llleoRTANT NOTlcE NoT To BE PuBLlsHED 0PlNloN THls 0PlNloN ls DEslGNATED "NoT To BE PuBLlsHED." PuRsuANT To JHE RuLEs oF clvlL PRocEDu`RE PRoMuLGATED BY THE suPRElle couRT, cR 76.28(4)(€), THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE clTED on usED As BlNDlNG PREcEDENT lN ANv oTHER cAsE lN ANv~couRT oF THls sTATE; HoWEvER, uNPuBLlsHED I<ENTucl<Y APPELLATE DEclsloNs,' RENDERED AFTER JANuARY 1, 2003, MAY BE clTED FoR coNleERATloN BY THE couRT lF THERE ls No PuBLlsHED oPlNloN THAT wouLD ADEQuATELv ADDREss THE lssuE , BEFoRE THE couRT. 0PlNloNs_ clTED FoR coNleERATloN BY THE couRT sHALL BE sET ouT As AN uNPuBLlsHED DEclsloN lN THE FlLED Docu~lleNT AND A coPY oF THE ENTIRE DEclsloN sHALL BE TENDERED ALoNG WlTH THE DocuMENT To THE couRT AND ALL PARTlEs To THE AchoN_.

RENDERED: APRIL 27, 2017 z -IS D O%npreme Tnurt n"f BHHI;§T 2016-SC-000526-MR DATEéh§)z/<.A,QMM.D¢ JOI-IN DAVID LEE APPELLAN_T

ON APPEAL FROM KENTUCKY COURT OF APPEALS V. CASE NO. 2016~CA-000625-OA JEFFERSON CIRCUIT COURT NO. 15-D.-502354-003 HON. PAULA F. SHERLOCK, JUDGE, - APPELLF_:E JEFFERSON FAMILY coURT, AND _ ANGELA JEAN KING AND REAL PARTIES 11'\1 iNrEREsr 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.l 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

I. FACTUAL AND PROCEDURAL HISTORY. .

The original action in this case arose from-domestic violence proceedings between Lee and Angela dean 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. ln 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. t Therefore, the undersigned judge recuses herself and directs the court administration office to reassign this matter. l Two weeks later, and before the court administrator could reassign the case, King moved to dismiss the case against Lee. The parties verbally agreed

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

In Janua_ry 2016, King filed a third petition for a DVO against Lee, and the trial court entered an EPO on January l 1, 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 against Lee. Lee also filed a direct 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 ouained in haskins v. Map'cze, 1'50 s.w.sd 1, 10 (Ky. 2004L 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.

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

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

Once a judge is properly disqualiiied and recused, reentry into the case would be proper only upon a showing of affirmative evidence that the conflict no longerl 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, Ir_Lc. 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`riot 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

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 dispute that mandamus may not be used as a substitute for appeal.” Nat’l Gypstim Co., 736 S.W.Zd 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, KRS5- 26A.015 and 26A.020, remain available to him as does future direct appeal III. CONCLUSION. lFor 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.

24, 2017) (unpublished).

COUNSEL FOR APPELLANT: John David Lee, pro se coUNsEL FoR APPELLEE: Hon. Paula Sherlock COUNSEL FOR REAL PARTY IN INTEREST: Andy Beshear Attorney General of Kentucky Steven Romines Romines, Weis, & Young