Schultz v. Performance Lighting, Inc.

• Decision Date: 21 November 2013
• Docket Number: No. 115738.,115738.
• Citation: 999 N.E.2d 331,376 Ill.Dec. 448,2013 IL 115738
• Parties: Jennifer SCHULTZ, Appellant, v. PERFORMANCE LIGHTING, INC., Appellee.
• Court: Illinois Supreme Court

2013 IL 115738

999 N.E.2d 331

376 Ill.Dec. 448

Jennifer SCHULTZ, Appellant,

v.PERFORMANCE LIGHTING, INC., Appellee.

No. 115738.

Supreme Court of Illinois.

Nov. 21, 2013

Affirmed.

Joel S. Ostrow, of Bannockburn, for appellant.

Michael D. Furlong, of Trobe, Babowice & Associates LLC, of Waukegan, for appellee.

OPINION

Justice THOMAS delivered the judgment of the court, with 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, 368 Ill.Dec. 623, 984 N.E.2d 569. 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). ¹ 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.² 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. ³

¶ 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 included in the notice, defendant should have been able to comply with the notice.

¶ 9 The circuit court rejected plaintiff's response and instead agreed with defendant's arguments. Accordingly, it dismissed plaintiff's complaint with prejudice. The appellate court affirmed, holding that the omission of the required information, in particular the ex-husband's social security number, invalidated the notice of withholding and mandated dismissal of the case. 2013 IL App (2d) 120405, ¶ 26, 368 Ill.Dec. 623, 984 N.E.2d 569. We allowed plaintiff's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).

¶ 10 ANALYSIS

¶ 11 The central issue in this case is whether a notice of withholding that is statutorily deficient because it fails to include the required social security number of the obligor can nonetheless be deemed sufficient to impose a duty on an employer to withhold the obligor's income. Plaintiff argues that including the obligor's social security number is not mandatory and only substantial compliance with the statutory elements of a withholding notice is required to make a notice effective and binding. Thus, the issue before us requires that we interpret the provisions of the Act to determine whether plaintiff's notice of withholding was sufficient to impose a duty to withhold in this case.

¶ 12 The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent. Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 503–04, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000). The best indicator of legislative intent is the statutory language itself, given its plain and ordinary meaning. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 479, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). We consider the statute in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it. People v. Perry, 224 Ill.2d 312, 323, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). Moreover, to the extent there is any ambiguity, penal statutes and statutes that create “new liabilities” should be strictly construed in favor of persons sought to be subjected to their operation and will not be extended beyond their terms. See, e.g., Nowak v. City of Country Club Hills, 2011 IL 111838, ¶¶ 19, 27, 354 Ill.Dec. 825, 958 N.E.2d 1021 (statute creating a new liability strictly construed in favor of entity that would have been subjected to the liability); Croissant v. Joliet Park District, 141 Ill.2d 449, 455, 152 Ill.Dec. 561, 566 N.E.2d 248 (1990) (penal statute to be construed strictly). Similarly, statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. Nowak, 2011 IL 111838, ¶ 19, 354 Ill.Dec. 825, 958 N.E.2d 1021. The proper construction to be placed on a statute is a question of law that we review de novo. Id. ¶ 11.

¶ 13 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). Under the Act, an “[o]bligor” is defined as the “individual who owes a duty to make payments under an order for support.” 750 ILCS 28/15(e) (West 2010). A “[p]ayor” is defined as “any payor of income to an obligor.” 750 ILCS 28/15(g) (West 2010). Section 35 imposes a $100 a day penalty on a payor who knowingly fails to withhold income of an obligor in the amount of an income withholding notice served under the Act. 750 ILCS 28/35 (West 2010).

¶ 14 The statute requires the “obligee,” the plaintiff in this case, to serve the income withholding notice on the payor and the obligor. 750 ILCS 28/20(g) (West 2010). Section 20(c) of the Act sets forth the information that must be included in the notice of withholding. It provides in relevant part as follows:

“The income withholding notice shall:

(1) be in the standard format prescribed by the federal Department of Health and Human Services; and

(2) direct any payor to withhold the dollar amount required for current support under the order for support; and

* * *

(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...