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09/26/94 MARRIAGE JOHN A. HERRICK

September 26, 1994

IN RE MARRIAGE OF JOHN A. HERRICK, PETITIONER-APPELLANT, AND GERALDINE M. HERRICK, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of McHenry County. No. 88-D-26. Honorable Thomas A. Schermerhorn, Judge, Presiding.

Inglis, McLAREN, PECCARELLI

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Petitioner, John Herrick, appeals the circuit court's order striking his motion to vacate a wage garnishment order. On appeal, he contends that the court erred in striking his motion as untimely. We reverse and remand.

Pursuant to the dissolution of the parties' marriage, the court entered an order of support on February 5, 1991. Under the terms of the order, petitioner's employer, USAIR, was required to withhold more than 25% of his net income for child support.

Respondent, Geraldine Herrick, subsequently filed a wage garnishment to recoup attorney fees due from petitioner in connection with the dissolution. On February 16, 1993, the court entered an order for garnishment requiring USAIR to deduct 15% of petitioner's gross wages.

The circuit court clerk issued a garnishment summons to USAIR with a return date of May 27, 1993. Apparently, USAIR filed its answer to the garnishment summons on or about the return date.

On October 8, 1993, petitioner filed a motion to vacate the garnishment order. The motion alleged that the second garnishment, on top of the existing support-order garnishment, would result in a net withholding in excess of the statutory maximum. Petitioner further alleged that he had no notice of the second garnishment prior to May 27.

Respondent filed a motion to strike petitioner's motion. Respondent contended that, pursuant to section 12-805 of the Code of Civil Procedure (the Code) (735 ILCS 5/12-805 (West 1992)), petitioner was required to object to the garnishment prior to the return date. Attached to the motion was a letter from petitioner's counsel to USAIR apparently demonstrating that petitioner had actual notice of the garnishment prior to May 27. Therefore, respondent contended, petitioner's "misconduct" prohibited him from filing a late objection to the garnishment.

The court found that the allegations of the motion to strike were true, dismissed petitioner's motion, and entered a turnover order requiring USAIR to pay the withheld funds to respondent. The court denied petitioner's motion to reconsider, and this timely appeal followed.

On appeal, petitioner contends that the court erred in striking as untimely his motion to vacate the garnishment. He contends that section 12-805 requires an objection to be filed before the return date only when the objection is that the funds are "exempt." According to the Code, the benefits or refunds of a pension or retirement plan are "exempt." (See 735 ILCS 5/12-804 (West 1992).) Petitioner contends that since he did not object on this basis, he was not required to file his motion prior to the return date. Therefore, the trial court erred in finding that it was untimely, regardless of whether petitioner had actual notice of the garnishment at an earlier date.

Petitioner does not contest the initial order for child support withholding. He contends, however, that the second garnishment may not be stacked on top of the support-order withholding if the total amount withheld exceeds the statutory maximum.

The Code provides a thorough, if complex, means of garnishing the wages of a judgment debtor. (735 ILCS 5/12-801 et seq. (West 1992).) A judgment creditor begins the process by filing an affidavit stating that he believes the garnishee is indebted to the judgment debtor for wages due or to become due, and written interrogatories to be answered by the employer-garnishee with respect to the indebtedness. The circuit clerk then issues a summons to the employer. 735 ILCS 5/12-805(a) (West 1992).

Under Illinois law, the maximum amount of wages subject to deduction is (1) 15% of the gross wages for each week, or (2) the amount by which disposable earnings for a week exceed 45 times the Federal minimum hourly wage. (735 ILCS 5/12-803 (West 1992).) In addition, Federal law preempts State law to the extent that State law would permit recovery in excess of 25% of an individual's disposable earnings. ( Commonwealth Edison v. Denson (1986), 144 Ill. App. 3d 383, 386, 98 Ill. Dec. 859, 494 N.E.2d 1186; 15 U.S.C. ยง 1673 (1993).) The employer has the burden to determine the amount of wages which may properly be withheld, to deduct that amount from the employee's earnings, and to pay the employee the balance. (735 ILCS 5/12-808 (West 1992); see generally Stotland, Enforcement of Judgments, in Creditors' Rights in ...


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