run away from the home of the de facto custodians. Judge William T. Cain, regular judge of the Lincoln Circuit Court, scheduled an evidentiary hearing on the motion. Robert then filed an original action petitioning the Court of Appeals to issue a writ prohibiting Judge Cain from conducting any further proceedings on the motion. Ky . Const. § 111(2). The Court of Appeals denied the

Page 788

petition and Robert appeals to this Court as a matter of right. Ky. Const. § 115.

In support of his petition, Robert asserts that (1) Bonnie filed only one affidavit in support of her motion and the statutory scheme requires that at least two affidavits be filed; and (2) the affidavit which she filed contains insufficient factual allegations to warrant a hearing on the motion. KRS 403.350.

The issuance of a writ of prohibition is appropriate only when the inferior court is acting without jurisdiction, or when it is proceeding erroneously within its jurisdiction and irreparable injury will result to the petitioner for which there is no adequate remedy at law. Pace v. Wolfinbarger, Ky., 420 S.W.2d 561 (1967); Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984). An inferior court's jurisdiction within the meaning of the rules applicable to prohibition connotes subject matter jurisdiction. Preston v. Meigs, Ky., 464 S.W.2d 271, 275 (1971). Ordinarily, "subject matter jurisdiction" refers to a court's authority to determine "this kind of case" as opposed to "this...

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45 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2004
    ...has no other adequate remedy at his disposal"), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Coms v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which im......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 Diciembre 2004
    ...has no other adequate remedy at his disposal"), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Corns v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which i......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • 31 Agosto 2000
    ...decree earlier than two years after decree signed absent affidavits alleging endangerment not jurisdictional); but see Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999) (affidavit requirement in statute similar to § 25-411 jurisdictional); In re Marriage of Lundby, 289 Mont. 74, 959 P.2d 485, ¶......
  • Evans v. Hess, NO. 2013-CA-002072-ME
    • United States
    • Court of Appeals of Kentucky
    • 8 Abril 2016
    ...family court's decision voidable, not void ab initio." Id. atPage 12 624. In so holding, the Court explicitly overruled Petrey v. Cain, 987 S.W.2d 786 (Ky. 1999). Id. The trial court appointed an expert psychologist to conduct a review and evaluation. The psychologist compiled a report, whi......
  • Request a trial to view additional results
45 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 Diciembre 2004
    ...no other adequate remedy at his disposal"), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Corns v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which ......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2004
    ...no other adequate remedy at his disposal"), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Coms v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which i......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • 31 Agosto 2000
    ...decree earlier than two years after decree signed absent affidavits alleging endangerment not jurisdictional); but see Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999) (affidavit requirement in statute similar to § 25-411 jurisdictional); In re Marriage of Lundby, 289 Mont. 74, 959 P.2d 485, ¶......
  • Evans v. Hess, NO. 2013-CA-002072-ME
    • United States
    • Court of Appeals of Kentucky
    • 8 Abril 2016
    ...court's decision voidable, not void ab initio." Id. atPage 12 624. In so holding, the Court explicitly overruled Petrey v. Cain, 987 S.W.2d 786 (Ky. 1999). Id. The trial court appointed an expert psychologist to conduct a review and evaluation. The psychologist compiled a report, which......
  • Request a trial to view additional results

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