In re Solomon

• Decision Date: 11 March 2015
• Docket Number: No. 1–13–3048.,1–13–3048.
• Citation: 29 N.E.3d 560
• Parties: 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).
• Court: United States Appellate Court of Illinois

29 N.E.3d 560

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).

No. 1–13–3048.

Appellate Court of Illinois, First District, Third Division.

March 11, 2015.

Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Daniel F. Gallagher and Marie D. Spicuzza, Assistant State's Attorneys, of

counsel), for appellee Provident Hospital of Cook County.

OPINION

Justice HYMAN

delivered the judgment of the court, with opinion.

¶ 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.

¶ 3 BACKGROUND

¶ 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 correct withholding amount and that the withholding was to occur biweekly, with no code having been entered to change the withholding from biweekly to bimonthly.

¶ 9 Iren argues the evidence at the hearing shows that no code was actually entered to change the withholding pay cycle for Ralph from biweekly to bimonthly and, therefore, Provident's failure to timely pay her the child support was knowing. Iren contends Provident's exhibits contradicted Williams' testimony that she input a code.

¶ 10 On June 29, 2011, no child support was deducted from Ralph's third paycheck of the month. On August 2, 2011, Iren's attorney contacted Williams and questioned why child support was not withheld from Ralph's third check. Williams admitted that the money had not been withheld and questioned whether that was correct. During the same conversation, Williams informed Iren's attorney that Provident did not withhold child support from Ralph's third check in December 2010. Two days after this conversation, Williams sent a check to the State Disbursement Unit for $3,046.14, the amount of the two missed child support payments. Williams testified the withholdings of the incorrect amounts had been a “mistake.”

¶ 11 On October 24, 2011, Iren filed her petition seeking to hold Provident responsible for “knowingly” failing to pay child support on more than one occasion, seeking the $100–per–day penalty. She argued that because Provident failed to withhold income from Ralph's paychecks on two separate occasions after Ralph had informed Williams of the error, this triggered the presumption that the failure to withhold was a “knowing failure” under section 35 of the Withholding Act. 750 ILCS 28/35 (West 2010)

.

¶ 12 Instead of having child support deducted from 26 paychecks, Ralph only had it deducted from 24 paychecks. No withholdings were made from the paychecks dated December 29, 2010, and June 29, 2011. December 2010 and June 2011 were months with three pay periods, so a bimonthly coded order would not deduct child support from the third paycheck of those months.

¶ 13 Following the hearing, the court denied Iren's petition to determine and collect the statutory penalty under section 35 of the Withholding Act finding Provident's failures had been a “mistake.”

¶ 14 ANALYSIS

¶ 15 Section 35 of the Withholding Act provides for a $100–per–day penalty to be assessed for each violation of the Act. 750 ILCS 28/ 35 (West 2010). “ ‘A separate violation occurs each time an employer knowingly fails to remit an amount that it has withheld from an employee's paycheck.’ ” In re Marriage of Miller, 227 Ill.2d 185, 194, 316 Ill.Dec. 225, 879 N.E.2d 292 (2007)

(quoting Grams v. Autozone, Inc., 319 Ill.App.3d 567, 571, 253 Ill.Dec. 564, 745 N.E.2d 687 (2001) ). Iren claims she went 232 days without proper child support payments. The parties agree that Provident satisfied the arrearage in child support payments and, therefore, the only dispute is whether the statutory penalty can be assessed for Provident's noncompliance with the Solomon support order. Iren argues the two errors created a statutory presumption that Provident knowingly failed to process the payments and Provident failed to offer sufficient evidence to rebut that presumption.

¶ 16 Standard of Review

¶ 17 Iren contends that in denying her petition, the court did not properly apply the legal presumption provided in section 35 of the Withholding Act. She argues the trial court “effectively ignored and/or misapplied the legal presumption that Provident's failure to withhold was a knowing violation (based upon two separate failures to withhold).” She asks that we review this matter under a clear and convincing standard and find the State failed to rebut the presumption.

¶ 18 The interpretation of a statute is a question of law, which we review de novo. See Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill.2d 315, 319, 338 Ill.Dec. 444, 924 N.E.2d 970 (2010)

. When interpreting the language of a statute, our primary goal “is to ascertain and give effect to the intent of the legislature.” Id. The plain language of the statute best indicates the legislature's intent and if that language is “clear and unambiguous, we will enforce it as written and will not read into it exceptions, conditions, or limitations that the legislature did not express.” Id.

¶ 19 As a reviewing court, we will not disturb the trial court's findings of fact unless they are against the manifest weight of the evidence. In re Marriage of Chen, 354 Ill.App.3d 1004, 1011, 290 Ill.Dec. 69, 820 N.E.2d 1136 (2004)

; see also Thomas v. Diener, 351 Ill.App.3d 645, 652, 286 Ill.Dec. 537, 814 N.E.2d 187 (2004) (“standard of review is twofold”—de novo review of the legal effects of undisputed facts, whereas the trial court's findings of fact are reviewed “to ensure they are supported by the evidence and are not against the manifest weight of the evidence”). The issue before us...