IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION .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 : APRIL, 23, 2009 NOT TO 13E PUBLISHED

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511y1o9 ketu.~ ~xtP.c, CHARLES LAMAR JOHNSON APP .LLA[VT

ON REVIEW FROM COURT OF APPEALS V. CASE NO . 2008-CA-001222-OA JEFFERSON CIRCUIT COURT CASE NOS . 04-J-500469,87-PA-4897 AND 89-PA-5073

HON . HUGH SMITH HAYNIE, JUDGE, APPELLEES FAMILY CIRCUIT COURT ; HON. JOSEPH O'REILLY, JUDGE, FAMILY CIRCUIT COURT; AND HON . PAULA SHERLOCK, JUDGE, FAMILY CIRCUIT COURT

AND

GEORGE B. BOEHNLEIN, DIRECTOR, (REAL PARTIES IN INTEREST) JEFFERSON COUNTY CHILD SUPPORT DIVISION ; DEANA H. MCDONALD, ASSISTANT COUNTY ATTORNEY ; CABINET FOR HEALTH AND FAMILY SERVICES ; AND COMMONWEALTH OF KENTUCKY

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Charles Lamar Johnson petitioned the Kentucky Court of Appeals for a

writ of prohibition to prevent the Jefferson County Circuit Court from enforcing

orders of non-wage garnishment, which were sought by the Cabinet for Health and Family Services to satisfy Johnson's delinquency in his child support

payments . The Court of Appeals denied Johnson's request for a writ, holding

that because Johnson did not allege that Judge Haynie was acting outside of

his jurisdiction and because Johnson had an adequate remedy by appeal, he

failed to meet any of the grounds required for the issuance of a writ . Agreeing

that the Court of Appeals acted properly in this instance, we affirm its denial of

Johnson's request for a writ of prohibition.

RELEVANT FACTS

On May 28, 2008, the Cabinet for Health and Family Services filed three

Orders of Garnishment (Non-Wage) with the Jefferson Circuit Family Court

pursuant to KRS 205 .778(1) . These three Orders named Charles Lamar

Johnson as the judgment debtor, listed National City Bank as the Garnishee,

and included the total amount due as $32,065 . Subsequently, on June 4,

2008, after being served with the orders of garnishment, National City Bank

closed several of Johnson's bank accounts and tendered the funds in the

accounts, totaling approximately $30,000, to the Cabinet for Health and Family

Services, who distributed them to the parties who were owed child support

payments . On June 23, 2008, Johnson sought a writ in the Court of Appeals,

alleging that the Jefferson Circuit Court had acted erroneously in allowing his

bank accounts to be garnished because he had not been given proper notice or

an opportunity to argue that his child support obligations were fulfilled by the

transfer of his monthly disability checks . On August 13, 2008, the Court of Appeals denied Johnson's request for a writ, and Johnson then appealed to

this Court as a matter of right . Ky. Const. § 110(2)(a) ; CR 76 .36(7) (a) .

ANALYSIS

Whether to grant or deny a writ of prohibition is within the sound

discretion of the court with which the petition is filed . Haight v. Williamson ,

833 S .W.2d 821, 823 (Ky . 1992) . Thus, an appellate court ultimately reviews

that decision for an abuse of discreti on . Newell Enterprises, Inc v. Bowling,

158 S .W.3d 750, 754 (Ky. 2005) . In Hoskins v. Maricle, 150 S.W .3d 1, 10 (Ky.

2004), this Court explained that

[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 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.

Here, Johnson argues that his case falls into the second class of writs,

contending that the circuit court acted erroneously, though within its

jurisdiction, when it allowed the funds in his bank accounts to be garnished .

However, as the Commonwealth notes, the circuit court did not necessarily act

in Johnson's case. Rather, the Cabinet for Health and Family Services (the

Cabinet) simply filed the Order of Garnishment forms with the circuit clerk and

served these orders on the financial institutions where Johnson maintained his

accounts . Although the circuit court was responsible for entering these orders, the decision to garnish Johnson's bank accounts was made by the Cabinet .

Furthermore, a party requesting a writ of prohibition must demonstrate

that he has no adequate remedy by appeal. Id. In this case, Johnson has a

clear remedy by appeal that is specifically set forth in the Order of

Garnishment form. The order form states that if the judgment debtor wants to

contest the garnishment of his property, he can "immediately request a hearing

in the court listed above by filing a sworn written request with the Clerk of the

Court within ten (10) days of the Garnishee's Date of Receipt noted above ."

Ironically, Johnson filled out three affidavits to challenge the three orders of

garnishment filed by the Cabinet and submitted them to the Jefferson Circuit

Family Court on July 8, 2008 . The Circuit Court is holding these affidavits

pending the resolution of Johnson's appeal to this Court. Therefore, Johnson

clearly had an "adequate remedy by appeal or otherwise" and will be able to

participate in a hearing challenging the garnishments .

Despite this adequate remedy, Johnson claims that the Court of Appeals

abused its discretion by not explaining in detail its factual findings and legal

justifications on which the denial was based . Although Johnson is correct that

the Court of Appeals resolved his claim in a very brief Order, the fact remains

that, as noted above, Johnson did have a clear remedy and was not entitled to

a writ of prohibition. Secondly, without citing any Kentucky statutes or case

law, Johnson also claims that a writ of prohibition is the appropriate remedy

when this Court needs to regulate the judicial process and prevent agents of the state from violating statutory and constitutional law . This contention is

without merit and unsupported by any legal authority. Furthermore, even if

the Cabinet did not strictly comply with the statutory notice requirements,

such failure can be adequately addressed during the hearing Johnson

requested when he filed his affidavits challenging the garnishment. ) Therefore,

the Court of Appeals did not abuse its discretion in denying Johnson's request

for a writ of prohibition .

CONCLUSION

In this case, the Court of Appeals properly recognized that the circuit

court had not acted erroneously, that Johnson had an adequate remedy by

appeal, and that he was not entitled to a writ of prohibition. In accordance

with the procedures set forth on the Order of Garnishment form, Johnson has

submitted affidavits to the circuit court challenging the garnishments, and

upon disposition of Johnson's appeal to this Court, the circuit court will

conduct a hearing and allow Johnson the opportunity to argue his position

with respect to the garnishments. This procedure constitutes an adequate

remedy and makes a writ wholly inappropriate in this case. Thus, the August

KRS 425.501 does not have a pre-garnishment notice requirement . KRS 425.501(3) does require the garnishee to provide notice to the judgment debtor, but National City complied with this requirement when it sent written notice to Johnson that his accounts had been garnished. KRS 205.778 requires the Cabinet to provide notice to the individual subject to a child support lien "within two (2) business days of the date that notice is sent to the financial institution ." Here, although Johnson received a letter entitled "Advance Notice of Intent to Collect Past-Due Support" from the Cabinet, he alleges that he did not receive it until June 19, 2008, eleven business days after the Cabinet sent the orders of garnishment to National City Bank. Whether this constituted a statutory violation, and the appropriate remedy, if any, should ultimately be determined during the circuit court's hearing as contemplated by the Order of Garnishment form. 13, 2008 Order of the Court of Appeals denying Johnson's request for a writ of

prohibition is affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Charles Lamar Johnson, # 125989 Kentucky State Reformatory 3001 W. Highway 146 LaGrange KY 40032

COUNSEL FOR APPELLEE HON . HUGH SMITH HAYNIE, JUDGE :

Hon . Hugh Smith Haynie, Judge Family Circuit Court Division Two Jefferson County Judicial Center 700 West Jefferson Street Louisville KY 40202-4730

COUNSEL FOR APPELLEE HON . JOSEPH W. O'REILLY :

Hon . Joseph W. O'Reilly Family Circuit Court, Division Seven Judicial Center 700 West Jefferson Street Louisville, KY 40202

COUNSEL FOR APPELLEE HON . PAULA SHERLOCK :

Hon . Paula Frances Smith Sherlock 7901 Westover Drive Prospect KY 40059 COUNSEL FOR REAL PARTY IN INTERST COMMONWEALTH OF KENTUCKY :

Jack Conway Attorney General Room 118 Capitol Building Frankfort KY 40601

COUNSEL FOR REAL PARTY IN INTEREST CABINET FOR HEALTH AND FAMILY SERVICES:

Jon Robert Klein Cabinet for Health and Family Services Office of Legal Services 275 East Main Street 5W-B Frankfort KY 40621

COUNSEL FOR REAL PARTY IN INTEREST DEANA H. MCDONALD, ASSISTANT COUNTY ATTORNEY :

Deana H . McDonald Assistant Jefferson County Attorney Fiscal Court Building Suite 1001 531 Court Place Louisville KY 40202

COUNSEL FOR REAL PARTY IN INTEREST GEORGE B. BOEHNLEIN, DIRECTOR, JEFFERSON COUNTY CHILD SUPPORT DIVISION :

George B. Boehnlein Director, Jeferson County Child Support 315 W . Muhammad Ali Blvd . Louisville, KY 40202