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Southard v. Shumate7/8/2005
AFFIRMING
BEFORE: COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
Tommy Southard appeals from an order of the Hardin Circuit Court denying his petition for a writ prohibiting the enforcement of a Hardin District Court order appointing Kimberly Renfro as guardian of Southard's minor daughter, K.S. We agree with the circuit court that the district court was acting within its jurisdiction, and Southard has failed to state any facts showing that he lacks an adequate remedy by appeal or that irreparable harm will occur if the petition is not granted. Hence, we affirm.
The complete facts of this action are not entirely clear, but the following relevant facts do not appear to be in dispute. Tommy Southard and Breanna Renfro are the parents of K.S. (d.o.b. 01/02/2001), but neither has physical custody of the child. Southard is currently incarcerated and Breanna Renfro's location is not listed in the record. Breanna's parents, Kimberly and Lewis Renfro, have physical custody of K.S., but it appears that there has been a proceeding in Hardin Circuit Court involving the child's custody. In addition, K.S. was a party to a personal-injury action against Hardin Memorial Hospital.
On May 28, 2004, the attorney for K.S. in the personal-injury action contacted Southard regarding a settlement offer by Hardin Memorial. Due to the pending custody litigation, Southard declined to sign the settlement agreement on K.S.'s behalf. Thereafter, on June 7, Kimberly Renfro filed a motion in Hardin District Court, Probate Division, seeking to be appointed as K.S.'s guardian for purposes of effecting the settlement. Renfro's petition clearly sought appointment as the child's guardian, but her notice-motion and tendered order erroneously stated that she was seeking appointment as guardian ad litem. Southard filed a motion to dismiss opposing Renfro's appointment as guardian ad litem.
Following a hearing, the district court, the Hon. Kimberly W. Shumate, denied the motion to dismiss. The court also conditionally appointed Renfro as K.S.'s guardian, subject to any subsequent custody orders by the Hardin Circuit Court. Thereafter, Southard filed a petition in the Hardin Circuit Court seeking to prohibit appointment of Renfro as K.S.'s guardian. The circuit court denied the petition and Southard's later motion to reconsider. This appeal followed.
While before the circuit court, Southard primarily focused on the notice-motion-order which states that Renfro was seeking to be appointed as K.S.'s guardian ad litem. He correctly pointed out that only a practicing attorney can be appointed as a guardian ad litem. After reviewing the district court record, the circuit court found that the use of the guardian ad litem language on the notice-motion-order was a mistake, and that the district court only appointed Renfro as K.S.'s guardian. In this appeal, Southard argues that the venue was improper for the motion in Hardin District Court, that the district court was required to appoint a guardian ad litem for K.S. for the guardianship proceedings, and that the district court overlooked a clear conflict of interest by Renfro's attorney, who also represented K.S. in the personal injury action.
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. Although Sou
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