Vrombaut v. Norcross Safety Products

August 7, 1998

No. 3--98--0079
_________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

SUZANN VROMBAUT, ) Appeal from the Circuit Court
Plaintiff-Appellant, ) for the 14th Judicial Circuit,
) Rock Island County, Illinois
v. )
)
NORCROSS SAFETY PRODUCTS, ) No. 97--L--153
L.L.C., a Limited Liability )
Corporation, formerly known )
as and successor to Norcross )
Footwear, Inc., a ) Honorable
Corporation, ) Martin E. Conway, Jr.
Defendant-Appellee. ) Judge, Presiding
________________________________________________________________

JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________

Does section 706.1(G)(1) of the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/706.1(G)(1)(West
1996)) impose a $100-per-day penalty upon an employer which, after
receiving an order of withholding, fails to withhold child support
payments from its employee's paycheck? We hold that it does not;
therefore, we affirm the trial court's decision.
BACKGROUND
A judgment of dissolution was entered dissolving the marriage
of Suzann and Thomas Vrombaut. In accordance with the judgment,
an order of income withholding was served on the defendant,
Norcross Safety Products, L.L.C. (Norcross), in February of 1996.
According to the order Norcross was to withhold $90 per week from
Thomas's income for child support. The order also required that
the funds be mailed to the clerk of the circuit court within 10
days of withholding.
Once in October of 1996, and twice in January of 1997,
Norcross failed to withhold the child support payments from
Thomas's employment check. Suzann filed a civil suit pursuant to
the employer penalty provision of section 706.1(G)(1) of the Act
(750 ILCS 5/706.1(G)(1)(West 1996)), seeking damages in the amount
of $100 per day for each late payment. During the proceedings, the
parties stipulated that Norcross failed to withhold the income.
In October 1997, Norcross moved to dismiss the complaint
pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735
ILCS 5/2-619(a)(9)(West 1996)). Norcross alleged that the language
of section 706.1(G)(1) only imposed a penalty for the failure to
tender payment of a withholding to the clerk, not for failing to
withhold the income initially. The trial court agreed, finding
that section 706.1(G)(1) of the Act did not penalize an employer
that failed to withhold the payment. The court dismissed Suzann's
complaint with prejudice and she appeals.
STANDARD OF REVIEW
In reviewing the dismissal of an action pursuant section 2-
619, this court must accept all facts properly pled as true.
Zielinski v. Miller, 277 Ill. App. 3d 735, 660 N.E.2d 1289 (1995).
Absent an issue of fact, we review the trial court's decision de
novo to determine whether the dismissal was proper as a matter of
law. Garcia v. Metropolitan Property & Casualty Insurance Co., 281
Ill. App. 3d 368, 666 N.E.2d 802 (1996).

DISCUSSION
We are called upon to determine whether section 706.1(G)(1) of
the Act penalizes an employer that fails to withhold child support
payments from an employee's paycheck.
Section 706.1(G)(1) requires that the payor shall deduct the
amount designated in an order for withholding and pay the amount
withheld to the obligee. Specifically it states:
"It shall be the duty of any payor who has been
served with a copy of the *** order for withholding ***
to deduct and pay over income as provided in this
subsection. *** If the payor knowingly fails to pay any
amount withheld to the obligee or public office within 10
calendar days of the date income is paid to the obligor,
the payor shall pay a penalty of $100 for each day that
the withheld amount is not paid to the obligee or public
office after the period of 10 calendar days has expired."
(Emphasis added.) 750 ILCS 5/706.1(G)(1)(West 1996).
The fundamental principles in construing a statute are well
settled. Above all other rules of statutory construction, we must
ascertain and give effect to the legislature's intent in enacting
the statute. Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445,
687 N.E.2d 1014 (1997). The legislature's intent is best
demonstrated by the language of the statute itself. Bonaguro v.
County Officers Electoral Board, 158 Ill. 2d 391, 634 N.E.2d 712
(1994). If the legislature's intent is clear from the statute's
plain language, the court must confine its inquiry to a
consideration of that language and must not look to extrinsic aids.
Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 664 N.E.2d 61 (1996). In construing a statute, we should read it as a
whole and no word should be interpreted so as to be rendered
meaningless. Caterpillar Finance Corp. v. Ryan, 266 Ill. App. 3d
312, 640 N.E.2d 672 (1994). Questions of statutory construction
are questions of law. Babbitt v. United Parcel Service, Inc., 212
Ill. App. 3d 204, 571 N.E.2d 506 (1991).
Suzann insists that the trial court's interpretation of
section 706.1(G)(1) is absurd and leads to an unjust result. She
contends that the penalty provision applies to both of the employer
obligations that arise under the statute -- the duty to withhold
and the duty to pay over. Norcross maintains that the language of
the statute is clear and that it imposes a penalty on a payor only
if the payor fails to timely remit the child support actually
withheld from the employee's wages. We agree with Norcross.
The plain language of section 706.1(G)(1) imposes a penalty on
an employer who "fails to pay any amount withheld to the obligee."
(Emphasis added.) 750 ILCS 5/706.1(G)(1) (West 1996). The only
plausible reading of this sentence is that an employer will be
penalized if it does not promptly pay over an amount withheld from
an employee's paycheck. The penalty provision specifically imposes
a fine for failing to remit a withholding. The provision, however,
does not reference an employer's initial failure to withhold the
child support. The absence of such language leads us to conclude
that the intent of the legislature was to encourage the quick and
efficient payment of child support to the obligee once it has been
withheld. Unless or until the legislature indicates that the
penalty provision is meant to apply to all duties imposed upon the
employer under the Act, we decline to apply the penalty in the
manner urged by Suzann. We therefore hold that section 706.1(G)(1)
of the Act must be construed to mean that a penalty will be imposed
only if the employer does not remit the child support withheld in
a timely manner.
Suzann argues that the interpretation we adopt circumvents the
underlying purpose behind the withholding statute. We are mindful
that the courts need not adhere to a literal reading of statutory
language when such a reading would defeat the legislature's obvious
and clearly expressed purposes. See Harris v. Manor Healthcare
Corp., 111 Ill. 2d 350, 489 N.E.2d 1374 (1986). We find, however,
that our reading of section 706.1(G)(1) is consistent with the
penalty provision's objective.
In Dunahee v. Chenoa Welding & Fabrication, Inc., 273 Ill.
App. 3d 201, 652 N.E.2d 438 (1995), the court analyzed the
underlying purpose of section 706.1(G)(1). In that case, the
employer withheld the appropriate amount of child support from the
employee's paycheck, but failed to pay over the check within 10
days. The plaintiff filed suit against the defendant for failure
to comply with section 706.1(G) of the Act. Turning to the
legislative history of the penalty provision, the court found that
the statute was enacted to ensure that obligees received support
payments in a timely manner. Dunahee, 273 Ill. App. 3d at 208, 652 N.E.2d at 444 (quoting excerpts from 87th General Assembly House
debate (87th Ill. Gen. Assem., House Proceedings, June 28, 1991, at
32-34)). It noted that the longer an employer failed to remit
withheld child support, the longer those funds could be misused and
mishandled by less than honest employers. Dunahee, 273 Ill. App. 3d
at 208-09, 652 N.E.2d at 444-45. We have carefully reviewed the
legislative discussion surrounding the Act and agree with the court
in Dunahee that the problem sought to be cured by the inclusion of
the penalty provision was the timely payment of support to the
obligee. We find that the construction of section 706.1(G)(1) we
adopt today is consistent with that underlying purpose.
Suzann contends that our interpretation of the Act would allow
employers to avoid a penalty by simply failing to withhold child
support from an employee's paycheck. We disagree. Although the
plain language of the penalty provision imposes a penalty upon an
employer only for not remitting withheld child support, the spouse
to whom the child support is owed is not without a remedy at law.
Under section 706.1(J) of the Act an obligee may file a complaint
against an employer that fails to deduct child support from its
employee's earnings. Upon filing such a complaint, the court may
order the delinquent employer to comply and impose a fine against
it, not to exceed $200. 750 ILCS 5/706.1(J)(1)(b) (West 1996).
Thus, while we recognize that the legislative amendment to section
706.1(G)(1) imposes a stiffer penalty on an employer that fails to
make a timely payment of child support than on an employer that
fails to deduct the payment at all, we cannot agree with Suzann's
argument that obligee spouses are remediless. It is the assignment
of the legislature to correct the apparent anomaly of which Suzann
complains. See Toys "R" Us, Inc. v. Adelman, 215 Ill. App. 3d 561,
574 N.E.2d 1328 (1991) (court must construe statute as is and may
not add omissions, remedy defects or otherwise change law so as to
depart from its plain meaning). Accordingly, we affirm the trial
court's ruling.
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
HOMER, P.J., and LYTTON, J., concur.