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06/19/95 BRENDA L. DUNAHEE v. CHENOA WELDING &

June 19, 1995

BRENDA L. DUNAHEE, PLAINTIFF-APPELLANT,
v.
CHENOA WELDING & FABRICATION, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Livingston County. No. 94LM91. Honorable Charles H. Frank, Judge Presiding.

As Corrected July 31, 1995.

Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Concurring, Honorable Robert W. Cook, J., Specially Concurring

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Plaintiff Brenda Dunahee brought Suit against defendant Chenoa Welding and Fabrication, Inc., under section 706.1(G) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/706.1(G) (West 1994)). Plaintiff sought a penalty against defendant for its failure to send to her, on a timely basis, child support payments withheld from the wages of defendant's employee, Lawrence Feit, plaintiff's ex-husband. The trial court rendered judgment for defendant, and plaintiff now appeals. We reverse and remand.

Plaintiff brought suit seeking a penalty against defendant for failure to comply with section 706.1(G) of the Act, which requires an employer to forward child support withheld from an employee's wages within 10 days of paying the employee. At trial, plaintiff called Kathy Wochner, secretary and treasurer of defendant. She was in charge of paying employees. She recalled receiving a certified notice in March 1994 requiring defendant to withhold child support payments from its employee Feit's wages. She was already withholding his wages at the time. The order of withholding stated the withheld amounts must be paid within three business days, but she did not read it. She withheld Feit's wages every week, but would keep it for a period of time before forwarding it to the clerk of the court.

Defendant has only five employees: herself, her husband, her son, and two other employees. This was the first order of withholding with which she had ever been involved. She started withholding Feit's pay in December 1993, after he requested she do so. There was no court order in effect at that time. She did not know the procedure for withholding, so she called the clerk of the court's office to find out how to do so. The court order of withholding arrived in March 1994. She continued withholding the same as before.

Plaintiff testified that she received her child support checks in groups of three or four at a time prior to July 1994. She saw Wochner in a grocery store checkout line. Plaintiff asked Wochner:

"if she knew the procedure and that I wasn't working two jobs because I thought it was a good time, it's because I need to support three kids and I need that money. And I said is there a reason why, and she said well, it's just easier and it saves on stamps, and she says I'm sorry, I didn't know the procedure, I'll get the checks right in the mail."

When the checks still took another three to four weeks to arrive, plaintiff sought legal help. She had no other contact with defendant. Although she knew defendant was not following the correct procedure after the order of withholding was entered, she did not contact it, but told Feit about the delays. She had received all the support which was due.

Plaintiff admitted, without objection, copies of checks sent by defendant to the clerk of the court.

Testifying for the defense, Wochner resumed the stand. When plaintiff talked to her in the grocery store:

"She asked me if I took money out of [Feit's] check every week, and I said yes I do and [Feit] had been having some problems at that time, or something, he wasn't coming to work on a regular basis, and there were some weeks that I took it out and he didn't have any money left, but I did, I did take it out every week, and it was certainly (unclear) But anyway, she told me it would be in [Feit's] best interest if I got those checks to her every week."

Wochner believed plaintiff wanted her to get involved in the domestic dispute, which she makes a practice of not doing. Defendant's employee, Feit, ...


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