withholding and two paychecks worth of nine withholding those instances are not disputed from a factual point of view but caterpillar argues that they should not be part of this case as it was tried and i'll address that in a moment as the second meaning of most of that but the real bone of contention in the main issue on this bill comes down to one word in the withholding and that word is knowing the act provides for civil liability to the child's recipient well knowingly pay ost withholding amount designated in the income withholding knows caterpillar doesn't dispute that it failed with poll correct amount designated to the noticed but it does dispute that it did so knowing the statute doesn't include a definition of the word knowingly but to determine what the legislature of meant when it enact a that statute or to use that term knowing it's not appropriate to focus only on that one word but one has to look at the statute as a whole purposes in the statute and the background against which the statute was enacted now what we're talking about here when it gets right down to it is in or saying the court or course always have the power enforce a court order and there's always a knowingly requirement embodied in that ability to enforce the order knowingly means was the person properly before the court was the person given proper notice of the requirements of the order were directives of the order clear and specific to the person have the means and ability to comply with the directives of the and did the person in light of all of that comply with the order so when this section of the enforcement act was or the withholding activation call it was an act that it was not against the plank slate the court always had the power to enforce an order and here there is this additional statutory layer the purpose of which is clear and that is to assure that recipients of child support would receive their payments on time and in full and caterpillar has never challenge that as a statutory purpose and that purpose is where the interpretation of the statute ought to began several cases have addressed the meaning and application of that section and its predecessor in the two thousand and eight and on a first district case from twenty ten those cases are discussed extensively in our brief and the appropriateness of the penalty was upheld in what those cases taken together have in common in our interest that each of the employers in those cases didn't set up a system that was designed to fulfill the employer's obligations under the only act even where there was a minimal burden on the employer to do so and the employer had it at its mean within its power to do so that's the case with how do you compare process depending upon i don't know how much evidence was put in regarding the number of employees the number of individuals who have these kinds of orders the overarching responsibility of caterpillar to a lot could they could have done more but it looks as if there was effort expended they were  was not a inattention to fulfilling the statutory requirements in other words you you made reference to the fact that yes they withheld the money and apparently did so at a time away but they just had a system in place where they chose not to forward it on it out of on the schedule they were supposed to have done so the question then becomes how do you compare that to caterpillar all hearing caterpillar and the record is very clear on this the trial record that a pillar certainly had a system a department which handle child support enforcement there is no doubt about that but what caterpillar employees told us very clearly was the system amounted to one person one person gets the order and looks then puts it into the system and that's the end of it there is no double check there's no quality control to speak up and that's really been exactly our point in this case your honor in order to fulfill the requirements under the  caterpillar needed to do something more than simply say we will give an order to one person let that person do what that person is going to do and leave it at that their pastors yes there is a system but there has to be a system that provide reasonable assurance that the requirements of the order going to be fulfilled and to say as as caterpillar seems to be gearing towards saying this happened because we're so big and we have so many people and we have so many processes respectfully is not an answer to the question because the order is in order to caterpillar not to individual employees within caterpillar and so just as in donaghy where you say there was a flippancy i don't know if i would categorize it in one way or the other but there was certainly a situation where done in the data employer did not put in place a system that would comply with the requirements of the order and the requirements of that he knew of and the records of those instances were included in the trial record caterpillar had failed to do with all and so in a sense there is without a pattern but i hasten to add your honor that a pattern is not a requirement under thirty five a of the of the withholding act not to say that you suggested it was but what we're talking about here is whether caterpillar in this instance with this party properly without and if we want to look at a pattern the pattern that in fact in this particular case there were nineteen consecutive under withholdings caterpillar that's a pattern subsequent to that there were twenty eight additional under to withhold on a contemporaneous basis by cat i'm curious about what happens after patents notified a failure to withhold and they received a court order there was some letter that america about thirty three hundred dollars i bet thirty three hundred dollars wasn't paid until february of two thousand and ten does the penalty is there any penalty involved in that period of time from october to february or as the penalty only relative to the of the contemporaneous failure to withhold you understand the i think the proper answer your question and i don't mean to be flippant is oh the withholding order establishes the obligation and under section thirty five a the way the penalty is calculated is on a per day basis from when the payment should have been made in other words when the paycheck was within a week of when the pay check was issued up to the time the payment was actually made to be specific your honor argument was at c eight twenty through c eight thirty six as a part of that there were two charts attached showing exactly what the calculation of and all of these were from the starting point to the ending point how much it that let me just ask you this there was a period of withholding that should have been made that one nineteen separate withholdings that one my right ride for him and so on a rarity accumulates of about thirty three hundred dollars is that right the principal amount of the with holding the should have been ok and so the penalty under the statute relates to the failure to  here this question but is there anything under the steps and that allows for the penalty to attach for this timeframe of october the sixteenth from february the first because as  and so what i'm curious about is that three month period because certainly when you're talking about and knowing failure to pay the withheld amount that three month period  timely support payments even including after the period it was just a terrorist points out when caterpillar was without question on specific notice of having failed to fly with the order and withhold the proper amount nothing's more and nothing more is required to show the caterpillar acted knowingly under the act because in the final analysis there was nothing that caterpillar did not know th been put no put on notice on numerous occasions and in addition to that requiring boat to go back to court not once but twice to put to fix the withholding problem and then go back  frankly i don't know whether that's that's accurate or it's not because my understanding based on the evidence that was a deuced trial was that it was one hundred seventy four ninety nine in each case so that frankly i don't have an answer as to why that i reading that right that's what it says but that's why i think the one seventy five zero one is not a cor one and the actual number under withholdings is i think one or two greater than are shown on this chart the says as as we noted the final closing argument chart so there  now not surprisingly caterpillar argues that the case is like thomas which was decided by this court and the circuit court relied heavily on thomas the key for caterpillar in the circuit court seems to be the thomas determine in light of all the facts of that case that any possible under with holding or late payment there was innocent or negligent and was not therefore no caterpillar analogize this case thomas it does so i believe by setting up a false choice it claims to have made an innocent mistake and sets that up as if innocent mistakes were the polar opposite of knowingly as used in the statute but that's not correct because the first question says nothing about innocent mistake it doesn't use that terminology at all even thomas which does talk in terms of innocent mistake does so in the context of a pack situation in which the employer certainly made very substantial efforts to satisfy its obligations under the act in fact in thomas and this is i think the really key fact thomas in some cases they're the employer made payments to the pay referred to the recipient of child support even when the employee didn't earn a paycheck even when there would have been nothing to do with hole so caterpillar birches a construction of knowingly which is essentially equivalent to malicious no one says that caterpillar was out to get ali but that's not the standard under the statute your honor i see that my time is included has said cases dealing with this particular exact stature it just means something more than negligence and this was a case where it was if there was negligence nobody's denying that rod's lowery typed the wrong number in the computer n and it was up there was no question whether or not having not withheld it they had paid over money they'd never with help they would have just been paying over their own bodies that the money from the ex husband ultimately they did pay it of the money caterpillar they didn't have the money from him to give to her home but if he had left the employment of caterpillar but prior to when it was noticed that there was another withholding would that be able to say rectify for us well maybe we don't have a responsibility to comply with the order anyway because we haven't had a chance to hold it because we didn't hold it to start like a series of mistakes somehow let's everybody well well the statute doesn't say anything about what happens to a rich that's accidentally so those are actually it may help you  and the penalties are significantly less they don't have the hundred dollars cruel so it is my memory of this case my understanding as it is here for us this is all or nothing if it was done knowingly from take the money out and then set up maybe put it a bank account so that current interest on it or at the end of the month they've got those they got pay and they say well i'll just put it use this money i'll make up for it next month that's what interferes with is the parent deserving chows or doesn't receive it in a timely way that's equal to the statues directly i don't think there were any lobbyists over there trying to prevent few more points like to make as a serve why to case that was put in the reply brief as the indian curry case the suggestion was that you can't use the same definition of knowingly the civil statute that would be  credible statute and i don't think that's what that case the court in that case the for the other and remarkable proposition that duty that duty can arise from my sta behave so that case doesn't say you can't have the same definition of knowing in the criminal world so and you know the problem i think that a fantastic job is ordering went through what knowing me means negligently filing or i don't think honest or that they can certainly certainly be compelled to fix their behavior or order but not punish for it i'm talking about the small of the question about what happens to the accidentally created the rear of i don't remember it being an issue at trial i remember talking about it before trouble with with my clients and my co counsels but i don't think it the statute was intent intended to address the mischief here is obvious the child support recipients and children would not receive their payments on time in full and in this case clearly all he did not and there's no one to look to for that fact that it needed to know to withhold properly that it didn't know whatever acting not knowingly mean it must mean in a minimum not knowing something material that one needed to know and that's not the case here caterpillar hasn't told us one single thing that would allow it to say it did not act knowing it knew everything it needed to know it just didn't pay attention to its own records its own files its own processes and make sure that it did what it was of located to do under the w