An employer could not be assessed the $100 per day statutory penalty for failure to withhold child support where the notice it received in 2009 was invalid as irregular on its face for failure to include the obligor father's social security number as required by statute—2012 legislation not applicable.
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Margaret J. Mullen, Judge, presiding.
Joel S. Ostrow, of Bannockburn, for appellant.
Michael D. Furlong, of Trobe, Babowice & Associates LLC, of Waukegan, for appellee.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Plaintiff, Jennifer Schultz, filed a complaint in the circuit court of Lake County, seeking to recover a $100 per day statutory penalty from defendant, Performance Lighting, Inc., pursuant to section 35 of the Income Withholding for Support Act (the Act) (750 ILCS 28/35 (West 2010)). Plaintiff's claim was based on defendant's failure to withhold sums for child support that allegedly should have been withheld from her ex-husband's paychecks. The circuit court dismissed the complaint with prejudice, finding that plaintiff's notice of withholding was not in strict compliance with the requirements of the Act for creating a valid notice. See 750 ILCS 28/20(c) (West 2010). The appellate court affirmed, rejecting plaintiff's argument that she sufficiently complied with the notice requirements so as to trigger defendant's obligation to withhold funds from her ex-husband's paychecks. 2013 IL App (2d) 120405. For the following reasons, we affirm the judgment of the appellate court.
¶ 2 BACKGROUND
¶ 3 In 2009, plaintiff filed for a dissolution of her marriage to her now ex-husband. On November 19, 2009, the circuit court entered an order that required the ex-husband to pay child support to plaintiff in the amount of $600 every two weeks. The order was prepared by plaintiff's attorney and did not include the obligor's (the ex-husband's) social security number, even though section 20(a)(3) of the Act specifically requires that "every order for support [i]nclude the obligor's Social Security Number, which the obligor shall disclose to the court." See 750 ILCS 28/20(a)(3) (West 2010). On that same day, the court also issued a "Uniform Order for Support, " which also set forth the $600 bi-weekly child support obligation. This order was also prepared by plaintiff's attorney, and it too did not include the social security number of the obligor. Additionally, it did not fill in the blank for the name of the obligor. At the time of the entry of the orders, the ex-husband worked for defendant. The uniform order for support stated that a notice to withhold income shall issue immediately and shall be served on the employer listed in the order. But no employer was actually listed in that order. The uniform order for support also stated that the employer was to make payments to the State Disbursement Unit and was required to include the obligor's name and social security number with those payments.
¶ 4 Plaintiff sought to acquire the court-ordered support by withholding from her ex- husband's wages. Plaintiff served a notice to withhold income for support on defendant and filed the notice with the circuit clerk on November 19, 2009. Plaintiff attached the notice she served on defendant, as well as the uniform order for support, to her complaint. The notice, however, did not include the ex-husband's social security number or the termination date of defendant's income-withholding obligation, even though the Act states that these items are required to be placed in the notice. See 750 ILCS 28/20(c)(9), (c)(10) (West 2010). Plaintiff also served the ex-husband's attorney in court with the notice but did not serve the ex-husband himself.
¶ 5 Plaintiff's ex-husband continued to work for defendant through May 2010. It is undisputed that defendant did not withhold any sums for support from the ex-husband's paycheck and did not forward any amounts to the State Disbursement Unit on plaintiff's behalf.
¶ 6 On November 10, 2011, plaintiff filed the instant complaint, alleging that defendant knowingly failed to pay over to the State Disbursement Unit the amounts ordered to be withheld from her ex-husband's paychecks. Plaintiff further alleged that defendant had a statutory duty to withhold and pay over to the State Disbursement Unit the ordered amounts from her ex-husband's paychecks within seven days after the pay would have been given to her ex-husband. Plaintiff alleged that under section 35 of the Act, defendant owed a duty to plaintiff to comply with the notice of withholding and that defendant breached this statutory duty, thereby triggering a penalty of $100 for each day defendant failed to pay over to the State Disbursement Unit the ordered amounts.
¶ 7 On January 24, 2012, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Defendant argued that plaintiff's notice of withholding did not comply with the statutory requirements of section 20(c) of the Act (750 ILCS 28/20(c) (West 2010)) and that plaintiff did not properly effect service on the obligor under section 20(g) of the Act (750 ILCS 28/20(g) (West 2010)). Defendant maintained that because plaintiff's notice of withholding did not comply with the statute, the notice was invalid and therefore defendant's duty to withhold and pay over a portion of her ex-husband's paychecks was never operative.
¶ 8 In response to the motion to dismiss, plaintiff argued that the omissions in the notice were minor and did not obviate defendant's obligation to withhold under section 35(a) of the Act. She further argued that because defendant was adequately informed of the amount to withhold and the obligor's name was ...