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NOT TO BE PUBLISHED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 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

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, 
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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 nonmodifiable 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:

Michael Davidson

Nam H. Nguyen

Lexington, Kentucky

NO BRIEF FOR APPELLEE.