Court of Appeals of Illinois, First District, Third Division
In re MARRIAGE of IREN SOLOMON, Petitioner-Appellant, and RALPH SOLOMON, Respondent-Appellee. (Provident Hospital of Cook County, the County of Cook, Third-Party Respondent-Appellee)
Appeal from the Circuit Court of Cook County. No. 06 D 4568. The Honorable Leida Santiago, Judge, presiding.
FOR PETITIONER-APPELLANT: Birnbaum, Haddon, Gelfman & Arnoux, LLC, Matthew C. Arnoux, Esq., Chicago, IL.
FOR THIRD-PARTY RESPONDENT-APPELLEE: Anita Alvarez, State's Attorney, Daniel F. Gallagher, Deputy State's Attorney, Marie D. Spicuzza, Assistant State's Attorney, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Lavin specially concurred, with opinion, joined by Justice Mason.
[¶1] This appeal concerns the penalty provision in section 35 of the Income Withholding for Support Act (Withholding Act) (750 ILCS 28/35 (West 2010)), for the employer's failure to properly administer child support payments withheld from its employee's wages. As part of a marriage dissolution judgment, Ralph Solomon's employer, third-party respondent, Provident Hospital of Cook County, was ordered to deduct and pay the designated amount from Ralph's paychecks as provided in the Withholding Act. After Provident failed to timely process two child support payments, Iren Solomon filed a complaint against Provident Hospital, seeking " to determine and collect" a statutory penalty of $100-per-day for a " knowing" violation. The trial court denied her petition finding " the mistake was not a knowing violation."
[¶2] Iren claims the trial court erred because Provident failed to withhold proper child support on more than one occasion, had notice of its failure, and did not rebut the statutory presumption that it did so " knowingly." We affirm, finding that although Provident is subject to the requirements of section 35 of the Withholding Act, it did not knowingly violate the Act and, therefore, the statutory penalty was not warranted.
[¶4] Iren and Ralph Solomon divorced on June 25, 2010. Ralph was ordered to pay $2,200 per month in child support ($1,015.38 biweekly). Ralph worked at Provident during the entire proceedings and always has been paid biweekly. A uniform order for support and notice to withhold income directed the withholding of $1,015.38 every two weeks from Ralph's pay for his child support obligation.
[¶5] Provident's wage garnishment processor, Deirdre Williams, received and processed the Solomon notice to withhold. Williams' position requires that she accurately process child support orders and other garnishments for hospital employees. Williams, who has worked in this position for 28 years, testified she is familiar with notices to withhold income and that she has processed hundreds of similar orders. When she receives a notice to withhold, she always checks to see how the employee is paid--monthly, bimonthly or biweekly. Williams acknowledged there was an exact calculation of the amount that was to be withheld on the second page of the notice to withhold, and she knew Ralph was paid biweekly. (Throughout the pendency of divorce, Provident withheld Ralph's pay every two weeks under a temporary support order.)
[¶6] Williams testified that when an employee is paid bimonthly, rather than biweekly, she enters a code into Provident's system which directs that the withholdings are to come out of only the employee's first two pay checks should a given month consist of three pay dates. Williams testified that after she received the Solomon notice to withhold, she " probably" put the bimonthly code in the system; a clerical error.
[¶7] In June 2010, Ralph received three paychecks and child support was withheld from all three. Provident was withdrawing child support on a biweekly basis for Ralph. In August 2010, Provident withheld $1,100 from Ralph's paycheck. Ralph contacted Provident and explained that because he was paid biweekly, the amount should have been $1,015.38. Ralph provided Williams with a copy of the support
order and notice to withhold. Williams testified the support order was in Provident's system and that she knew Ralph was paid biweekly. Williams testified that when an employee disputes a withholding, she goes back and checks the support order and notice to withhold to see if the employee has a legitimate complaint. Williams testified that in response to Ralph's inquiry, she corrected the withdrawal amount in Provident's system, but must not have corrected the bimonthly code.
[¶8] Though Williams testified she made a clerical error and entered the code for bimonthly withdrawal, rather than biweekly withdrawal, she did not provide any evidentiary documents confirming her testimony. Williams did, however, offer a note she wrote to Provident's attorney after this lawsuit was filed, which showed what the code would look like if she had set up a bimonthly, rather than biweekly withdrawal. The document was a printed form which provided space for a computer code, but no code was noted. When employees are paid biweekly, no code is entered into Provident's system for withholdings. The exhibits Provident offered showed the ...