*1 al., DIENER et DANNY THOMAS, Plaintiff-Appellee, v. APRIL L. Defendants-Appellants. 4 — 03 — 0750 District No.
Fourth August 2004. filed Opinion Argued April *2 Kirchner, Robert G. (argued), Kirchner of Lerner & of Champaign, ap- for pellants. Petty (argued), EC., Mark T. of Petty, Law Office Areola, of Mark T. appellee. JUSTICE APPLETON delivered the opinion of the court: Defendant, Diener, Danny owner of a business known as Chester- Elevator, appeals ville trial judgment court’s ordering the business $87,300 to pay plaintiff penalty as a for knowingly failing to pay, days, within seven support child from employee’s wages. its argues misinterpreted the trial court provisions several within the (750 (West 2000)). applicable statute ILCS We reverse. 28/35
I. BACKGROUND On September 3, 1999, an order to sup- withhold income for child port upon Danny was served as the of Jerry Jean. Jean was obligated pay each in support $77 week child to plaintiff initially through Douglas County Tuscola, Illinois, circuit clerk’s office in (SDU) later, through and the State Wheaton, Disbursement Unit in Il- order, linois. Pursuant to the Danny responsible for deducting $77 each week from pay. Jean’s July 2001, plaintiff brought Danny, suit a seeking
penalty for the comply business’s failure to with the governing statute (750 (West an employer’s duty to withhold child support ILCS 28/35 2000)). 2001, plaintiff In November complaint, filed an amended seek- ing a Danny $153,500 from in the amount of pay- for several allegedly 1,535 timely withheld, ments that were but were mailed late. trial, plaintiff Danny
At called as adverse witness who testified for the Darrell, responsible son, partner that his business typically Danny, Darrell According to payables. payroll business’s wages were Employees’ including paychecks. Fridays, wrote checks September from Danny in arrears. Jean worked paid one week a truck driver. April as through part the latter s by plaintiff questions posed specific unable to answer Danny was checks were written support child as to certain counsel when tasks, and charge of those person Darrell was mailed because it was He knew knowledge thereof. no personal wages Jean’s to withhold regular practice and common business’s ap- every two weeks together and send two every week agency. child propriate support suit was plaintiffs February before
Danny testified that a advising him of plaintiffs from counsel filed, he received letter did not him if he imposed upon could be $100-per-day penalty amount within support child appropriate and forward the withhold paid. For the remainder days from the date Jean was seven business through the employed, February from of the time that Jean was practice his April end he believed Darrell continued forwarding two checks two weeks. matching checking, payroll perusing,
In October after checks, child Danny realized that checks with January ending pay period check or mailed from the written *3 plaintiff’s to $77 He to deliver check attempted 2000. only He that Jean on October 2001. testified counsel’s office week, confusion when day may which have caused worked January on writing However, Darrell had cut Jean a check the checks. The failure to issue the child 28, 2000, though he did not work. even no other witnesses. oversight. Plaintiff called support check was a truck and does Darrell testified for the defense. He drives payroll, billing for the business. This was first dispatching, support payments child been to withhold time he ever wages. employees one week arrears employee’s paid from an on occasion, checks Saturday morning. On he would write every among employees Fridays, commonly understood but it was Saturday morning payday. order, the child Darrell mailed receiving
After first directed. County courthouse as Douglas to the every checks be sent to the checks should He then received notification that Wheaton, rules. Darrell Illinois, included the SDU. The notification notification, that the checks should be which indicated read paid. He called employee of when the within seven sending checks other he be two “them” and advised that would explained procedure Darrell his as follows: week. [(Jean)] week,
“A. He’d week, work a and the following aon Saturday morning him, when the check was due to we would write him a check and would also make out the check for support, child and the stay first check would until following next —the Saturday, and I’d mail both going checks in. That is when we were to Wheaton.” placed
Darrell the checks in the mailbox in front of the business every other Saturday morning, and the picked mail carrier up them from there. That was how all of the outgoing mail from the business was normally handled. The mail was typically delivered around 10:30 a.m.
The record includes all of the original cancelled pay- checks made able Douglas County circuit clerk or to SDU for child and to performed. Jean for work Several discrepancies terms of dates and check comparing numbers are evident when the two sets of stand, checks. On the Darrell attempted explain discrepan- those cies. occasions,
On a inexplicably few cut the child support check on Friday and paycheck Saturday. Jean’s aOn other few occasions (April 14, 2000, example), Jean did not work a week was not issued a paycheck, but Darrell cut a child support regardless. check Darrell stated: ‘T due, know that the child support was we made check whether he earned it or not. We took care of support.” (the plaintiffs
Darrell said counsel contacted him record does not when) indicate about a support missing check from November 2000. Darrell reviewed his records and found the cancelled check that counsel claimed was missing. It had been endorsed Jean’s current check, wife. Darrell issued another dated it November mailed it to SDU. The date on the replacement check that it indicates posted on or about December recalling when, exactly
Not but after sending he had been Wheaton, Darrell that a group testified of three checks were returned from SDU awith notice that the checks contained insuf- ficient information. SDU Security wanted Jean’s Social number and referenced on requested address the checks. Darrell added the informa- tion and mailed the checks back. The notice from SDU not ap- does in the pear record. *4 cross-examination, acknowledged began
On Darrell that the checks going to SDU in November one month after he received order to questioned “missing” withhold. Plaintiffs counsel him on the (admitted 24, 2000, November plaintiff’s check. SDU records as exhibit) 22, 2000, indicated that on it received two November checks again and then none until December 2000. Because at time missing, he 24, 2000, check was not realize the November Darrell did said, sending them. He mail before checks to waited until he had two week, I mailed it last guess, thought I up, I messed I “I wasn’t sure. I “[n]o, continued, I didn’t mail check. I but didn’t.” behind.” probably checks but I fell week two SDU, from which exhibits an undated notice plaintiffs One of (one being were returned dated support indicated that two checks 2000) “missing” and the check dated November December Darrell they unacceptable payee.” payable because were “made to an receiving always made the acknowledged the notice. He said he of the above- way, and it was not until the time checks out same checks to him for the stated referenced notice that SDU returned the and mailed them back changed payee reason. He again Saturday, put that other two checks SDU. He testified for the and in the business’s mailbox put envelope in one pick up. mail carrier to redirect, daily picks up Darrell that mail carrier
On testified re-cross-examination, On Dar- mail from the mailbox. business’s for the checking rell testified that his mother balanced the account loose, checkbook, in a kept business. The checks are bound supply His of checks to the his mother’s house. mother sends week’s father, Danny. duphcates, DarreU’s The checks have with they written, duphcates after are DarreU back with sends for DarreU’s mother. court,
Upon examination the trial DarreU stated that since the loose, possible they kept checks are it was that were not or written placed order. He that he the checks in the mailbox consecutive testified in front and 9:30 a.m. on morn- of the business between 8 ings. evidence, the court took the case completion
After the trial closing argu- under advisement and asked counsel submit written opinion a memorandum August ments. On the court issued (1) exhibit that court listed prepared attached (2) Jean, the date of payable check number of each check made (3) (3) Jean, Jean, check was due to each check to the date that each (4) check, each the check number the date of of each (5) check, or date deposited,” the “earher of date received (6) days a calculation of the number of after seven business column, totaled the final which delinquent. the check was court responsible delinquency for a revealed that the business was $87,300, mak- days. judgment plaintiffs The court entered favor for fact, will reiter- ing findings conclusions of which we several law appeal ate in detail below. This foUowed.
650
II. ANALYSIS Section 35 of the Income Withholding for Act Support (Support Act) (750 (West 2000)) ILCS sets forth the payor. duties of the It 28/35 part: states in relevant payor
“The pay shall the amount withheld to the State Disburse- days ment Unit within 7 business after the date the amount would (but income) for the duty to withhold paid have been or credited to obligor. the If payor knowingly the pay any fails to amount with- held to the days State Disbursement Unit within 7 business after the date the amount paid would have been or obligor, credited to the payor pay penalty the shall a day for each $100 that the with- paid held amount is not to the State Disbursement Unit after the period of 7 days has expired. payor, failure of a on occasion, more pay than one to amounts withheld to the State Disbursement Unit days within 7 business after the date the paid amount would have been or obligor credited to the creates a presumption payor knowingly that the pay failed to over the penalty may amounts. This may be collected in a civil action which brought be payor obligee the in public favor the office. finding A of a payor’s nonperformance the time required within under Act this must be documented a certified mail return receipt showing withholding the date the income notice was served payor. Act, on the purposes For of this amount withheld shall be paid by payor considered on the payor.” date it is mailed the interpret There are three Illinois that and apply cases section 35 (750 (West 2000)) Support Act predecessor ILCS or its 28/35 (750 (West 1996)), yet ILCS the precise none address issues 5/706.1 presented here. Products, Safety L.L.C., Vrombaut v. Norcross 298 Ill. 3d App. (1998) (Third
560,
District),
In Grams v. 687 App. 319 Ill. 3d 745 N.E.2d (2001) (Third District), guidance forth statu court set how the tory employer in section 35 should be The defendant assessed. Grams, stipulated liability. App. 319 Ill. 3d at 745 N.E.2d at 689.
651 Welding & Fabrica v. Chenoa Dunahee decision This court’s (1995), closely is more tion, 201, 652 N.E.2d Inc., 3d App. distinctions, important judice, sub with some analogous to the case distinctions address those We will opinions. than the Third District’s below. in the relevant sections in detail fine on $100-per-day imposed Dunahee, this court
Briefly, withholding order. comply with a failing timely employer then- at 445. The Dunahee, 652 N.E.2d App. Ill. (West 1994)) (750 5/706.1(G)(l) statutory ILCS section applicable 10 calendar check within employer to forward Ill. 3d paying employee. but There, out a check each week wrote at 442. N.E.2d only *6 Dunahee, App. 273 Ill. obligee. to the them once a month 209, 3d at N.E.2d at 652 and the federal legislative history the statute’s We considered (1988 (42 § 666 Code U.S.C. Title 42 of the United States
mandate of withholding wages of an employer of Sup. 1993)), regarding & V appropri of the was concluding imposition penalty before the obligor, 205-10, 652 at 442-45. We Dunahee, App. 273 Ill. 3d at N.E.2d ate. any the hard compensate plaintiff the serve to penalty held would Dunahee, noncompliance employer. and future the ship would deter 208, at 444. We also noted without App. 273 Ill. 3d at 652 N.E.2d not to have an incentive application penalty, employers of a would timely “The in manner. support payment send in a withheld child obligee, mailed to the a withheld child check longer to use to its own longer employer those funds are available for 208-09, at 444- advantage.” Dunahee, Ill. at 652 N.E.2d App. 273 3d distinguish the in Dunahee and 45. We leave undisturbed our decision facts here. court, holding in Dunahee judgment, relying
In its the trial our mandatory when the imposition that the of the (see Dunahee, timely withholding App. 3d at did not remit (1) 208, 444), found as follows: the “child 652 N.E.2d facility thereof’; or a not mailed at a United States Post office were (2) Monday through days” the term “business meant because, case, Danny particular conducted business six this (3) week; sup in the date on a child discrepancies due to several consistency payroll of a check and the lack of port check and the date numbers, not reliable Danny and Darrell’s records were in the check testimony “subject question.” to and their misapplied sec- Danny argues misinterpreted that the court vagueness. agree We and, alternatively, section 35 is void tion 35 of the statute Danny findings application that the court’s in error. were
652
A. Standard of Review Our standard of review is twofold. To the extent we are review ing legal effect facts, of undisputed our review is de novo. ESG Watts, Inc. Board, v. Pollution Control 326 Ill. App. 3d 760 (2001). 1004, N.E.2d However, 1007 we review the trial court’s find ings of they fact to ensure supported by are the evidence and are not against the weight manifest Village evidence. Lake Villa v. (2004). Stokovich, Ill. 2d 810 N.E.2d “One of the purposes appellate is to review determine whether the lower court committed reversible error. jury, Where the trial court sits without a findings its of fact will not be they disturbed unless are manifest weight the evidence.” Harris Trust & Savings Bank v. Vil lage Hills, Barrington 146, 156-57, 2d Ill. 549 N.E.2d (1989). Mailing
B. First, the trial court held it Danny was insufficient for place envelope containing the child support checks in the mailbox outside of daily business for the pick mail carrier to and take up post office. produce The court noted did not evidence of when the mail picked up from his mailbox that the mail carrier had a duty pick up mail from the mailbox and forward it to the addressee. finding, judge
In its
trial
Dunahee,
relied on
wherein Justice
opined
Knecht
merely
“[defendant
needed
put
each week’s check
in a stamped envelope
to the appropriate party,
place
addressed
any
corner mailbox.”
273 Ill.
Relying
First, there are no “corner mailboxes” in rural like areas Chester- ville, fact, Illinois. In Darrell post testified there was no office in Ches- post Arthur, Second, terville. The nearest office was in Illinois. accord- definition, ing something to the in order to “mail” “deposit must *** (a etc.) letter, package, Service; with the U.S. ensure that a Postal addressed, letter, package, properly etc. is a stamped, placed into (7th 1999). receptacle pickup.” Dictionary for mail 964 Black’s Law ed. Courts have held that deemed to have mailing is occurred when testimony a presented person there that indicates that followed his customary procedure placing normal or documents in the mail. See Co., Buckingham Ewing 839, 844, 305 Corp. Liquors App. v. 3d
653 (First District) (1973) charged person of (testimony 278, N.E.2d 282-83 was was followed practice general business mailing of that duty Insurance Safeguard v. mailing); Raptis of required presumption (1968) 835, (Michigan 198-99, 837 193, 163 N.W.2d Co., App. 13 Mich. “ Court) properly a letter ‘was means that (“mailing” Appellate mail, and that it was of in the due course transmission prepared for forward duty of charged with custody of the officer in the placed McDonald, 269 S.W2d v.Co. Casualty Insurance mail.’ Texas ing the (Tex. Storage & 1954)”); v. Hughes Civ. Wharf Pacific (California (1922) Supreme 205 P. Co., 188 Cal. Court) (there when was mailed that document proof sufficient was let mailing of invariable custom that he followed his witness testified document mailing specific though he did not recall ters even Zimmerman, 171 Wis. v. question); Federal Asbestos Co. Court) (evidence (1920) (Wisconsin that letter Supreme
N.W business, it would be ordinary of where, in the course placed was mailing). of proof was to constitute post taken to office sufficient that receptacle a letter in a Likewise, physically placing we find United Postal Service is not property is the of the States Here, suf a mailed. we find the evidence was prove that letter was Darrell testified that mailing when proof ficient to constitute checks, envelope, in one placed two wrote the mail car daily mailbox for the deposited envelope in the business’s envelope that the post rier to office. testified transport to the mail car prior hours placed approximately in the mailbox two procedure that delivery time. Darrell further testified this typical rier’s outgoing mail. commonly followed for all the business’s testimony following customary business We hold that sufficient to create practice for documents in the mail was placing hold the facts mailing We also that under presumption occurred. it case, receptacle, where this in the business’s placing of the United States Postal incoming employee receives mail from an up, is postal employee pick for the places outgoing mail Service mailing. sufficient to constitute Calculation Days
C. Business because conducted business The trial court held that meaning Saturday, day” within Monday through “business check, the seventh meant the child to be statute Monday, following nine must have been mailed day, payment determining Jean was whether paid. calendar after court counted untimely penalty, and in calculation of the its *8 day. This was in error. as a business The Support Act defines day” day “business as a on which State 28/15(b 5) (West are open regular offices business. 750 ILCS — 2002). State generally offices are open regular not business on Saturday, Sundays, holidays. Therefore, certain according statute, day” term “business means Monday through Friday without regard when the employer’s open. business is The trial court should not have Saturdays included holidays in its calcula- tion.
D. Payor’s Liability Support Under the Act provides Section 35 that support child paid by considered mailed, payor when it is which must be done within seven business (West 2000). days of paying obligor. 750 ILCS This is the 28/35 reviewing central issue in propriety order— court’s determining when the support checks were mailed.
The trial court used the date stamped on each check (purportedly by the child support agency indicating when the checks were either posted deposited) or to estimate when the checks were mailed. We will disturb finding court’s of fact it is manifestly against unless weight evidence, as the court is in a superior position to determine credibility, weigh evidence, and determine preponder Plus, ance thereof. Shields Pork Inc. v. Valley Ag Service, Swiss (2002). Ill App. 3d 767 N.E.2d Our review of the cancelled child support checks indicates that testimony Darrell’s was, that he mailed two checks in one fact, supported by Typically, evidence. two checks were date- stamped date, creating with the same a reasonable inference that two checks were mailed and together. received It did appear several oc- casions that the date of the check and stamped the date the check was support the child agency delay. example, reflected an unusual For checks dated October 15 and agency bear an date-stamp of November upon testimony, 1999. Based Darrell’s likely would have most Saturday, those checks on October Counting post open office was and mail was delivered, appears days passed it that 13 before the checks were stamped. delay, it, trial; This and others like explained was not however, it, evidence, the court evidentiary attributed absent to Danny. found, to, Danny’s
The court as it was entitled and Darrell’s “subject testimony question.” The court stated defendant “[i]f always alleges, ‘mailed’ checks as he it would not have taken as [cjlerk long to reach the or the the posting depositing S.D.U. as date imposing penalty upon payor on the check shows.” We find relying purportedly on the date the check arrived at the child obligation is The payor’s the statute. under agency improper *9 ILCS days. See 750 seven business 28/35 payment the within mail (West 2002). no bear- absolutely has stamps the check date SDU to determine whether not be used obligation and should ing on this from Working backward with the statute. payor compliance the was in was, in this mailing the date to determine the check’s arrival date case, error. reversible testimony not to unreliable, uncontradicted inherently
Unless Cook, County 103 National Bank v. disregarded. Cosmopolitan be (1984). already have We Ill. 2d 469 N.E.2d documen by the testimony supported was that Darrell’s determined time, thus date-stamped at one that two checks tary evidence in were His inherently unreliable. discounting testimony fact that his the witness, only one too, Plaintiff called uncontradicted. testimony, testimony that Darrell’s Danny. were called to contradict No witnesses present did not every checks other week. Plaintiff two time it took the usual postmarked, of when the checks were evidence Wheaton, or normal mail to travel from Chesterville to Tuscola support the child opening posting for and checks within procedure agency. weight of the evidence sum,
In find it was the manifest we in time the date of any gaps the trial court to attribute between for stamped to Darrell’s failure to the check and the date the checks were checks, when, the case presumably as was timely especially mail here, they the time were many hands touched the checks between received, placed agency “in mailbox” the time the either delay be attributed to posted, or the checks. The could deposited automatically been assessed anyone in the chain and should not have Danny evidentiary support. without above, payor’s provides As we have stated section 35 mailing of the withheld obligation completed upon is considered (West 2000). 28/35(a) testimony 750 ILCS Uncontradicted amount. See obligation mailing two checks in by that Darrell satisfied the showed time legally prescribed every other within frame.
E. Dunahee Distinguishing fading to Dunahee, imposed upon we There, the obligor’s pay. from the timely support remit child withheld person charge withholding mailing obligor’s pay from the proper she amount testified withheld of the a month. Section 706.1 only mailed the checks once week (750 ILCS Marriage Act Marriage Illinois and Dissolution 5/706.1 (West 1994)) required the employer to mail the checks within days calendar obligor date the paid. The employer admitted consistent noncompliance withholding with the intentionally order forwarding the payments only once a month several months despite obligee. notification from
N.E.2d at 445. held mandatory
We statute, nature of the coupled with the legislative intent, made application of the statute reasonable since that was the type of behavior the statute was meant to Such redress. is not the case here. and Darrell they complied testified mailing statute each check within the seven business days paying Jean. The evidence demonstrated that if the check was (like not written or mailed within the seven business the check paid in October 2001 for the child due January 2000, and the “missing” 2000), check from November oversight it was an anot knowing violation of the Support Act. Darrell testified that he knew the child support needed to paid be and took care of it whether Jean *10 earned it not.
Thus, we find the trial court erred in a imposing 622-day penalty January on the 2000 check an 11-day penalty on the November 2000 check. “knowing” Neither constitutes a violation under the Sup- port Act. find testimony regarding We Darrell’s importance pay- ing child support regardless of whether Jean earned it indicated he did not intentionally disregard obligation his on either occasion.
In
analyzed
we
the House debates
the then-applicable
Representative
statute.
Dunn was concerned that
penalty imposed
a
upon
employer
at the rate of
a day
unduly
$100
harsh and
could be unfair to
employers,
smaller
especially those who had more
than
employee subject
to an order to
Representative
withhold.
attempted
Frederick
Representative’s
to ease
Dunn’s concerns
indicating
the penalty
apply
would not
to an
negligent
innocent or
employer,
intentionally
but to one who
a
support pay
withheld
child
parent. Dunahee,
207-08,
ment from the custodial
Because the employer forwarding Dunahee knew it was not days checks within of payday, 10 calendar the penalty properly imposed. Here, was, employer worst, negligent. cognizant of forwarding the child within the seven and, days except exceptions, few innocent the evidence did not demonstrate that he failed to do Mailing so. two checks Saturday complied other with the statute. The check held from the mailed, Darrell, according first week was to within five business paid. when Jean was of the 35, we are mindful the intent behind section analyzing In employ- effect, has recruited the State duty employer. placed on enforcement agencies. The enforcement private ers as subject penalty is to a civil employer obligation voluntary. not is liability comply. for failure $87,300 Jean’s from recover a windfall permit To plaintiff it clear only if is be found is an onerous burden and should Recovery Support Child that burden. See legislature that the intended (Alaska Inc., P.3d 69-71 Services, Waterfront, Inc. v. Inn at (Alaska Court) 2000) withholding intent of state’s Supreme (analyzing statute). intent, of the language express legislative Neither penalty statute, supports application presented nor the evidence Danny, and improper impose find it was here. We judgment trial therefor. reverse the court’s we Vagueness F. Void for alternative, vague 35 is Danny argues In the that section void judgment on other reversed the trial ness. Because we have court’s general “The rule is that grounds, we need not address this issue. validity statutory unless the provision of a courts will consider by it affected or the person challenging provision directly pervasive as to render the entire statute unconstitutional feature is so Morgan, v. 203 Ill. 2d N.E.2d People invalid.” (2003). is the Neither case here.
III. CONCLUSION stated, the trial court is reversed. judgment For the reasons Reversed. J.,
STEIGMANN, concurs. McCULLOUGH, dissenting: JUSTICE proving their burden of disagree I that defendants sustained *11 timely mailed. support checks were 35(a) provides part: Act Support Section pay withheld to the State Disburse- payor “The shall the amount the amount would ment Unit after the date within 7 income) (but or credited to duty paid withhold have been for the 28/35(a) (West 2002). obligor.” 750 ILCS by mail, Statutes, section respect payment the Statute With 1.25, provides in pertinent part: any description required kind or or authorized
“[A]ny payment thereof, by any political paid to[ ] to be the State or subdivision State: laws this
(1) if through mail, transmitted the United States shall be deemed filed with or received the State political subdivision on the date shown the post office cancellation mark stamped upon the envelope or other wrapper containing it[.]” 5 ILCS 70/ (West 2002). 1.25
The trial court found: “Defendant, in support that his mailing complied method of 28/35, produce 750 ILCS did any evidence when the mail was
picked up private mailbox, at his rural or that the rural mail car- any rier duty pick up such mail from Defendant’s private rural mailbox or to forward such mail left in a rural mailbox to the person to whom addressed.”
Placing mail in a private rural mailbox does not require- meet 35(a) ments of section of the Support Act or section 1.25 of the Statute on Statutes.
In Dunahee,
suggested
pursuant
we
to section
“Defendant
merely needed to put each week’s check in a stamped envelope ad
dressed to the appropriate party,
place
any
corner
mailbox.”
PATRICIA Plaintiff-Appellee, ABENDROTH, v. HARRY JOE Margaret Ex’r of Deceased, the Estate of Cooper, al., et Defendants-
Appellants. Fourth District No. 4 — 03 — 0810 July 23, Opinion Rehearing August filed denied 2004.