2015 IL App (1st) 133048
Ill. App. Ct.2015Background
- Iren and Ralph Solomon divorced; Ralph was ordered to pay $2,200/month in child support, withheld biweekly as $1,015.38 per paycheck.
- Ralph’s employer, Provident Hospital, received the income withholding order and its payroll processor, Deirdre Williams, handled garnishments for 28 years.
- Williams testified she mistakenly entered a bimonthly code (instead of leaving the biweekly default), which caused no withholding from the third paychecks in December 2010 and June 2011; Provident subsequently paid the missed amounts within two days of notification.
- Iren sought statutory penalties under section 35 of the Income Withholding for Support Act (750 ILCS 28/35) — $100 per day for each "knowing" failure to remit withheld amounts.
- Trial court found Provident’s failures were a mistake, not a knowing violation, and denied the penalty petition; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two missed withholdings create a statutory presumption of a "knowing" failure under section 35 | Two separate missed withholdings (after notice) trigger the presumption that failure was knowing and Provident failed to rebut it | Provident argued the misses were clerical, inadvertent coding errors and it corrected them promptly upon notice | Court held the presumption was rebutted: evidence supported a nonknowing clerical error and the trial court’s factual finding was not against manifest weight |
| Whether a county hospital (Provident) is immune from liability for the section 35 penalty under Tort Immunity Act §2‑102 | Iren: section 35 applies to governmental employers; penalty is statutory, not punitive, so Tort Immunity Act doesn’t bar it | Provident: as a local public entity, Tort Immunity Act bars punitive/exemplary damages and thus the §35 penalty (citing Second District precedent) | Majority: declined to apply Murray; held Tort Immunity Act does not bar liability here because processing withholding orders is ministerial, not discretionary; but decision on immunity was dicta; concurrence would not reach the issue due to forfeiture |
| Standard of review for factual findings about knowing violation | Iren: urges clear and convincing standard to assess rebuttal of presumption | Provident: trial court’s factual findings reviewed for manifest weight | Court: statutory interpretation de novo; credibility/facts reviewed for manifest weight; declined higher clear-and-convincing standard |
| Whether §35 penalty is punitive or remedial (affecting immunity/analysis) | Iren: penalty enforces compliance and is consistent with treating employers (including government) as subject to §35 | Provident: relies on cases treating penalty as punitive to argue immunity | Court: adopts view that §35 penalty is statutory penalty (not common-law punitive damages); nonetheless concluded Tort Immunity Act inapplicable here because task was ministerial |
Key Cases Cited
- In re Marriage of Miller, 227 Ill. 2d 185 (statutory penalty applies per knowing failures)
- Grams v. Autozone, Inc., 319 Ill. App. 3d 567 (each knowing failure to remit withheld amounts is a separate violation)
- In re Marriage of Chen, 354 Ill. App. 3d 1004 (section 35 penalty is a statutory penalty rather than common-law punitive damages)
- In re Marriage of Gulla, 234 Ill. 2d 414 (penalty upheld where employer delayed withholding for extended period)
- Thomas v. Diener, 351 Ill. App. 3d 645 (no penalty where employer oversight caused a single week of missed payments)
- City of Chicago v. Seben, 165 Ill. 371 (definition distinguishing ministerial vs. discretionary acts cited for immunity analysis)