Schultz v. Performance Lighting, Inc.

• Decision Date: 05 February 2013
• Docket Number: Docket No. 2–12–0405.
• Citation: 984 N.E.2d 569,368 Ill.Dec. 623,2013 IL App (2d) 120405
• Parties: Jennifer SCHULTZ, Plaintiff–Appellant, v. PERFORMANCE LIGHTING, INC., Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120405

984 N.E.2d 569

368 Ill.Dec. 623

Jennifer SCHULTZ, Plaintiff–Appellant,

v.PERFORMANCE LIGHTING, INC., Defendant–Appellee.

Docket No. 2–12–0405.

Appellate Court of Illinois, Second District.

Feb. 5, 2013.

Joel S. Ostrow, of Law Offices of Joel Ostrow, of Bannockburn, for appellant.

Michael D. Furlong and Peter M. Trobe, both of Trobe, Babowice & Associates, LLC, of Waukegan, for appellee.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[368 Ill.Dec. 624]¶ 1 Plaintiff, Jennifer Schultz, appeals the judgment of the circuit court of Lake County, which dismissed her complaint seeking to recover from defendant, Performance Lighting, Inc., child support amounts that defendant allegedly should have withheld from her ex-husband's paychecks pursuant to section 35 of the Income Withholding for Support Act (Act) (750 ILCS 28/35 (West 2010)). The trial court held that plaintiff's notice of withholding to defendant was not strictly compliant with the provisions of the Act (see 750 ILCS 28/20(c) (West 2010)). On appeal, plaintiff contends that she substantially complied with the notice provisions, at least sufficiently to trigger defendant's obligation to withhold funds from the ex-husband's paychecks. Plaintiff urges that, because her notice was sufficient in fact to notify defendant of its withholding obligation, the trial court erred in dismissing her complaint for failing to state a claim. We disagree with plaintiff and affirm the trial court's judgment.

¶ 2 We begin by summarizing the pertinent facts of record. In 2009, plaintiff sought a divorce from her now ex-husband. On November 19, 2009, the circuit court of Lake County entered an order that required the ex-husband to pay support to plaintiff in the amount of $600 every two weeks. Plaintiff sought to acquire the support by withholding from the ex-husband's wages. At the time of the entry of the order, the ex-husband worked for defendant.

¶ 3 The record indicates that plaintiff personally served her notice to withhold income for support on defendant. Plaintiff attached the notice she served on defendant to her complaint. The notice given defendant did not include the ex-husband's social security number or the termination date of defendant's income-withholding obligation. Notwithstanding the lack of a social security number, the notice contained sufficient information from which defendant could infer the termination date of its withholding obligation, such as the birth dates of the couple's children and a definition section that stated that child support terminated upon the later-occurring of the younger child's eighteenth birthday or graduation from high school. Plaintiff also personally served the ex-husband's attorney in court. (The Act states that the obligor ( i.e., the ex-husband) is to be served notice via ordinary mail to his last known address. 750 ILCS 28/ 20(g) (West 2010).)

¶ 4 The record shows that, through May 2010, plaintiff's ex-husband continued to work for defendant. Plaintiff never received any support payments deriving from her ex-husband's employment with defendant. 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 defendant, pursuant to section 35 of the Act (750 ILCS 28/35 (West 2010)), owed a duty to plaintiff to comply with the notice of withholding. Plaintiff alleged that defendant breached its statutory duty to her, thereby triggering a penalty of $100 for each day defendant failed to pay over to the State Disbursement Unit the ordered amounts.

¶ 5 On January 24, 2012, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2–615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–615 (West 2010)). Defendant argued that plaintiff's notice of withholding did not comply with the statutory requisites of section 20(c) of the Act (750 ILCS 28/20(c) (West 2010)) and that plaintiff did not properly effect service on her ex-husband under section 20(g) of the Act (750 ILCS 28/20(g) (West 2010)). Defendant contended that, because plaintiff's notice of withholding did not comply with the statute, defendant's duty to withhold and pay over a portion of her ex-husband's paychecks was never triggered.

¶ 6 The trial court granted defendant's motion to dismiss. It accepted defendant's contention that the notice provisions in the Act required strict compliance. The trial court dismissed with prejudice plaintiff's complaint. Plaintiff timely appeals.

¶ 7 Plaintiff contends that the defects in her notice of withholding and in her service of the notice were matters of form rather than substance. Plaintiff argues that her notice of withholding was sufficient to apprise defendant of its obligation to withhold and pay over monies from her ex-husband's paychecks and that any omissions were so minor that she substantially complied with the statutory requirements. Plaintiff concludes that, as a result, the trial court erred in dismissing her complaint.

¶ 8 The dispositive issue in this appeal is whether plaintiff's notice of withholding was sufficient. We can determine the sufficiency of the notice of withholding only by reference to the terms of the Act. In other words, we must interpret the provisions of the Act in order to determine whether plaintiff's notice of withholding was sufficient to trigger defendant's duty to withhold the ordered sums from her ex-husband's paychecks.

¶ 9 The cardinal goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. In re Estate of McFadden, 2011 IL App (2d) 101157, ¶ 17, 357 Ill.Dec. 778, 964 N.E.2d 141. The best indication of the legislative intent is the language used in the provision, given its plain and ordinary meaning. Id. Where the statutory language is clear and unambiguous, we must apply it as it is written, and we will not read into it exceptions, limitations, or conditions that are absent from the statutory language. Id. Further, penal statutes are strictly construed and will not be extended beyond their terms. Croissant v. Joliet Park District, 141 Ill.2d 449, 455, 152 Ill.Dec. 561, 566 N.E.2d 248 (1990). When reviewing a question of statutory interpretation, we apply a de novo standard of review. Blum v. Koster, 235 Ill.2d 21, 29, 335 Ill.Dec. 614, 919 N.E.2d 333 (2009).

¶ 10 The Act provides a means for the custodial parent to collect child support payments directly from the noncustodial parent's employer. 750 ILCS 28/35 (West 2010). The legislature created the Act to coordinate with income-withholding support provisions found in other statutes, such as the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/706.1 (West 2010)), the Non–Support of Spouse and Children Act (750 ILCS 15/4.1 (repealed 1999)), the Illinois Public Aid Code (305 ILCS 5/10–16.2 (West 2010)), and the Illinois Parentage Act of 1984 (750 ILCS 45/20 (West 2010)). See 750 ILCS 28/5 (West 2010).

¶ 11 Specifically, section 35 of the Act places a duty on the payor who has been served with notice to pay over to the State Disbursement Unit the ordered portion of the obligor's income. 750 ILCS 28/35(a) (West 2010). Section 20(c) of the Act provides the information to be included in the notice of withholding. It provides, pertinently, that:

“The income withholding notice shall:

* * *

(9) include the Social Security number of the obligor; and

(10) include the date that withholding for current support terminates, which shall be the date of termination of the current support obligation set forth in the order for support; and

(11) contain the signature of the obligee or the printed name and telephone number of the authorized representative of the public office, except that the failure to contain the signature of the obligee or the printed name and telephone number of the authorized representative of the public office shall not affect the validity of the income withholding notice[.]” 750 ILCS 28/20(c) (West 2010).

Thus, the provisions regarding the information to be contained in the notice of withholding require both the anticipated termination date and the obligor's social security number. In addition, the obligee's signature is expressly excepted from affecting the validity of the notice of withholding.

¶ 12 Here, it is undisputed that plaintiff's notice of withholding did not include her ex-husband's social security number or the termination date of the withholding obligation. The issue, then, is what effect, if any, these omissions have on the validity of the notice. We determine that the omission of the social security number is dispositive.

¶ 13 Two aspects of section 20(c) of the Act lead us to our conclusion. First, subsection (c) uses the word “shall,” so in crafting a notice of withholding, the obligee “shall” include the obligor's social security number. “Shall” generally indicates that the legislature intended a mandatory obligation. Holly v. Montes, 231 Ill.2d 153, 160, 324 Ill.Dec. 481, 896 N.E.2d 267 (2008). The word “generally,” however, offers ample wiggle room. While “shall” typically indicates a mandatory, rather than a directory, provision, a mandatory provision does not always require strict compliance and might be satisfied through substantial compliance. Fehrenbacher v. Mercer County, 2012 IL App (3d) 110479, ¶ 15, 360 Ill.Dec. 244, 968 N.E.2d 737.

¶ 14 Pertinent to our inquiry here, a line of cases holds that, where “shall” is accompanied by some sort of penalty or consequence, it will be deemed mandatory and require strict compliance; where no penalty or consequence...