Homer, P.j., and Lytton, J., concur.
The opinion of the court was delivered by: Justice Breslin
IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT
Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois
Honorable Martin E. Conway, Jr. Judge, Presiding
Does section 706.1(G)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/706.1(G)(1)(West 1996)) impose a $100- per-day penalty upon an employer which, after receiving an order of withholding, fails to withhold child support payments from its employee's paycheck? We hold that it does not; therefore, we affirm the trial court's decision.
A judgment of dissolution was entered dissolving the marriage of Suzann and Thomas Vrombaut. In accordance with the judgment, an order of income withholding was served on the defendant, Norcross Safety Products, L.L.C. (Norcross), in February of 1996. According to the order Norcross was to withhold $90 per week from Thomas's income for child support. The order also required that the funds be mailed to the clerk of the circuit court within 10 days of withholding.
Once in October of 1996, and twice in January of 1997, Norcross failed to withhold the child support payments from Thomas's employment check. Suzann filed a civil suit pursuant to the employer penalty provision of section 706.1(G)(1) of the Act (750 ILCS 5/706.1(G)(1)(West 1996)), seeking damages in the amount of $100 per day for each late payment. During the proceedings, the parties stipulated that Norcross failed to withhold the income.
In October 1997, Norcross moved to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2- 619(a)(9)(West 1996)). Norcross alleged that the language of section 706.1(G)(1) only imposed a penalty for the failure to tender payment of a withholding to the clerk, not for failing to withhold the income initially. The trial court agreed, finding that section 706.1(G)(1) of the Act did not penalize an employer that failed to withhold the payment. The court dismissed Suzann's complaint with prejudice and she appeals.
In reviewing the dismissal of an action pursuant section 2-619, this court must accept all facts properly pled as true. Zielinski v. Miller, 277 Ill. App. 3d 735, 660 N.E.2d 1289 (1995). Absent an issue of fact, we review the trial court's decision de novo to determine whether the dismissal was proper as a matter of law. Garcia v. ...