403.180 Separation agreement — Court may find unconscionable.

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403.180    Separation agreement — Court may find unconscionable.

KRS 403.180 Separation agreement – Court may find unconscionable.   Link to Current Annotated Statute

 KRS 403.180    Separation agreement — Court may find unconscionable.

(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may 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.
(2) 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 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.
(3) If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property, support, and maintenance.
(4) If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
(a) Unless the separation agreement provides to the contrary, its terms shall be set forth verbatim or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
 (b) If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and state that the court  has found the terms not unconscionable.
(5) Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
(6) Except 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. Otherwise, terms of a separation agreement are automatically modified by modification of the decree.
History: Created 1972 Ky. Acts ch. 182, sec. 8.
 
 
ANNOTATIONS:
 
Griggs v. Griggs, No. 2008-CA-001169-MR (Ky. App. 9/11/2009) (Ky. App., 2009)
     In accordance with KRS 403.180, the decree of dissolution specifically states, "The Separation Agreement filed herein is incorporated as part of this Decree, as the Court finds the Separation Agreement not to be unconscionable, and the parties are ordered to perform the terms of this Agreement."
        Clearly, under KRS 403.180, the parties bear the burden of insuring that the settlement agreement that they submit to the court accurately reflects the terms of their agreement. Furthermore, "[q]uestions relating to the construction, operation and effect of separation agreements between a husband and wife are governed, in general, by the rules and provisions applicable to the case of other contracts generally." Richey v. Rickey, 389 S.W.2d 914, 917 (Ky. 1965) (internal citation omitted).
        The plain language of the October 2005 settlement agreement that Joseph signed states, "I have read the above Separation Agreement and agree with its terms and conditions . . . ." Other than the fact that the February 2005 draft of the settlement agreement was signed by Mary, we find absolutely no evidence of record to support Joseph’s claim that the parties mutually agreed to the terms set forth in that draft. Therefore, Joseph is bound by the clear language to which he agreed. As such, the trial court properly denied his motion to modify the separation agreement.
        The order of the Clark Circuit Court denying Appellant, Joseph Warren Griggs’ motion to modify the separation agreement is affirmed.
 
 
Addison v. Addison, No. 2007-CA-001848-MR (Ky. App. 2/27/2009) (Ky. App., 2009)
    Kevin’s motion requested that he be awarded a "credit towards his maintenance obligation" for any mortgage payments toward the marital residence that Lydia failed to make as required by the agreement. Thus, as construed by the court, he sought to enforce the agreement as a contract, a remedy specifically provided for in KRS 403.180. The family court did not modify the maintenance award but "granted an offset" against Kevin’s obligation in the amount of $5,000 to "be taken at the rate of $200 per month effective July 1, 2007 and each month thereafter until paid in full or the maintenance obligation ends, whichever occurs first." It was then a judgment payable by offset to the maintenance.
     Under the facts presented, Kevin is entitled to the rebuttable presumption that a material change in circumstances exists, as he currently pays $1,300 per month, even though the guideline amount is $921.44. We acknowledge Lydia’s argument that the parties freely negotiated a child support obligation above the guidelines, and it is unfortunate that Kevin has apparently had a change of heart about his bargain. See Pursley v. Pursley, 144 S.W.3d 820, 825-26 (Ky. 2004). However, it is clear that the court is not bound by the parties’ agreement as to child support. KRS 403.180(2); Tilley, 947 S.W.2d at 65. Furthermore, the court is vested with the power to modify child support when the statutory factors are satisfied. KRS 403.213(1). Although Lydia argues otherwise, we find no abuse of the family court’s discretion when it reduced Kevin’s child support consistent with the child support guidelines. Snow v. Snow, 24 S.W.3d 668, 672 (Ky.App. 2000).
 
 
Hoofring v. Fite, No. 2007-CA-001466-ME (Ky. App. 3/28/2008) (Ky. App., 2008)
    Hoofring’s reliance on res judicata is misplaced. KRS 403.180 permits parties to a dissolution action to enter into a written separation agreement addressing the issues of property, child custody, child support and visitation. While the parties may address child support in such an agreement, the terms regarding support are not binding on the trial court. KRS 403.180(2). KRS 403.180(6) prohibits any attempt to limit or preclude modification of agreements concerning child support, custody or visitation. Nevertheless, Hoofring urges this Court to interpret the statute as applying only to separation agreements filed as part of a dissolution of marriage action. He argues that the agreed order at issue herein falls outside the purview and constraints of KRS 403.180, and is thus binding upon the parties. We disagree.
    Tilley v. Tilley, 947 S.W.2d 63 (Ky. App. 1997), a panel of this Court concluded that the trial court retained control over child custody, support, and visitation and is not bound by the parties’ agreements in such matters. Further, in rejecting the appellant’s argument that the support statutes apply only to separation agreements, the Court noted that "KRS 403.213 provides a rebuttable presumption which is applicable to all proceedings to modify child support." Id. at 65 (Emphasis in original)(Citing Weigand v. Weigand, 862 S.W.2d 336, 337 (Ky. App. 1993).
        Similarly, as noted by the Supreme Court in Berry v. CFC ex rel. Howard, 998 S.W.2d 464, 468 (Ky. 1999), KRS 403.180 authorizes the Court to modify provisions of any agreement which pertain to custody, visitation and child support. The parties cannot prevent the court from modifying terms of their agreement. (Citation omitted). The provision of the 1993 order which attempts to protect the father in the event future support should be established is unconscionable and contrary to public policy . . . .
        Clearly, to construe the February 2005 agreed order as a waiver of Fite’s right to seek child support would be unconscionable and against public policy.
        Nevertheless, we agree with the family court that the February 2005 agreed order is enforceable. Appellant seeks to characterize the family court’s most recent order as partially vacating the 2005 agreed order. As such, Hoofring argues that the family court erred by selectively enforcing only certain provisions of the agreed order. We are of the opinion, however, that the family court did nothing more than properly exercise its discretion to modify Hoofring’s child support obligation. The other provisions of the agreed order, including Hoofring’s waiver of any right to payment by Fite for her past arrearage, is valid and enforceable.
 
Poppe v. Poppe, No. 2007-CA-000848-MR (Ky. App. 7/18/2008) (Ky. App., 2008)
  Ed next contends the trial court erred by finding that under the terms of the settlement agreement, it could modify his maintenance obligation based on a lesser standard than that imposed by KRS 403.250. We disagree.
        KRS 403.250(1) states, in pertinent part, that "[e]xcept as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." KRS 403.180(6) in turn provides: "[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. Otherwise, terms of a separation agreement are automatically modified by modification of the decree."
 
Mobley v. Mobley, No. 2007-CA-000561-MR (Ky. App. 3/27/2009) (Ky. App., 2009)
   An assessment of the record reveals that the parties’ own agreement controls the division of Kenneth’s retirement account. KRS 403.180 demonstrates that the parties’ agreement can control their rights during the dissolution of marriage. KRS 403.180(2) provides that the terms of the agreement are binding on the court unless it finds that the agreement is unconscionable. Additionally, KRS 403.180(5) states that the terms of an agreement are enforceable both as a contract and as a judgment. A family court’s reasonable interpretation of a separation agreement will be affirmed. See Hollingsworth v. Hollingsworth, 798 S.W.2d 145 (Ky. App. 1990).
        In the present case, the Property Settlement, Child Custody, and Child Support Agreement incorporated by the Decree of Dissolution provided that Dora would receive one-half of the value of Kenneth’s employer retirement funds upon his retirement as valued in 1999. Thus, it is evident that this meant she would receive one-half of whatever Kenneth received upon retirement, as valued in 1999. It would be an error for this court to read anything more into this agreement. The agreement did not specify that Dora would be entitled to only half of Kenneth’s individual contribution to his retirement fund. The agreement also did not specify that Dora would only be entitled to half of Kenneth’s members’ contribution account, as defined by KRS 61.575.
 
Shackelford v. Shackelford, No. 2006-CA-000421-MR (Ky. App. 2/22/2008) (Ky. App., 2008)
  To repeat, a PSA incorporated into a Decree of Dissolution is an enforceable contract which the family court may not disturb unless the contract is unconscionable. Pursley at 826. See also KRS 403.180(2). A court may not find an agreement to be unconscionable absent some showing of fraud, undue influence, overreaching or manifest unfairness. Pursley, supra, note 3, at 826. Jesse, as the party claiming that a separation agreement is unconscionable, has the burden of proving the agreement is manifestly unfair. Peterson v. Peterson, 583 S.W.2d 707, 711 (Ky.App. 1979). Jesse and June agreed to share equally the uninsured medical costs. The lack of a timeline and procedure to exchange bills does not rise to the level of fraud, undue influence, overreaching or manifest unfairness.
        Once again, we must give great deference to the trial court. In cases of this nature, the trial court is in the best position to evaluate the circumstances surrounding the Agreement. The trial court found Jesse was obligated to pay his portion of the uninsured medical costs and that the provision was not "manifestly unfair and unreasonable." We hold that the trial court’s findings were not clearly erroneous, and therefore, this provision of the Shackelfords’ Agreement is enforceable.
 
Castle v. Castle, 266 S.W.3d 245 (Ky. App., 2008)
   Debora Castle appeals an order of the Greenup Circuit Court terminating her maintenance due to cohabitation with a non-relative. After careful review, we affirm.
   Modification of an open-ended maintenance award is governed by KRS 403.250(1), which states:
        [e]xcept as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
        KRS 403.250(1) also provides that an open-ended maintenance award may be modified either upon a continuing and substantial change in circumstances making the terms unconscionable or under the provisions of KRS 403.180(6). KRS 403.180(6) provides that a decree may "expressly preclude or limit modification of terms if the separation agreement so provides." Thus, pursuant to a separation agreement, the parties may define the terms by which an open-ended maintenance award may be modified.
        Therefore, an open-ended maintenance award may be modified by only two methods: (1) agreement of the parties pursuant to a separation agreement, or (2) changed circumstances so substantial and continuing as to make the terms of the award unconscionable. In this case there is no agreement as maintenance was awarded pursuant to recommendation of the Domestic Relations Commissioner. Thus, the only issue on appeal is whether the circuit court could modify the maintenance award under KRS 403.250(1).
   At first blush, the cohabitation restriction in the maintenance award of February 26, 2007, appears to be in contravention of KRS 403.250(1) on its face. See Massey v. Massey, 220 S.W.3d 700 (Ky. App.2006). However, when this issue was brought before the circuit court on May 8, 2007, based upon a motion to modify maintenance, the circuit court considered the cohabitation issue under the unconscionability provisions of KRS 403.250(1). The circuit court made a specific evidentiary finding that Debora’s cohabitation relationship was inequitable and specifically found the existence of changed circumstances sufficient to make the payment of maintenance unconscionable. See Combs v. Combs, 787 S.W.2d 260 (Ky.1990). While the cohabitation restriction itself may have been unenforceable absent an agreement between the parties, the circuit court still made sufficient findings to warrant the termination of maintenance under KRS 403.250.
 
Ritchie v. Ritchie, No. 2007-CA-001290-MR (Ky. App. 8/15/2008) (Ky. App., 2008)
  If the analysis ended here, Williams would likely prevail since the issue of unconscionability was not raised by Ritchie nor expressly recognized by the trial court in its order modifying the status of the dependency exemption. A panel of this Court has previously held, however, that the trial court is not bound by terms of a separation agreement where findings of the court clearly disclose that it considered the agreement unconscionable although it did not specifically so find. Jackson v. Jackson, 571 S.W.2d 90 (Ky. App. 1978). That is to say, an implicit finding of Unconscionability is sufficient to satisfy KRS 403.180(2). "While the use of the specific word `unconscionable’ would be preferable, the wording of the Divorce Commissioner’s Findings and Recommendations in this case substantially complies with the requirements of KRS 403.180 as to a finding of Unconscionability." Id. The term unconscionable has been defined as "manifestly unfair or inequitable." Wilhoit v. Wilhoit, 506 S.W.2d 511 (Ky. 1974).
        In the matter at bar, Ritchie was bound by the separation agreement to pay $175 per month in child support.1 On April 24, 2007, an order of the Perry Circuit Court raised that obligation to $772.77 per month. This modification represented a more than four-fold increase in Ritchie’s child support obligation and was the apparent basis of the circuit court’s finding of a change in circumstances justifying the dependency exemption modification. Though not expressly stated in terms of unconscionability, we believe that given the notable increase in the child support obligation, the finding of unconscionability was implicit in the circuit court’s finding. Since Jackson recognizes an implicit finding of unconscionability as satisfying KRS 403.180(2), we find no error on this issue. This conclusion is bolstered by the requirement that the exemption must be allocated to maximize the amount available for the care of the dependent, Hart v. Hart, 774 S.W.2d 455 (Ky. App. 1989), as the record indicates that Ritchie earns about 68% of the parties’ combined income.
        For the foregoing reasons, we affirm the order of the Perry Circuit Court.
 
Jones v. Jones, No. 2006-CA-001534-MR (Ky. App., 2007)
  The Calloway Court affirmed the trial court’s decision and held [t]he trial court relied on  Peirick v. Peirick, 641 S.W.2d 195 (Mo. App. 1982) and In Re Marriage of Chambers, Colo. App., 657 P.2d 458 (1982), which both involve statutes identical to KRS 403.180, in finding that an oral agreement which is dictated to a court reporter at a scheduled deposition, subsequently transcribed, and then in its transcribed form made a part of the clerk’s record, satisfies the requirement of KRS 403.180 that property settlement agreements be "written." We fully agree with this proposition and with the rationale of the courts which have adopted it.     KRS 403.180 merely states that parties "may enter into a written" agreement. The language of the statute does not, however, undertake to describe a permissible or acceptable form for such agreements. That being so, we fail to perceive that an oral agreement dictated to a court reporter, which is then subsequently transcribed and made a part of the clerk’s record, does not satisfy the requirement of KRS 403.180 that the agreement be "written." As noted by the Missouri court in Peirick, supra at 196, quoting Hansen v. Ryan, 186 S.W.2d 595, 600 (Mo. 1945):
 
McCawley v. Ellis, No. 2007-CA-001355-ME (Ky. App. 3/21/2008) (Ky. App., 2008)
    The June 2005 agreed order provided that child support was controlled by the parties’ previous agreement, and that "[a]ny motion to change must be based on change in economics of parties, not based on a claim of this schedule of time sharing." However, KRS 403.180(6) specifically exempts "terms concerning the support, custody, or visitation of children" from those which a separation agreement may expressly preclude or limit from modification, and it provides that "terms of a separation agreement are automatically modified by modification of the [dissolution] decree." Although KRS 403.180 addresses separation agreements rather than postdissolution agreements, arguably the same considerations apply to both predissolution separation agreements and postdissolution agreements.
        In any event, orders relating to child support, unlike final orders in other types of proceedings, remain subject to modification by the trial court as evidenced by the express modification provisions set out in KRS 403.213. By seeking the recalculation and modification of child support under the Kentucky Child Support Guidelines because of changes in "the parties, incomes and child care obligations[,]" McCawley clearly waived any right to subsequently object to the court’s consideration anew, on its own accord, of all matters relevant to child support including those relating to the parties’ time sharing arrangements. See Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky.App. 1997); Giacalone v. Giacalone, 876 S.W.2d 616, 620 (Ky.App. 1994). Hence, the trial court did not abuse its discretion by considering such matters.
 
McNees v. McNees, No. 2007-CA-000617-MR (Ky. App. 11/14/2008) (Ky. App., 2008)
  This purported agreement was, in effect, a separation agreement under KRS 403.180(1) which provides as follows:
        To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may 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.
        (Emphasis supplied.)
        "KRS 403.180 requires separation agreements be in writing and signed by the parties." Bratcher v. Bratcher, 26 S.W.3d 797, 799 (Ky. App. 2000) citing Carter v. Carter, 656 S.W.2d 257, 258 (Ky. App. 1983). In Bratcher, we held that an oral agreement that was "neither written nor signed by the parties . . . was not a valid separation agreement under the requirements of KRS 403.180." 26 S.W.3d at 799. The trial court did not err in refusing to order Terry to pay maintenance arrears to Sherry, because their agreement was unwritten and therefore unenforceable
 
Murray v. Murray, No. 2007-CA-000347-MR (Ky. App. 7/18/2008) (Ky. App., 2008)
   Kentucky Revised Statutes (KRS) 403.180(1) permits spouses to enter into a written separation agreement addressing the "disposition of any property owned by either of them, and custody, support and visitation of their children." Except as to terms of child custody, support and visitation, the trial court is bound by the terms of the parties’ agreement unless the court finds, after considering "the economic circumstances of the parties and any other relevant evidence produced by" them, that the agreement is unconscionable. KRS 403.180(2). The term "unconscionable" is defined as "manifestly unfair or inequitable." Shraberg v.Shraberg, 939 S.W.2d 330, 333 (Ky. 1997) (quoting McGowan v. McGowan, 663 S.W.2d 219, 222 (Ky.App. 1983)); Wilhoit v. Wilhoit, 506 S.W.2d 511, 513 (Ky. 1974).
        Here, as noted above, Rick asserted that his OCD caused him to become incompetent to commit to the terms set out in the agreement. Further, he asserted that the agreement was "unfair, unconscionable and inequitable[,]" particularly in regard to child support and the division of the value of the marital residence. Rick adduced evidence regarding OCD and its impact on his decision-making abilities, and Coleman testified by deposition regarding both OCD and Rick’s subsequent description of the settlement hearing.
   Further, the parties’ agreement as to the division of residential equity must be viewed in light of the division of other marital property. Although minimal evidence was provided as to property values, it appears from the parties’ own disclosures and the statements made below that the agreement provided for Rick to receive substantial amounts of marital property, including two businesses, vehicles, and monetary accounts, in exchange for his nonmarital and marital interests in the residence. Again, we cannot say that the trial court erred by failing to set aside the settlement agreement as unconscionable.
 
Tri v. Tri, No. 2008-CA-000043-MR (Ky. App. 3/27/2009) (Ky. App., 2009)
  On appeal, Thomas argues that the family court erred by making a grossly disproportionate distribution of the couple’s marital estate — particularly in light of the separation agreement that had been accepted by the court years earlier as well as Rebecca’s own admissions. He noted that during the family court’s evidentiary hearing, Rebecca had acknowledged that the bulk of the funds used to buy the real property and to build the marital home and its improvements were derived from Thomas’s separate, pre-marital estate. We agree with Thomas that the court erred in disregarding the property settlement agreement of the parties.
        By enacting the provisions of Kentucky Revised Statute(s) (KRS) 403.180, our General Assembly set forth the characteristics of valid property settlement agreements. It endeavored to encourage the parties involved in a divorce to settle their disputes amicably. KRS 403.180 provides that the terms of the parties’ separation agreement (except those pertaining to the care and control of minor children) "are binding upon the court unless it finds, after considering the economic circumstances of the parties, that the separation agreement is unconscionable." The statute also provides that if they are incorporated into a court’s decree, the terms of the parties’ agreement are enforceable both as a judgment and as a contract.
   Accordingly, we vacate and remand with direction that the family court enter an order distributing the proceeds of the sale of the house (after credit to Thomas for its maintenance) in accordance with the parties’ separation agreement as incorporated into the court’s decree of dissolution.
 
Konrad v. Konrad, No. 2007-CA-001402-MR (Ky. App. 12/5/2008) (Ky. App., 2008)
   Except as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
        Because it is the intent of the statute that maintenance awards remain stable, the movant must demonstrate compelling evidence to support the requested modification. McKenzie v. McKenzie, 502 S.W.2d 657 (Ky. 1973). "The determination of questions regarding maintenance is a matter which has traditionally been delegated to the sound and broad discretion of the trial court, and an appellate court will not disturb the trial court absent an abuse of discretion." Barbarine v. Barbarine, 925 S.W.2d 831, 832 (Ky.App. 1996).
 
Yarber-Nowlin v. Nowlin, No. 2007-CA-002290-MR (Ky. App. 9/5/2008) (Ky. App., 2008)
    Michelle now appeals that determination, asserting that the Family Court’s interpretation of the word tuition as it was used in the Separation Agreement was contrary both to the intent of the parties and the definition of the word tuition as it is commonly understood and used. She now seeks a determination from this Court that the parties share equally in their daughter’s college expenses. David maintains that he is only responsible for the two items in the bill which expressly include the word tuition.
        Under KRS 403.180(5), terms of a separation agreement incorporated into a decree are enforceable as contract terms. Interpretation of a contract is a matter of law to be decided by the court, and thus the standard of review of such a decision is de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998). In the instant matter, at issue is the proper interpretation of the provision pertaining to tuition in the settlement agreement between the parties.
        Although we do not find any Kentucky case law which speaks precisely to the matters raised herein, we do note that there are several statutes which speak to the definition of tuition for higher education. We review those statutes for guidance in this matter.
        KRS 164A.305 sets forth the definition of tuition as used in the Kentucky Educational Savings Plan Trust. That statute establishes that "tuition" means the quarterly or semester charges imposed to attend an institution of higher education and required as a condition of enrollment. Likewise, KRS 164A.700, defines tuition as that term is used in the Commonwealth Postsecondary Education Prepaid Tuition Trust Fund as the prevailing tuition and all mandatory fees charged for a qualified beneficiary to attend an eligible educational institution. Finally, in defining tuition for purposes of the National Guard Tuition Program, KRS 164.516 describes it as the total semester, quarter, or classroom hour cost of instruction and matriculation and other fees required of the student that are published in the catalog of the educational institution.
        Having considered these statutory definitions, we note that they all determine tuition to include those costs which are mandatory for a student to receive instruction once present in the classroom. Therefore, we believe the term "tuition", as it is generally used and understood, to be defined as all expenses imposed by the educational institution as a condition of full-time enrollment in an undergraduate program for an academic year.
        Having so found, we affirm the trial court as to its finding the two items to be tuition, but reverse and remand this matter to the trial court with instructions to review the other various costs and fees assessed by ASU for Cory’s education in light of the definitions set forth above.
 
[U] Peyton v. Peyton, No. 2004-CA-000544-MR (Ky.App. 04/01/2005)
….although private settlement agreements are encouraged, KRS 403.180 also provides that they may be set aside if the court finds them unconscionable
 
[U] Bale v. Bale, No. 2004-CA-000203-MR (Ky.App. 03/11/2005)
Under KRS 403.180(5), terms of a separation agreement incorporated into a decree are enforceable as contract terms. Interpretation of a contract is a matter of law to be decided by the court, and thus the standard of review of such a decision would be de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App. 1998).
 
[U] Stapleton v. Stapleton, No. 2003-CA-002441-MR (Ky.App. 03/11/2005
In a petition for dissolution of marriage, "the parties may enter into a written separation agreement containing provisions for maintenance of either of them…" KRS 403.180(1). And the terms of the agreement are binding on the court unless it finds that the terms are unconscionable. See KRS 403.180(2).
 
[U] Holman v. Holman, No. 2003-CA-001727-MR (Ky.App. 07/09/2004)
KRS 403.180(2) provides that the terms of a separation agreement, "except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, … that the separation agreement is unconscionable." "Unconscionable" has been defined as "manifestly unfair or inequitable." Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511, 513 (1974). A separation agreement which was originally determined not to be unconscionable may later be modified if due a change in circumstances the agreement has become unconscionable. Peterson v. Peterson, Ky. App., 583 S.W.2d 707 (1979). However, the party challenging the agreement as unconscionable has the burden of proof. Peterson, at 711.
[U] Mickler v. Mickler, No. 2003-CA-000822-MR (Ky.App. 04/02/2004)
A trial court’s valuation of marital property in a divorce action will not be disturbed on appeal unless it is clearly contrary to the weight of the evidence. Underwood v. Underwood, Ky. App., 836 S.W.2d 439 (1992), overruled on other grounds, Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513 (2001); Clark v. Clark, Ky. App., 782 S.W.2d 56 (1990). Kentucky courts have not specifically adopted any certain approach in valuing businesses in domestic cases. Clark, 782 S.W.2d at 59. It is, however, well established that the goodwill contained in a business is a factor to be considered in arriving at the value of the business and thus is part of that marital asset to be divided between the parties. Id.; Heller v. Heller, Ky. App., 672 S.W.2d 945, 947 (1984)
Wheeler v. Wheeler, No. 2002-CA-002440-MR (Ky.App. 04/02/2004)
Pursuant to KRS 403.180(6), the terms in a settlement agreement related to maintenance are subject to modification unless the agreement expressly prohibits modification. Further, KRS 403.250(1) specifically states that "the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable."
 
[U] Russell v. Robbins, No. 2003-CA-002645-MR (Ky.App. 12/17/2004)
 DISSENT: Property in a divorce may be divided one of two ways. Under KRS 403.190, the court may dispose of property by assigning to each spouse their respective non-marital property and divide the marital property in just proportions. No such disposition of property occurred in this case. The other method of property division is by written agreement between the parties, unless the court finds the agreement to be unconscionable. See KRS 403.180.
 
[U] Anderson v. Anderson, No. 2002-CA-001752-MR (Ky.App. 10/01/2004)
 Under KRS 403.180 Jeff and Kitty were free to enter into a written agreement to divide their property and allocate debts.
 
[U] Davidson v. Davidson, No. 2003-CA-000054-MR (Ky.App. 08/06/2004)


the provisions of KRS 403.180(2) require a trial court to consider "the economic circumstances of the parties and any other relevant evidence produced by theparties" in determining whether a separation agreement is unconscionable. In light of this provision, Randall contends that the court was required to conduct an evidentiary hearing following his post-decree motions. […] The provisions of KRS 403.180 relate to a court’s initial assessment of a separation agreement. The sections that follow address the incorporation of an approved agreement into the decree of dissolution and the remedies available for enforcement of the terms of the agreement. Furthermore, KRS 403.180(6) provides that "the decree may expressly preclude or limit modification of terms if the separation agreement so provides." Thus, Randall was not entitled to an evidentiary hearing concerning his post-decree motions based on the provisions of KRS 403.180.
 
Pursley v. Pursley, 144 S.W.3d 820 (Ky. 09/23/2004) 
The Guidelines do not constitute the maximum support that a parent may agree to provide for his or her children. Although, as a rule, it is not in the best interest of the children when their parents agree to an amount of child support below the Guidelines, no one can convincingly argue that the best interests of the children are not served when their parents agree to support in excess of the amount established by the Guidelines. Although a court is not bound by such agreements, when parents wish to provide or agree to provide more support than required by law, the Guidelines should not act as a barrier. Furthermore, when the trial court reviews the parties’ agreement that requires child support in excess of the Guidelines, it is only required to find that the parents, "having demonstrated knowledge of the amount of child support established by the [Guidelines], have agreed to child support" in excess of the Guidelines
Messer v. Messer, 134 S.W.3d 570 (Ky. 05/20/2004)
Our holding moots the parties’ dispute as to whether the maintenance obligation in the case sub judice was established by an "agree[ment] in writing." See Calloway v. Calloway, Ky. App., 707 S.W.2d 789, 791 (1986) (agreement dictated to court reporter satisfied requirement of KRS 403.180(1) that separation agreement be "written").
[U] Scott v. Volentine, No. 2002-CA-001998-MR (Ky.App. 02/27/2004)

KRS
403.180(2) specifically provides that written agreements with respect to custody, support, and visitation of children are not binding upon the circuit court. Tilley v. Tilley, Ky. App., 947 S.W.2d 63, 65 (1997).
 
[U] Ramey v. Ramey, No. 2003-CA-000836-MR (Ky.App. 09/03/2004)
KRS 403.180 does not define the term "unconscionable". The issue has been addressed judicially, however, most notably by the Kentucky Supreme Court in the case of Shraberg v. Shraberg, Ky., 939 S.W.2d 330 (1997). In defining unconscionability in the context of separation agreements, the Court stated that "the law has established a measure of protection for parties from their own irresponsible agreements." Id. at 333. Citing with approval McGowan v. McGowan, Ky.App., 663 S.W.2d 219 (1983), the Shraberg Court stated that "a separation agreement is unconscionable and must be set aside if the court determines that it is manifestly unfair and unreasonable." Id. It went on to state that "fraud, deceit, mental instability or the like, are not required to obtain invalidation of a separation agreement. What is required is a showing of fundamental unfairness as determined after considering the economic circumstances of the parties and any other relevant evidence . . . ." Id.
 
[U] Sherwin v. Sherwin, No. 2003-CA-002156-MR (Ky.App. 11/12/2004)
we fail to perceive that an oral agreement dictated to a court reporter, which is then subsequently transcribed and made a part of the clerk’s record, does not satisfy the requirement of KRS 403.180 that the agreement be ‘written’").
[U] Jarvio v. McCarte, No. 2001-CA-002043-MR (Ky.App. 08/15/2003) 
(1) Except as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.
 
[U] Dehaven v. Dehaven, No. 2002-CA-001089-MR (Ky.App. 08/08/2003)
Loretta argues that the circuit court failed to make a specific finding that the resulting agreement is not unconscionable. However, this argument misstates the law regarding unconscionability. KRS 403.180(2) provides that the terms of a separation agreement, except those relating to children, are binding on a court unless the court finds that the agreement is unconscionable. While a court may undertake an unconscionability analysis on its own initiative or at the request of either party, it is not required to do so in every case.
 
[U] Hazlett v. Hazlett, No. 2001-CA-002394-MR (Ky.App. 08/22/2003)
Albers argues that the trial court effectively set aside portions of the agreed property settlement without first making a finding that the agreement was unconscionable, as is required under KRS 403.180(2). After considering the terms of the couple’s agreed property settlement, we affirm in part and reverse and remand in part.
 
Fenwick v. Fenwick, No. 1999-SC-1055-DG (Ky. 09/18/2003)
KRS 403.180(1) ("To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may 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.").
 
[U] Hutton v. Hutton, No. 2002-CA-000294-MR (Ky.App. 03/21/2003) 
Of course, a trial court has the discretion to deviate from the guidelines when it finds that the parties have entered into an agreement concerning child support and that agreement is not unconscionable. However, a trial court still retains jurisdiction over child custody, support and visitation, and it is not bound by the parties’ agreement in those areas. Moreover, a separation agreement may not preclude or limit modification of child support.

 

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