RENDERED: MARCH 3, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0360-MR

JUSTIN ALAN LYONS APPELLANT

APPEAL FROM FRANKLIN FAMILY COURT

v. HONORABLE SQUIRE N. WILLIAMS, III, JUDGE

ACTION NO. 20-CI-00853

LAURA GRACE LYONS APPELLEE

OPINION

AFFRIMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE, 

JUDGES.

ECKERLE, JUDGE: Justin Alan Lyons (“Husband”) appeals from an order and 

decree of the Franklin Family Court which found his settlement agreement with 

Laura Grace Lyons (“Wife”) to be not unconscionable and adopting its terms as 

part of the decree of dissolution of Marriage. We conclude that the Family Court’s 
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findings were not clearly erroneous and that the Court did not abuse its discretion 

by adopting the agreement into the decree. Hence, we affirm.

Husband and Wife were married in 2012. Three children were born 

of the marriage. On October 23, 2020, Wife filed a petition for dissolution of the 

marriage. In response, Husband filed a pro se entry of appearance and waiver of 

formal service of process. The parties also filed a “Separation, Support, Custody 

and Property Settlement Agreement” (“the Agreement”). The Agreement set out 

provisions for division of property and debts, custody, and support. In pertinent 

part, the Agreement provides:

The wife is a stay-at-home mom and is not currently 

working, therefore she requires temporary maintenance 

to support the parties’ minor children. In lieu of 

maintenance, the husband will pay child support to the 

wife in the amount of $3,500.00 for a period of sixty (60) 

months. After 60 months, either party shall be entitled to 

modify this amount to reflect the termination of 

maintenance. The new amount shall not be less than the 

guidelines for child support set forth in KRS[1] 403.212.

The Agreement separately provided that Wife “will have sole custody 

of the parties’ minor children, and the husband will have timesharing by agreement 

of the parties at the wife’s discretion.” On October 30, 2020, the Family Court 

entered its findings of fact, conclusions of law, and decree of dissolution of 

1 Kentucky Revised Statutes.
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marriage. The Court adopted the parties’ Agreement, concluding that its 

provisions were “not unconscionable.”

In June of 2021, Wife filed a motion to compel and show cause why 

Husband should not be held in contempt for his failures to pay the support 

obligation set forth in the Agreement. Husband responded with a motion to set 

aside the dissolution decree, arguing that the 60-day requirement of KRS 403.044 

had not been met. He separately argued that the Agreement’s provisions regarding 

timesharing and child support were unconscionable.

On the former issue, the Family Court agreed with Husband that the 

decree had been improperly entered. On August 10, 2021, the Family Court 

entered an order vacating the decree. Following a hearing, the Family Court 

entered an order finding the Agreement’s terms relating to maintenance and child 

support were not unconscionable. The Court also found that Husband failed to 

show that he entered into the Agreement under duress. The Court, having 

previously entered a new decree of dissolution, designated that the decree be 

deemed entered as of August 7, 2021. Husband now appeals. Additional facts will 

be set forth below as necessary. 

Husband argues that the Family Court erred in its finding that the 

Agreement was not unconscionable. He argues that the terms of the Agreement 

are unconscionable because the support obligation exceeds his monthly income. 
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On similar grounds, he also contends that the Agreement’s term assigning him the 

marital credit card debt was unconscionable. We first note that Husband did not 

raise the latter issue while he was before the Family Court. “It has long been this 

Court’s view that specific grounds not raised before the trial court, but raised for 

the first time on appeal will not support a favorable ruling on appeal.” Jones v. 

Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018) (quoting Fischer v. Fischer, 348 

S.W.3d 582, 588 (Ky. 2011)). Because this issue is not properly preserved, we 

decline to address it further.

We must also point out that an appellant’s brief must include “ample 

supportive references to the record and citations of authority pertinent to each issue 

of law and [ ] shall contain at the beginning of the argument a statement with 

reference to the record showing whether the issue was properly preserved for 

review and, if so, in what manner.” CR2 76.12(4)(c)(v). See also RAP3 32(4) (eff. 

01-01-23). Husband’s brief does not include a preservation statement at the 

beginning of his argument. And while his brief includes citations to the Family 

Court record, it does not include any citations to the video record of the hearing.

In the recent case of Ford v. Commonwealth, 628 S.W.3d 147 (Ky. 

2021), our Supreme Court re-examined the options available to a reviewing court 

2 Kentucky Rules of Civil Procedure.

3 Kentucky Rules of Appellate Procedure.
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where a litigant fails to comply with the civil rules. It reiterated the options as set 

forth in Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citing Elwell v. 

Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)): ignore the deficiency, strike the brief, 

or review for manifest injustice only. However, the Court limited the option of 

employing the manifest injustice standard of review “only for errors in appellate 

briefing related to the statement of preservation.” Ford, 628 S.W.3d at 155. 

Although Husband failed to include a preservation statement, he is clearly 

appealing from the order finding the Agreement to be not unconscionable, as well 

as the decree adopting the Agreement’s terms into the judgment. In this respect, he 

properly preserved his challenge to the Family Court’s order with respect to the 

award of child support. Nevertheless, this Court is not obligated to search the 

record for evidence in support of a party’s argument. See Smith v. Smith, 235 

S.W.3d 1, 5 (Ky. App. 2006). 

While Husband did not provide adequate citations to the video record, 

our inquiry remains the same. KRS 403.180(1) permits parties to a marriage “to 

enter into a written separation agreement containing provisions for maintenance of 

either of them, disposition of any property owned by either of them, and custody, 

support and visitation of their children.” KRS 403.180(2) further provides:

In a proceeding for dissolution of marriage or for legal 

separation, the terms of the separation agreement, except 

those providing for the custody, support, and visitation of 

children, are binding upon the court unless it finds, after 
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considering the economic circumstances of the parties 

and any other relevant evidence produced by the parties, 

on their own motion or on request of the court, that the 

separation agreement is unconscionable.

A separation agreement may be set aside as unconscionable if the 

family court determines that it is manifestly unfair or unreasonable. McGowan v. 

McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983) (citations omitted). It may also 

“be set aside if it results from fraud, undue influence, or overreaching.” Id.; Money 

v. Money, 297 S.W.3d 69, 72 (Ky. App. 2009). The party challenging the 

agreement must carry a “definite and substantial” burden of proof. Peterson v. 

Peterson, 583 S.W.2d 707, 711 (Ky. App. 1979) (citation omitted). See also Mays 

v. Mays, 541 S.W.3d 516, 524 (Ky. App. 2018).

This Court reviews the Family Court’s findings regarding 

unconscionability for abuse of discretion. “The test for abuse of discretion is 

whether the trial judge’s decision was arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999). More specifically, a court abuses the discretion afforded it 

when “(1) its decision rests on an error of law . . . or a clearly erroneous factual 

finding, or (2) its decision . . . cannot be located within the range of permissible 

decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (cleaned up). 

A Trial Court’s findings of fact will only be disturbed if clearly 

erroneous. CR 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). A 
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finding of fact is clearly erroneous if it is not supported by substantial evidence. 

Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003). “Substantial evidence is 

evidence, when taken alone or in light of all the evidence, which has sufficient 

probative value to induce conviction in the mind of a reasonable person.” Id.

(citing Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 

1998); Sherfrey v. Sherfrey, 74 S.W.3d 777, 782 (Ky. App. 2002)). The Family 

Court is in the best position to weigh the evidence and determine if a separation 

agreement is unconscionable or if it resulted from duress, undue influence, or 

overreaching. Shraberg v. Shraberg, 939 S.W.2d 330, 333 (Ky. 1997).

In its findings, the Family Court noted that the only direct evidence of 

Husband’s income was his 2019 tax return, which showed an adjusted gross 

income of $16,850.00, and his 2020 return, which showed an adjusted gross 

income of $22,064.00. Since the child support obligation exceeds his documented 

monthly income, Husband states that he is unable to meet that obligation. 

Consequently, he argues that the Agreement is manifestly unfair and unreasonable.

However, “a bad bargain and unconscionability [are] . . . not 

synonymous.” Pursley v. Pursley, 144 S.W.3d 820, 827 (Ky. 2004) (quoting

Shraberg, 939 S.W.2d at 333). The Family Court acknowledged the tax returns 

did not indicate an income that could sustain a $3,500.00 monthly obligation. But 

in his post-hearing memorandum, Husband stated he anticipated that his business 
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was doing well and that he would gross approximately $100,000.00 for 2021. The 

Family Court also noted that Husband admitted to receiving additional payments 

that were not reflected on these returns. The Court also pointed to evidence of the 

parties’ lifestyle during the marriage and leading up to the execution of the 

Agreement. The Court found this lifestyle indicated Husband had a sufficient 

earning capacity to meet his obligation under the Agreement. Finally, the Family 

Court noted that the $3,500.00 monthly obligation in the Agreement was 

designated to cover both maintenance and child support. The Court concluded that 

this amount was reasonable under the circumstances.

Husband does not show that these conclusions were clearly erroneous. 

Furthermore, he does not appeal from the Family Court’s finding rejecting his 

claims of duress, fraud, or undue influence. Therefore, we cannot find that the 

Family Court abused its discretion in finding the Agreement to be not 

unconscionable or in adopting the Agreement as part of the decree.

Accordingly, we affirm the order of the Franklin Family Court.

ALL CONCUR. 

BRIEF FOR APPELLANT:

Kevin P. Fox

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Corey M. Nichols

Lexington, Kentucky