Fifth District Appellate Court affirms ruling on child support and maintenance

By Sara McCleary | Sep 27, 2017

MOUNT VERNON – A decision concerning child support and maintenance payments has been affirmed at the Fifth District Appellate Court.

MOUNT VERNON – A decision concerning child support and maintenance payments has been affirmed at the Fifth District Appellate Court.

Angela Volluz had filed her petition in St. Clair County Circuit Court seeking attorney fees and a rule to show cause. The circuit court denied those petitions and granted judgment in favor of Angela’s ex-husband Timothy Volluz on his motion to modify child support and maintenance payments. That decision was affirmed by the appellate court in a decision filed Aug. 29.

According to the court's Aug. 29 order, the couple married in August 1991 and Angela filed for divorce 19 years later in January 2010. At the time the marriage was dissolved, the pair agreed on Angela having custody of their daughter and divided their property. Angela received the couple’s savings account, and the court determined she would receive $1,700 per month from Timothy, $500 as maintenance and the rest as child support, the order states.

Over the next three years, the couple was in and out of court as Timothy filed motions to modify his child support and maintenance payments due to fluctuations in his employment and income.

Upon his second motion in June 2013, the court heard that Timothy’s income had been reduced and he had been drawing from his savings accounts to pay his bills and meet his obligations for child support and maintenance. 

According to the appellate court’s opinion, written by Justice David K. Overstreet with Justices Thomas M. Welch and John B. Barberis Jr. concurring, “From June 2012 to May 2014, the collective balance of the [savings] accounts had gone from $68,722.31 to $47,150.87. Additionally, from April 2012 to May 2014, the balance of Timothy’s checking account had fallen from $14,896.67 to $4,272.83. Timothy asked the circuit court to reduce his child support obligation to a ‘more reasonable level’ and ‘remove the maintenance completely.’”

During that hearing, it also came to light that although Angela had found two part-time jobs, she had not searched for anything more steady since January 2013, and she had not withdrawn any money from any of her savings accounts since the divorce, the order states.

The court reduced Timothy’s maintenance payments retroactively, effectively eliminating the amount in which Timothy had fallen into arrears and denied Angela’s petition for attorney fees. A subsequent hearing on a motion to determine arrearage resulted in Timothy being credited an overpayment of child support and the termination of his maintenance obligation. 

In October 2014, Angela filed a motion to reconsider, and the circuit court denied that motion in September 2016. The following month, Angela appealed, claiming that the circuit court had failed to consider “other income” Timothy received when reducing his obligations, and therefore erred in granting his motion to modify child support and maintenance. She also argued that the court erred in denying her request for attorney fees, the order states.

The court considered several of Angela’s arguments concerning the granting of Timothy’s motion, including her claim that the court should have considered checks he allegedly received from a lawsuit settlement he’d been awarded several years earlier, and her belief that the court should have considered Timothy’s purchase of a new vehicle before agreeing to reduce his maintenance payments. She further contends that the circuit court did not adequately recognize the effect on her own potential for employment related to a hearing impairment.

Ultimately, the appellate court agreed with the conclusion of the circuit court. 

“Here, the record fully supports the circuit court’s conclusions that Timothy’s income had steadily decreased since the parties’ divorce and that Angela was better able to meet her financial needs than she had been when Judge (Zina) Cruse determined that she required additional time to obtain employment,” Overstreet wrote. “The record further supports the court’s observation that while Timothy had been removing money from his investment accounts to cover his expenses and obligations, Angela’s financial assets had ‘remained untouched since the entry of the divorce judgment.’”

Concerning Angela’s request for attorney's fees, the appellate court again agreed with the circuit court’s decision. 

“We find no abuse of discretion in the circuit court’s denial of Angela’s petition for attorney fees, either, and we note that she does not contest the court’s determination that she had the financial ability to pay them,” Overstreet wrote.

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