In re Marriage of Miller

• Citation: 227 Ill.2d 185,879 N.E.2d 292
• Decision Date: 29 November 2007
• Docket Number: No. 104022.,No. 104035.,104022.,104035.
• Parties: In re MARRIAGE of Lenora Ann MILLER, Appellant, and Harold E. Miller (H.E. Miller, Sr., Appellee; Lisa Madigan, Attorney General, Appellant).
• Court: Supreme Court of Illinois

879 N.E.2d 292

227 Ill.2d 185

In re MARRIAGE of Lenora Ann MILLER, Appellant, and Harold E. Miller (H.E. Miller, Sr., Appellee; Lisa Madigan, Attorney General, Appellant).

No. 104022.

No. 104035.

Supreme Court of Illinois.

November 29, 2007.

James R. Scheibel, Oak Lawn, for appellant.

William R. Dunn, Oak Lawn, for appellee.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Michael A. Scodro, Solicitors General, Diane M. Potts, Assistant Attorney General, Chicago, of counsel), for intervenor appellant.

OPINION

Justice FITZGERALD delivered the judgment of the court, with opinion:

At issue in this appeal is whether the penalty provision contained in section 35(a) of the Income Withholding for Support Act (Withholding Act) (750 ILCS 28/35 (West 2004)), as applied to an employer who knowingly failed to turn over child support payments withheld from his employee's wages in a timely manner, violates the employer's substantive due process rights. The circuit court of Cook County rejected the employer's constitutional challenge and applied the statutory $100-per-day penalty, entering judgment against the employer in the amount of $1,172,100. The appellate court reversed the judgment of the circuit court, holding that the statutory penalty, as applied in this case, was unconstitutionally severe. 369 Ill.App.3d 46, 51, 307 Ill.Dec. 865, 860 N.E.2d 519.

We reverse the judgment of the appellate court and affirm the judgment of the circuit court.

BACKGROUND

On May 1, 2001, the circuit court of Cook County entered a judgment dissolving the marriage of Lenora Ann Miller and Harold E. Miller. The judgment incorporated the parties' marital settlement agreement under which Lenora was granted custody of the couple's only child and Harold was required to pay child support. The support order, entered the same day, set child support in the amount of $82 per week. In accordance with the support order, a "Notice to Withhold Income" issued immediately to Harold's employer—his father, H.E. Miller, Sr., an architect. The notice, which was delivered by certified mail to Miller on May 8, 2001, advised Miller that he was required by law to deduct $82 from Harold's weekly income and forward the same, within seven business days of the pay date, to the State Disbursement Unit (SDU) in Wheaton, Illinois. The reverse side of the notice contained additional information in several numbered paragraphs. Relevant here is paragraph 6:

"LIABILITY: If you fail to withhold income as the NOTICE directs, you are liable for both the accumulated amount you should have withheld from the employee's/obligor's income and any other penalties set by State law. You may be found liable for the total amount which you fail to withhold or pay over and fines up to $100.00 per day for each day after the 7 day grace period."

Although Miller withheld the required support from Harold's wages, Miller did not timely forward the same to the SDU. Thus, on October 12, 2001, Lenora's attorney sent a letter to Miller regarding 19 missing support payments totaling $1,558. The letter reminded Miller of the statutory penalty for late payments, quoting the relevant statutory provision, and further stated, "While it is not the intent of my client to pursue penalties at this time, she does require this money to live. Therefore, timely payments are mandatory. I must require that you bring the payments current by way of immediate payment of $1,558.00 to Lenore [sic] Miller." Miller eventually turned over the missing payments, but failed to stay current.

On February 28, 2002, Lenora filed a motion in the circuit court seeking to add Miller as a third-party defendant in the dissolution of marriage proceeding. The circuit court granted the motion on March 28, 2002, and on the same date, Lenora filed a complaint against Miller for unpaid child support and statutory penalties. According to the complaint, Miller had failed to pay over to the SDU 25 weeks of child support totaling $2,050. Miller was personally served the complaint on April 12, 2002, but failed to file an answer or otherwise plead. Sixteen months later, on Lenora's motion, the circuit court found Miller in default and set the matter for prove-up on August 28, 2003. On that date, Miller's counsel filed his appearance. The circuit court allowed Miller 30 days to answer the complaint. No answer was filed.

The parties next appeared in court on November 5, 2003. The circuit court granted Miller leave to file his answer on or before January 7, 2004. The circuit court also ordered Miller "to remain current in his payment of child support withholding." Miller did not file an answer and did not bring the child support payments up to date.

On January 16, 2004, Lenora filed a petition for rule to show cause. Lenora alleged that Miller, in violation of the court's order of November 5, 2003, failed and refused to submit child support withholding payments to the SDU for the 12-week period beginning October 27, 2003. Lenora sought payment of the arrearage ($984), as well as statutory penalties ($39,500).

On January 29, 2004, the circuit court granted Miller a 60-day extension to March 30, 2004, to answer Lenora's complaint and again ordered Miller to remain current with child support withholding payments.

Miller filed his answer on April 1, 2004, two years after Lenora had filed her complaint. In his answer, Miller admitted that he withheld $82 per week from Harold's paycheck, and that he "fell behind on sending in the child support payments from the very beginning in May, 2001." Although Miller claimed, in his answer, that he was then current with child support payments, an agreed stipulation later entered by the parties demonstrates that this was not the case and that Miller was actually 10 weeks in arrears.

In his answer, Miller raised two affirmative defenses. He argued first that Lenora was guilty of laches in enforcing the statutory penalties, i.e., that she was dilatory in filing her complaint. Miller also claimed that the October 12, 2001, letter from Lenora's counsel, stating that it was not his client's intention to pursue penalties at that time, "lulled" him into a "sense of security." Miller stated that, in reliance on that letter, he continued to make lump-sum payments rather than weekly payments, believing that Lenora would never attempt to enforce any statutory penalties against him.¹

As his second affirmative defense, Miller argued that the Withholding Act was unconstitutional as applied to him, depriving him of his due process rights under both the federal and state constitutions (U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2). Miller claimed the statute was confiscatory because the penalty is not commensurate with the offense and not related in any way to the dollar amounts withheld for child support. Miller noted that, as of March 31, 2004, the total support withheld was $12,382, but that Lenora was attempting to collect a penalty from him of over $1 million.

Lenora moved to strike Miller's affirmative defenses. As to the laches defense, Lenora argued that no reasonable person would have believed the October 12, 2001, letter indicated an intent never to seek statutory penalties, but that any misapprehension would have dissolved when Miller was served with the summons and complaint. Lenora noted that over $700,000 of the penalties she sought accrued after service of summons, and that additional penalties accrued even after the circuit court ordered Miller to remain current. Lenora also argued that she diligently pursued her claim against Miller, filing her complaint less than 11 months after the original child support order was entered. Finally, Lenora argued that the court should consider the family relationship—Miller is Lenora's former father-in-law, and the child support withholding is for the support of Miller's own granddaughter—and the consequent hesitation to litigate.

As to Miller's constitutional challenge to the statute, Lenora argued that the $100-per-day penalty bears a reasonable relationship to a proper legislative purpose and is not harsh because it applies only to knowing violations of the statute. Lenora also argued that the burden to Miller under the statute was slight, and the magnitude of the penalty was the result solely of Miller's own outrageous and indefensible conduct.

Prior to resolution of Lenora's motion to strike, Lenora filed a second petition for rule to show cause. Lenora claimed that, in disregard of the court's orders of November 5, 2003, and January 29, 2004, Miller failed to remit any child support withholding for the period beginning May 3, 2004, to the date of her petition, July 15, 2004.

On August 12, 2004, the circuit court granted Lenora's motion to strike Miller's affirmative defense challenging the constitutionality of the statute. The circuit court also struck Miller's laches defense, but only for the period following the filing of Lenora's complaint. Thereafter, the matter was continued from time to time for prove-up of the statutory penalties claimed by Lenora.

On October 4, 2004, Lenora and Miller filed an agreed stipulation of facts. The parties stipulated that for the period from April 15, 2002 (after Miller was served with the complaint), to October 4, 2004, the amount of penalties which accrued to Miller due to his delinquency in forwarding withheld child support payments to the SDU was $1,172,100. The parties also stipulated to the accuracy of an attached spreadsheet which details the date each withholding payment was due; whether the payment was mailed to the SDU and, if so, the date of mailing; and the number of days, if any, each payment was overdue. The spreadsheet indicates that for the 128 weeks at issue, Miller mailed the withheld child support in a timely fashion on only three occasions, and that, as of October 4, 2004, Miller was 15 weeks in arrears. The spreadsheet also indicates that payments were mailed anywhere...