Amy Lynn Webb Riley v. Troy Douglas Riley

RENDERED: MARCH 11, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1509-MR
AMY LYNN WEBB RILEY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 13-CI-02932
TROY DOUGLAS RILEY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: The Appellant, Amy Lynn Webb Riley, seeks review of the
Fayette Circuit Court’s October 1, 2020 order, as amended by later order entered
October 27, 2020. Therein, the circuit court granted a motion by the Appellee,
Troy Douglas Riley, to set aside his maintenance obligation for a year due to his
unemployment and disability. On appeal, Amy maintains that the circuit court
abused its discretion in so ordering because the parties’ settlement agreement,
which was incorporated by reference into their dissolution decree, explicitly
provides the duration and amount of maintenance is nonmodifiable unless both
parties consent in writing.1
Having reviewed the record and being otherwise sufficiently advised,
we must agree with Amy. The parties had already agreed that Troy’s maintenance
obligation was not modifiable and that neither Troy’s subsequent unemployment
nor disability would terminate the obligation absent the written consent of both
parties. See KRS2 403.180(6); Lockhart v. Lockhart, 566 S.W.3d 571 (Ky. App.
2018). In light of these terms, it was an abuse of discretion for the circuit court to
modify Troy’s maintenance. Accordingly, we reverse and remand.
I. BACKGROUND
In July 2013, Amy filed a petition to dissolve her marriage with Troy.
During the pendency of the dissolution, Amy and Troy entered into a written
settlement agreement, which they signed before a notary. As it pertains to this
appeal, the agreement states that since Amy had been diagnosed with Multiple
1
Amy served a copy of her notice of appeal on Troy’s counsel, and this Court likewise served
counsel with an order setting the briefing schedule. Neither Troy nor his counsel filed an
appellee brief or took any other action in this appeal prompting Amy to file a motion requesting
summary reversal of the circuit court’s order pursuant to CR 76.12(8)(c). Whether to penalize a
party for his failure to file an appellate brief is a matter committed to our sound discretion.
While we do not condone Troy’s failure to file a brief, we believe the interests of justice favor a
substantive review of the issues raised by Amy. Accordingly, we have denied Amy’s motion by
separate order.
2
Kentucky Revised Statutes.
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Sclerosis she shall receive maintenance of $500.00 per month from Troy until she
dies, remarries, or becomes a permanent resident of a nursing home. As to
modifications, the agreement states in relevant part:
Both parties further understand and agree that
notwithstanding any statutory or case law to the contrary
it is the intent and agreement of these parties that the
amount and duration of these maintenance payments
shall not be modifiable as this was a negotiated and
agreed upon condition of their settlement. Accordingly,
even if [Troy] becomes unemployed or disabled, he
shall continue to pay these sums of maintenance to
[Amy] out [of] any unemployment or disability funds he
may receive.
....
Both parties agree that this document, in the event a
decree of dissolution is granted by the Fayette Circuit
Court, shall be incorporated by reference into said decree
and that there shall be no modification or alteration of
its terms except by written document signed by both
parties.
Record (R.) at 8, 10-11 (emphasis added). Later, in August 2013, after
determining that the terms of the agreement were “not unconscionable,” the family
court incorporated the agreement into the final decree dissolving the parties’
marriage. R. at 21.
In January 2020, Troy filed a motion to terminate his maintenance
obligation, alleging he had seriously injured both knees and lost his job. Troy also,
for the first time, alleged that the initial family court judge was biased against him
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because of Amy’s employment as a clerk in the domestic violence department of
the Fayette Circuit Clerk’s office.3 After Troy obtained counsel, he filed a
supplemental motion which argued, in part, that the agreement should be set aside
pursuant to CR 60.02 due to the existence of extraordinary circumstances. At some
point prior to a ruling on his motion, Troy ceased making maintenance payments to
Amy prompting her to file a motion to hold him in contempt and for attorney’s
fees.
The circuit court conducted an evidentiary hearing in September 2020.
Shortly thereafter, in October 2020, the circuit court issued an order suspending
Troy’s maintenance obligations for one year. Although the circuit court was
troubled that the original judge who entered the dissolution decree did not recuse
given his professional relationship with Amy, it concluded that the judge’s failure
to recuse did not prejudice Troy because the parties negotiated the separation
agreement, including the maintenance provisions, without court intervention. R. at
257. As such, the court declined to relieve Troy of his maintenance obligation
solely because the prior judge had not recused.4
3
The original family court judge had retired and the remainder of the Fayette Family Court
judges recused, so the case was assigned randomly to a “regular” (i.e., not family court) Fayette
Circuit Court judge.
4
We note that Troy did not proffer any credible explanation for his delay in raising the recusal
issue. “A party alleging that a trial judge should recuse from [his] case must move for recusal
immediately after discovering the facts upon which the disqualification rests. If the motion for
recusal is not made at this time, the issue will be considered waived and the issue will not be
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After correctly noting that statutory modification of the agreement
was unavailable, the circuit court turned to Troy’s request for relief pursuant to CR
60.02. It concluded that Troy’s physical injuries had diminished his earning
capacity satisfying the requirement of an “extraordinary” change in circumstances
which made it “no longer equitable to enforce” the judgment. R. at 258. The court
suspended Troy’s maintenance obligations for one year, beginning October 1,
2020, the theory apparently being that since Troy’s car payments were set to end at
that time he would able to devote that money to paying maintenance. However,
the court noted that it would entertain a subsequent motion to set aside the
maintenance obligation once Troy’s claim for disability benefits was resolved.
The court denied Amy’s motion for contempt, finding that it was impossible for
Troy to pay $500.00 per month in maintenance.
Amy then filed a motion to alter, amend, or vacate pursuant to CR
59.05, in which she reiterated her belief that the order violated Lockhart, 566
S.W.3d 571 and KRS 403.180(6). She alternatively asked the court to make its
order suspending Troy’s maintenance obligation final and appealable. The court
issued a new order which functionally was identical to the previous one, though it
considered.” Johnson v. Commonwealth, 231 S.W.3d 800, 809 (Ky. App. 2007) (citations
omitted).
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added language stating “[t]his is a final and appealable Order[.]” R. at 285. This
appeal followed.
III. ANALYSIS
First, we must consider whether the issues have become moot during
the pendency of Amy’s appeal. The circuit court’s modification order expired by
its own terms in October 2021, before the Clerk of Court assigned the appeal to
this panel. A case is moot if a court’s decision “cannot have any practical legal
effect upon a then existing controversy” because appellate courts “do not render
purely advisory opinions.” Commonwealth v. Terrell, 464 S.W.3d 495, 498-99
(Ky. 2015) (internal quotation marks and citation omitted). Because the one-year
period under which Troy’s maintenance obligation has expired, the order is facially
moot as it no longer has any present, ongoing impact upon Amy or Troy.
However, there are exceptions to the mootness doctrine, including one which
allows appellate courts to address matters which “although moot, concern alleged
injuries or violations which are capable of repetition, yet evading review.” Id. at
499 (internal quotation marks and citation omitted). That exception applies when
“(1) the challenged action is too short in duration to be fully litigated prior to its
cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party would be subject to the same action again.” Id. (internal
quotation marks and citation omitted). We conclude that this case falls within the
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exception. The maintenance agreement is still in place between the parties and the
circuit court has already indicated its willingness to consider further modifications
should Troy request them. Accordingly, despite the fact that the present
modification order has been mooted by the expiration of time, we will proceed
with our review.
“This case involves the interpretation of a marital settlement
agreement and the family court’s statutory authority to modify that agreement.
Accordingly, only issues of law are involved and our review is de novo.” Jaburg
v. Jaburg, 558 S.W.3d 11, 13 (Ky. App. 2018).
We begin with KRS 403.250, which provides that maintenance
obligations are subject to modification due to substantially changed circumstances
“[e]xcept as otherwise provided in subsection (6) of KRS 403.180 . . . .” (emphasis
added). In turn, KRS 403.180(6) provides in relevant part that: “[e]xcept for terms
concerning the support, custody, or visitation of children, the decree may expressly
preclude or limit modification of terms if the separation agreement so provides.”
(emphasis added). The separation agreement in this case expressly provides that:
(1) “the amount and duration of these maintenance payments shall not be
modifiable” and (2) “even if [Troy] becomes unemployed or disabled, he shall
continue to pay these sums of maintenance to [Amy.]” R. at 8 (emphasis added).
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Given the unambiguous language of the parties’ separation agreement,
the circuit court correctly recognized that it lacked the authority to modify the
agreement pursuant to KRS 403.250; however, it then utilized CR 60.02 to
accomplish that same objective. This was an abuse of discretion because the
parties had already agreed that neither Troy’s subsequent unemployment nor
disability would terminate his obligation to pay the agreed upon maintenance to
Amy. The circuit court lacked the authority to modify the agreement where the
parties had previously considered and agreed that neither the amount nor duration
of maintenance would terminate under the circumstances relied on by the circuit
court to justify CR 60.02 relief.
For example, in Jaburg, 558 S.W.3d 11, the parties entered into a
settlement agreement which obligated one spouse to pay the other maintenance
until her death or remarriage. Similar to the agreement at hand, the agreement in
Jaburg “contained a catch-all modification or waiver clause stating that ‘[n]o
modification or waiver of any of the terms of this Agreement shall be valid unless
in writing and executed by the Parties hereto.’” Id. at 12. The trial court granted a
motion to terminate maintenance due to the payor’s looming unemployment. On
appeal, we explained that the trial court could not modify an expressly non-
modifiable agreement:
Under KRS 403.180(6), the parties to a dissolution of a
marriage “may expressly preclude or limit modification
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of terms if the separation agreement so provides.” By
including such a clause in the separation agreement, “the
parties may settle their affairs with a finality beyond the
reach of the court’s continuing equitable jurisdiction
elsewhere provided.” Brown v. Brown, 796 S.W.2d 5, 8
(Ky. 1990).
In this case, the family court found that changed
circumstances under KRS 403.250(1) provide an
exception to the mandate in KRS 403.180(6) that the
parties may expressly preclude modification of their
separation agreement. That is not the law. Changed
circumstances rendering the terms of a maintenance
award unconscionable is the only ground upon which a
court has authority to modify any maintenance award.
However, the clear language of KRS 403.250(1)
prohibits a court from invoking this limited authority
when the parties have a separation agreement pursuant to
KRS 403.180(6) that expressly precluded subsequent
modification of the terms of their separation agreement.
The family court’s finding it could modify the Settlement
Agreement despite the presence of non-modification
clauses was erroneous.
We note that a different panel of this Court interpreted
KRS 403.250(1) and KRS 403.180(6) in the same way.
Lockhart v. Lockhart, 2012-CA-000219-MR, 2013 WL
5969839, at *1 (Ky. App. Nov. 8, 2013). We emphasize
what we said in that case:
We recognize . . . “[t]he potential harm of a
trial court not being able to modify a
maintenance provision can lead to the
financial ruination of a party.” Woodson [v.
Woodson], 338 S.W.3d [261,] 263 [(Ky.
2011)]. Nevertheless, we are constrained to
follow the clear language of KRS
403.180(6) . . . .
Id. at *2.
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Id. at 13-14.
We reached a similar result soon thereafter in Lockhart, 566 S.W.3d at
575-76. In that case, the parties reached a settlement agreement which required the
payment of maintenance for eleven years or until the payee spouse’s remarriage.
Again, the agreement stated it could not be modified absent mutual consent. The
trial court incorporated the agreement into the decree. Later, the payor spouse
twice unsuccessfully sought to terminate maintenance due to a deterioration of his
financial circumstances. On appeal, we explained why relief was unavailable:
In the alternative, Phillip argues that KRS 403.180(6)
conflicts with the rule set out in Woodson v. Woodson,
338 S.W.3d 261 (Ky. 2011), allowing for modification of
all maintenance awards under the provisions of KRS
403.250(1). Id. at 263. However, this Court rejected that
argument in the prior appeal. Moreover, by enacting
KRS 403.180(6), our legislature permits the enforcement
of a non-modifiability clause in a separation agreement.
Thus, where the statute is applicable, that rule
controls over any contrary rule set out in our
statutory or common law.
Lockhart, 566 S.W.3d at 574 (emphasis added).
While CR 60.02 allows a circuit court to grant relief from any
judgment, it is not applicable where granting that relief would be contradictory to a
more specific statute. KRS 403.250 and 403.180(6), the more specific statutes, do
not allow modification of Troy’s maintenance obligation. As we explained in
Lockhart, KRS 403.180(6) supersedes any contrary laws or decisions. This
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necessarily includes relief pursuant to CR 60.02.5 See also Roberts v. Roberts, 744
S.W.2d 433, 437 (Ky. App. 1988) (holding that, other than the methods listed in a
separation agreement which has been incorporated into a decree, “KRS 403.250(1)
provides the exclusive method” for modifying maintenance).
Like the circuit court, we are sympathetic to Troy’s plight.
However, the parties’ separation agreement and KRS 403.180(6) preclude the
relief provided by the circuit court no matter how well intentioned it may have
been in these circumstances. The law is clear. The parties expressly agreed that
the circumstances alleged by Troy would not provide later grounds for
modification or termination of his maintenance obligation absent Amy’s written
consent. Amy did not give her written consent. As such, the circuit court lacked
the authority to grant Troy relief, even for a year. As such, we reverse the circuit
court’s order relieving Troy of his maintenance obligation.
Because the circuit court concluded that Troy was entitled to relief
from his maintenance obligation, it denied Amy’s motion for attorney’s fees and
5
We are aware that in Wilder v. Wilder, 294 S.W.3d 449, 451 (Ky. App. 2009), we affirmed a
circuit court’s decision to modify a final decree pursuant to CR 60.02. However, Wilder is
materially distinguishable. Wilder had nothing to do with maintenance or KRS 403.180(6). The
issue in Wilder was whether the trial court had the authority under CR 60.02 to disturb the
property allocation in a divorce decree in order to distribute a government stimulus check which
was not issued until well after the decree became final. We emphasized that the check could not
have been addressed in the decree since it was an unforeseeable circumstance which arose
subsequent to the decree’s issuance. By contrast, the settlement agreement in the case at hand
specifically envisioned Troy continuing to pay maintenance if he became disabled or
unemployed. In short, Wilder involved wholly distinguishable issues and facts.
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back maintenance. On remand, Amy may renew her motion, which the circuit
court shall consider in light of this Opinion and the terms of the parties’ separation
agreement.
III. CONCLUSION
For the foregoing reasons, the order of the Fayette Circuit Court
suspending Troy Riley’s maintenance obligations to Amy Riley for one year is
reversed and this case is remanded to the Fayette Circuit Court for further
proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Michael Davidson
Nam H. Nguyen
Lexington, Kentucky
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