RITCHIE (CECILIA ANN) VS. RITCHIE (SHELBY EUGENE)Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CECILIA ANN RITCHIE
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 04-CI-00232
SHELBY EUGENE RITCHIE
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES.
STUMBO, JUDGE: Cecilia Ann Ritchie (now Williams) appeals from an order of
the Perry Circuit Court sustaining the motion of Shelby Eugene Ritchie
(hereinafter “Ritchie”) to modify a final decree of dissolution. The court found a
material change in circumstances sufficient to warrant a modification of the child
dependency exemption status. Williams contends that the modification improperly
altered the terms of the parties’ separation agreement and therefore was improper.
For the reasons stated below, we affirm the order on appeal.
On April 2, 1999, Williams and Ritchie were married in Perry County,
Kentucky. The marriage produced one child, namely Rayven James Ritchie. The
parties separated on December 31, 2003, and Williams filed a petition for
dissolution of marriage on April 15, 2004. At the time the petition was filed,
Williams was 35 years old and was employed by the Perry County child support
office. Ritchie was 27 years old and employed by Breathitt Mechanical.
The parties entered into a separation agreement which was signed and
entered into the record on April 15, 2004. Paragraph 3.3 of that agreement stated
that Williams was entitled to claim the dependent child for income tax purposes. It
is also notable that Williams received primary custody of the child. Numerous
other matters were addressed which are not relevant to the instant appeal. The
separation was incorporated by reference into the decree of dissolution, which was
rendered on April 22, 2004.
On April 13, 2007, Ritchie filed a motion to modify the decree of
dissolution. Specifically, he sought an order allowing him to claim the minor child
as a dependant every other year for income tax purposes. As a basis of the motion,
Ritchie noted that he was about to be subject to a significant increase in the amount
of child support he was required to pay, and that this increase should entitle him to
the income tax dependency deduction every other year. Williams responded that
she was entitled to the exemption under the general rule that a custodial parent
may exercise the exemption absent a written waiver of that right.
The matter proceeded in Perry Circuit Court, whereupon the court
rendered an order on June 5, 2007, sustaining Ritchie’s motion to modify the tax
exemption benefits. As a basis for granting Ritchie the exemption every other
year, the court found a material change in circumstances sufficient to justify the
change. This appeal followed.
The sole issue now before us is Williams’ contention that the circuit
court erred in sustaining Ritchie’s motion to grant him the dependency exemption
every other year. Williams argues that since the exemption was originally
memorialized in the separation agreement - which the court adopted by reference
as part of the decree of dissolution - any change to the agreement must be based on
a finding of unconscionability. She notes that Ritchie did not raise nor argue
unconscionability as a basis for the sought modification, nor did the circuit court
rely on unconscionability in support of its ruling. As such, she contends that the
order on appeal must be reversed, or in the alternative remanded for a
determination of whether the separation agreement has become unconscionable.
Having closely examined the record, the argument and the law, we
find no error in the circuit court’s determination that Ritchie is entitled to exercise
the dependency exemption every other year. Williams correctly states that the
terms of a separation agreement are binding on the trial court absent a finding of
unconscionability. KRS 403.180(2) states that,
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.
This concept has been acknowledged in the case law. See generally, Rupley v.
Rupley, 776 S.W.2d 849 (Ky. App. 1989); Peterson v. Peterson, 583 S.W.2d 707
(Ky. App. 1979). Since even reconciliation and resumption of the marital relation
does not void the separation agreement, Ray v. Ray's Executrix, 60 S.W.2d 935
(Ky. 1933), we are persuaded that it also survives incorporation into the decree of
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’
For the foregoing reasons, we affirm the order of the Perry Circuit
Ritchie’s appellate brief incorrectly states that the initial child support obligation was $100 per
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric E. Ashley
Alison C. Wells