IMPORTANT NOTICE
"NOT TO BE PUBLISHED OPINION"
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED" PURSUANT TO RULE OF APPELLATE
PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT
BE CITED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE.
UNDER RAP 41, UNPUBLISHED OPINIONS OF
KENTUCKY APPELLATE COURTS RENDERED
AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER
RAP 40(G), MAY BE CITED BY A PARTY FOR
CONSIDERATION BY A COURT IF THERE IS NO
PUBLISHED OPINION THAT ADEQUATELY
ADDRESSES THE POINT OF LAW BEING ARGUED
BY A PARTY.
IF AN UNPUBLISHED OPINION IS CITED FOR
CONSIDERATION BY A COURT THE OPINION SHALL
BE SET OUT AS AN UNPUBLISHED OPINION IN THE
DOCUMENT IN WHICH THE UNPUBLISHED
OPINION IS CITED.
1
RENDERED: JUNE 25, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0443-MR
JOVAN DAVID REBOLLEDO MENDEZ APPELLANT
ON APPEAL FROM COURT OF APPEALS
NO. 2025-CA-0581
HARDIN CIRCUIT COURT NO. 24-CI-01889
HONORABLE MATTHEW BRENT HALL,
JUDGE, HARDIN FAMILY COURT
AND
APPELLEES
KEELY MARIE BRANDON REAL PARTY IN INTEREST/
APPELLEE
MEMORANDUM OPINION OF THE COURT
Jovan David Rebelledo Mendez appeals from an order of the Court of Appeals denying his petition for a writ of prohibition. We affirm, as Mendez has not established his entitlement to a second-class writ as he could have appealed from adverse orders against him and obtained relief.
I. FACTUAL AND LEGAL BACKGROUND
Mendez and Keely Marie Brandon were married in Kentucky in 2007 and have two children, a daughter born in 2010 in Kentucky and a son born in 2016 in Japan. Mendez is a dual citizen of the United States and Mexico and Brandon is a citizen of the United States. Mendez, Brandon, and their children resided together in Japan from 2014 until 2024. Brandon maintained her Kentucky residency in Hardin County while the family resided in Japan.
2
2
In April 2024, Brandon and the children returned to Hardin County and resided there for six months. Then, in October 2024, Brandon filed a petition before the Hardin County Family Court (state court) for dissolution of the marriage and for custody of the children. Service on Mendez was attempted through a warning order attorney, who mailed the legal documents to Japan. This attempt did not comply with the Hague Service Convention1according to the provisions which Japan has adopted, which specifies that service can only be made through its Minister for Foreign Affairs with a copy of the service translated into Japanese.2It is unclear whether Mendez ever received the mailed legal documents.
Nevertheless, Mendez learned about the dissolution petition. Rather than either consenting to service or having an attorney enter a special appearance simply to contest jurisdiction, on November 27, 2024, Mendez's attorney filed a Notice of Wrongful Retention Claim and Notice to Stay Pursuant to Article 16 of
3
the Hague Child Abduction Convention.3This notice stated that it was a special appearance. There was no federal case pending in which a wrongful retention claim was being litigated.
On December 15, 2024, the state court scheduled a hearing to consider whether the children were wrongfully retained in Kentucky to be heard on February 17, 2025. Notice was provided to Mendez's attorney. On December 20, 2024, Mendez filed a Verified Petition for Return of Children to Japan and Issuance of Show Cause Order in the United States District Court for the Western District of Kentucky (federal court). On January 14, 2025, Brandon filed a motion to dismiss the federal court action based on the state court having a scheduled hearing on the wrongful retention claim and provided information that Mendez had signed a power of attorney permitting the children to stay in Kentucky. The state court hearing regarding the wrongful retention claim was held as scheduled. Mendez did not appear.
4
Brandon testified at the hearing before the state court that the parties had agreed it was in the children's best interest that they attend school in the United States because the children were having trouble in Japanese schools. She submitted a power of attorney, which Mendez and she had signed, which permitted Brandon's sister and parents to act on the children's behalf, including enrolling the children in school.
On February 25, 2025, the state court denied the wrongful retention claim based on this evidence, granted Brandon temporary custody of the children, and made recitations of finality to allow the immediate appeal of this order. Mendez did not appeal from this order.
On March 18, 2025, the federal court directed Mendez to show cause why the federal case should not be dismissed.
On March 24, 2025, the state court entered findings of fact, conclusions of law, and a judgment and decree regarding the parties' divorce and custody of the children. In this order, the state court conceded that it did not have personal jurisdiction over Mendez but determined that it had jurisdiction to grant the divorce and award custody. Notably, in its order awarding custody of the children to Brandon, the state court stated:
The Respondent has only been constructively served and therefore, this Court does not have personal jurisdiction over the Respondent to order child support at this time. Furthermore, since the Respondent has not subjected himself to the personal jurisdiction of this Court, this Court is going to withhold any parenting time for the Respondent until he is personally before this Court. The Court further finds that it would be detrimental to the children for the Respondent to be awarded any visitation at this time.
5
On May 9, 2025, Mendez filed an original action before the Court of Appeals requesting a writ of prohibition and filed a motion for emergency relief. Mendez argued he was entitled to a writ staying all underlying proceedings, an order declaring all orders entered by the circuit court void because he was not served, or an order that any future service comply with the requirements of the Hague Service Convention. As to the underlying merits, Mendez argued he could not properly be served by a warning order attorney, as Japan does not permit this method under the Hague Service Convention, and so the state court never obtained personal jurisdiction over him. As to his unlawful retention argument, Mendez argued this matter should have been determined by the federal court after he requested that the state court refrain from ruling on this issue. He argued the children were wrongfully retained by Brandon, where he only gave her permission for the children to visit Brandon's extended family, they had return flights booked, and he was blindsided when Brandon chose to remain in Kentucky with the children. He also argued that when he traveled to Kentucky during the summer of 2024 to persuade Brandon to return to Japan with him, he was denied access to his children by her family. On May 15, 2025, the Court of Appeals denied Mendez's motion for emergency relief.
On May 29, 2025, the federal court issued an opinion and order dismissing the pending federal case based on the state court action resolving the unlawful retention claim. Mendez moved to supplement the record before the Court of Appeals to include this opinion and order.
6
On September 25, 2025, the Court of Appeals issued an order denying Mendez's petition for a writ of prohibition and granting his motion to supplement the record. The Court of Appeals noted that in the federal court's opinion and order abstaining and dismissing, the federal court explained that Mendez failed to formally object to the state court proceeding to rule on his wrongful retention claim, did not object to the state court's jurisdiction, and failed to file a proceeding in federal court until after the state court set a hearing on this matter, failed to inform the federal court of the state court proceeding, and failed to move to expedite the federal court proceeding until after the state court ruled on the wrongful retention claim. The Court of Appeals determined that Mendez did not qualify for a first- class writ of prohibition because the state court had subject matter jurisdiction to hear this kind of case, and a lack of personal jurisdiction over him was properly analyzed under the second class of writ.
As to his entitlement to a second-class writ, the Court of Appeals acknowledged that Mendez could have a legitimate argument that he was not appropriately served, but it would not address this argument in this original action where "Mendez had ample opportunity to appear before the state court to contest jurisdiction on the grounds he had not been properly served. He chose not to appear. This Court will not rule on the issue before the state court has had an opportunity to rule."
The Court of Appeals further determined Mendez was not entitled to a writ as he had an adequate remedy by appeal from both the order denying his
7
wrongful retention claim and the opinion and order awarding custody of the children to Brandon. The Court observed that Mendez failed to file any appeal or to file a post-judgment motion.
Mendez timely appealed from the Court of Appeals' decision denying his petition for a writ of prohibition as a matter of right. On March 16, 2026, Brandon filed a motion before this Court seeking the dismissal of this appeal on the basis that Mendez could no longer receive the relief he sought—that the matter be resolved by the federal court—as the federal court had finally dismissed his case on March 11, 2026, when it denied Mendez's motion to alter, amend, or vacate its order of dismissal, rendering the relief he sought unavailable and his petition moot. Mendez opposed this motion, and the matter was passed for decision on the merits. Other issues are peripherally raised before this Court relative to the wrongful retention claim, the improper service of process claim, and whether visitation could be denied under these circumstances.4However, we cannot reach those underlying issues because the sole issue before us is whether Mendez is entitled to a writ of prohibition.
The Court of Appeals is correct that this matter is properly considered under the standard for a second-class writ and that Mendez does not qualify for relief.5
8
II. ANALYSIS
Kentucky Rules of Civil Procedure (CR) 81 provides that the remedy of prohibition "may be obtained by original action in the appropriate court."
However, "[a] trial court acting contrary to the law is not the same thing as a trial court acting outside of its jurisdiction." Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012). Therefore, "[a] petitioner's allegations of error alone do not justify extraordinary relief under CR 81." Romines v. Coleman, 671 S.W.3d 269, 273 (Ky. 2023).
We have held that "the decision whether to grant a writ of prohibition lies in the sound discretion of the reviewing court." Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007). We review a decision denying a writ under the abuse of discretion standard, but any legal determinations are reviewed de novo. Lawson v. Woeste, 603 S.W.3d 266, 271 (Ky. 2020).
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.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
It is well established that the jurisdiction referenced in first-class writs is subject-matter jurisdiction, that is, whether the Court had the authority to hear this kind of case. Lawson v. Woeste, 603 S.W.3d 266, 272 (Ky. 2020). The state court had subject matter jurisdiction to consider Mendez's wrongful
9
retention claim. 22 U.S.C. § 9003(a) provides: "The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention." See Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999); Harsacky v. Harsacky, 930 S.W.2d 410 (Ky. App. 1996) (both resolving matters under the Convention and ICARA). As Mendez did not appear, the family court could properly decide based on the information that Brandon provided that the children were not wrongfully retained by her. See 22 U.S.C. § 9003(e). Once the wrongful retention claim was decided against Mendez, the state court could properly consider custody issues under Kentucky law.
The trial court had subject matter jurisdiction over this dissolution and custody matter as Brandon and the children had been residing in Kentucky for more than 180 days before the action was filed, which made Kentucky the children's home state for purposes of custody determinations. See KRS 403.140; KRS 403.270; KRS 403.280; KRS 403.800; KRS 403.822; Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012). Therefore, this matter does not qualify to be evaluated as a first-class writ and must be evaluated under the standard for a second-class writ.
Mendez argues that the state court's lack of personal jurisdiction makes this matter qualify under the standard for a first-class writ. Mendez's argument is unavailing and contrary to our established caselaw.
As we explained in Goldstein v. Feeley, 299 S.W.3d 549, 553 (Ky. 2009),
"[t]he phrase 'outside of its jurisdiction' in the context of the Hoskins test . . .
10
refer[s] to the court's subject matter jurisdiction, and not to personal jurisdiction over a particular party." Therefore, a lack of personal jurisdiction over a party must be evaluated under the second-class writ standard. Id. Under the second-class writ standard, "it is clear that showing lack of an adequate remedy by appeal and great and irreparable injury amounts to a threshold for one seeking extraordinary relief based on error within the trial court's jurisdiction. Until this threshold is met, the question of trial court error does not arise." Fritsch v. Caudill, 146 S.W.3d 926, 928 (Ky. 2004). "In other words, only after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue." Hoskins, 150 S.W.3d at 18.
"Lack of an adequate remedy by appeal is an absolute prerequisite to the issuance of a writ under this second category." Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 615 (Ky. 2005). "A writ may not be used as a substitute for appeal or to circumvent normal appellate procedure. The extraordinary remedy of a writ is not available when a trial court's alleged error in the exercise of its jurisdiction can be addressed in the normal appellate process[.]" Lawson, 603 S.W.3d at 276 (internal citations omitted). See Lee,
369 S.W.3d at 34 (noting "extraordinary writs are no substitute for the ordinary appellate process, and the interference with the lower courts required by such a remedy is to be avoided whenever possible").
A party fails to show that there is no adequate remedy by appeal where the party had the opportunity to file an appeal but failed to take such an
11
action. Wyatt, Tarrant & Combs v. Williams, 892 S.W.2d 584, 586 (Ky. 1995).
"This Court cannot approve of exercises of original jurisdiction in cases where no remedy by appeal exists at the time of the request solely as a result of actions taken, or not taken, by the petitioner." Id.
Accordingly, Mendez's request for a writ of prohibition fails because he did not establish that he lacked an adequate remedy by appeal. An appeal of either the order concluding the children were not unlawfully retained or the opinion and order granting Brandon custody of the children and denying Mendez visitation could have properly addressed any errors the state court committed. Mendez's failure to take advantage of this opportunity does not allow him to qualify for a writ of prohibition.
III. CONCLUSION
We affirm the Court of Appeals' denial of Mendez's petition for a writ of prohibition. The Court of Appeals correctly determined that Mendez's petition was appropriately evaluated as a second-class writ. As Mendez has failed to establish the threshold requirement that he lacked an adequate remedy by appeal from the Hardin Family Court's decisions, his petition was properly denied.
All sitting. All concur.
12
COUNSEL FOR APPELLANT:
Jason A. Bowman
Bowman Legal Inc. COUNSEL FOR REAL PARTY IN INTEREST/
APPELLEE, KEELY MARIE BRANDON:
Misty K. Nall
William Barry Birdwhistell Aldridge & Birdwhistell Law Firm, PSC
COUNSEL FOR APPELLEE, HON.
M. BRENT HALL:
Pro Se