this matter was brought to assess a statutory penalty that's imposed upon a pay or support obligation employer and al gore when they fail to abide the terms and conditions of an income withholding or the trial court deny that relief to the allergy sally hundley in this case and we believe that the trial court's reasoning in that regard was flawed we also believe that because it's a slightly different argument that's made by the defendant the employer their argument is similarly flawed sally's argument in support of this is really pretty simple and straightforward and it was when we presented it to the court also tr l court also the statute the income withholding act in illinois really only imposes one burden on the payer of support the person who receives the income withholding order and that burden is to once they've received the income withholdin order to withhold and pay over and there are time limits during which they must do that i believe is fourteen days that they have before they have to make the first withholding and then they have to pay over within seven days after that but the obligation is simple it's withhold and pay over now if it's undisputed in this case that bart sand and gravel the employer received the income withholding order it's undisputed in this case that they actually withheld payment pursuant to the terms of the income withholding order that they received it similarly undisputed in this case that they did not pay over the support that they withheld they retained it in their own accounts for whatever benefit that would provide to them it's likewise undisputed in this case that the point of having not received that support for a period of time sent the statutory only required notice to the employer the pay or in this case requesting identifying the fact that there had been a payment made and requesting that they either pay the support that was due or provide some explanation as to why they couldn't pay it it's undisputed in this case that by cart sand and gravel made absolutely no response to that request and the end result of that was that during seven payroll periods prior to the time that the request was made support was retained withheld by the employer and not paid over and for at least fifteen efficient all payroll periods after that notice was sent this support was again withheld by the employer but retained and not paid over based on the and gravel was liable for the statutory penalty that would have been imposed because of its complete failure to abide by what the statute requires and what the income withholding notice required that's the pitch we to the trial judge the trial judge took a slightly different tack when she analyzed that situation and her analysis of that situation was that if the income withholding notice itself was not valid if it was void for some reason then the employer would no hold no obligation to abide by its terms even though it actually had abided by its terms in this case the trial judge took a look at the situation and said well of there wasn't a support order that was entered at the time that would have justified this income with only order and therefore the income withholding order itself was invalid and couldn't be enforced that analysis by the trial judge fails for a number of different reasons  the first one is that there was a support order in place the support order had been in place since november of the year prior to november of two thousand and fifteen there is a court order to be activated  this the best way i can put it in turns out it was conditional on uncertain in a certain time period he would start paying a certain amount correct i think once the home sold or something like that partially correct ok so sooner or later the support was to faceted situation that mr huhne lee was supposed to be making payments some bills to satisfy some debt obligations that the parties had and he was to make those paper payments on a periodic basis at all times after november of two thousand and fifteen and up until the time that the house residence real estate that they own was sold and proceeds were paid out and then those proceeds were to be used to pay off all of that maryland that yes and at that point in paying a fixed sum of money which was three hundred and whatever number of dollars it is that's identified in the judgment and he would pay that amount going forward but he would pay that amount an amount of money that was equivalent to that before and he paid that amount of money after that the obligation was basically the same before and after the house was sold what happened in this particular case was the house was set was placed for auction under the terms of the divorce judgment it was said to be i keep saying the house it's a house of forty acres was set up for auction and during that period of time mr huntley did not pay us for that with asian i don't have an explanation as to why he didn't pay the sport obligation i just know he didn't pay the support  something that we argued to the court at the time and we made reference to it all during the course of this litigation he did not make any payments of support prior to january one of two thousand and sixteen so he was making those payments regarding the bills he wasn't making any payment of of any benefit at all in august towards the end of august of two thousand and fifteen the house was in fact sold at auction it was anticipated because there were a number of factors that we had to accomplish with respect to the lenders these parties lenders in order to get liens cleared so that we could pass merchantable title to the purchaser and we anticipated that the closing of that real estate transaction was going to take place shortly before january one two thousand and sixteen and both of the parties and both of their attorneys were in on the notion that that was going to be the terminations of the prior obligations support and where we were going to start collecting the some certain that was identified and that's in the original start this in january because we anticipate that home so we had that discussion in court yes indeed we have a transcript if you don't have a transcript of that what you have is a record that indicates that to the court and all that kind of swell we didn't provide a copy for filing with the court because it's not required till such time as is necessary in this case then become necessary to file that until a later date when these issues came up but but he was served with a copy of the withholding artists and he didn't make any objection to it and i think that's the that is a keenly important point in determining whether or not anybody old obligation of support here has you here arguing that the remedy is to object not to have the employer and it's his remedy to object not the employer's remedy to object the employer's obligation when they receive the notice the obligation they may have they may or may not have an obligation to their employee i don't there isn't one that's identified in the statute but maybe morally they have an obligation to their employer to say something one way or the other but it's the employee's outpatients do something about it if that's what has to be done now in this case none of that happened because mr huntley didn't object in fact i can i mean i i know just as a matter of the proceeding mr huntley didn't want to object because the alternative was he was going to be held in contempt for a nap and support so he anticipated that the money was going to be withheld and he didn't object to his employer when they started with all that when was the money of the money wasn't in fact paid until the end of may or the first of june of two thousand and six his support obligation at any time personally but starting on january one two thousand and sixteen his employer started withholding money that was pursuant to the withholding or the marital settlement agreement from they placed mr hanley in a difficult position because people were looking to him for to him for payment of the support obligations which he had already paid because it was being withheld by his employer the plate and this this is huntley in a difficult position because  time she went to mr huntley and said where is my support he says they're with all the net so that's a catch twenty two that the employer created by not paying the money or not something that was created by anybody else in this process and again the i think the primary concern with the judge's position in this matter is that the money was actually the buckets and gravel actually honored the income of holding those it's not as though they contest the penalties the hundred dollars a day penalty for failing to with on pay over how much we're told that i believe at the time that they paid it off they paid the balance of the year it was one hundred forty seven thousand eight hundred dollars  pretty severe forward works like oversight but people who don't really know what they were doing well there's two responses to that one of them is it is severe and it's severe furries it's severe to make people employers in this case not to do this and courts of the state the supreme court of the state made that determination in the past that even though the penalty is severe it's not something that shouldn't be considered in cases there where the employer doesn't do what they're supposed to do i know there's another reason why i said that because i told you there w iraq not thinking about the other but the the the bottom line is they didn't do what they were supposed to do under the circumstances and that is a penalty that's imposed as a result of it i speculate partly why do you suppose purely speculation that's what it is the part that i've had all along is that there was communication between the employee and the employer during that period of time and the employee didn't want to pay the money over to kind through his wife that's my thought it's a small company everybody knows everybody else and i think that they need personally i think they were doing it intentionally to create a hardship on mrs ottley but a obviously that's just respectfully that is just what i asked that's just my speculation that it is not that they withheld it but didn't pay it over well that and judge what's more odd than that is that we communicated with them on a number of occasions and formalize that when we sent him a notice on feb sixteenth and said wait a minute we haven't received any money and what we're asking you to do is one of two different things both of them are required by the statute either pay us the money you owe us or tell us why you're not paying and just do something and well as day saying saying well oh gosh we screwed up so i thought with respect to the court's order is this isn't an issue that relates directly towards whether or not there was a support order and not a supporter because that's not for buckhart say in the gravel to make a determination that if they start if employers start being able to have a right to inject themselves in their interests into family law decisions that relate to whether or not when support out of the pays we've got a problem and really they're out of nothing when they comply because they're taking the money from new orleans and they're turning it over to the person who is entitled to the money and if they do that they are happy with nothing it's a wash to them they're just withholding the money and pain at the wherever it is it's supposed to go and in this case they took the money and they held onto it and i know that there are cases that have been decided in this you know not in this court but in other appellate courts in the state where that issue has been adjudicated as to what the use of the money what use was the money  tendering the period of time that the company was actually holding and not painted over we're we're not raising that issue here i don't know what they did with that or why they did what they did with it but they have it made it continuously throughout the course of this process that when they receive the income withholding order they withheld the money and they have admitted continuously with throughout this process that when they withheld the money they didn't pay it over and they have admitted throughout this process that once they got our notice they ignored it now there are other arguments that have been made that weren't and again i don't believe that the court was correct then trying to assess what responsibility the employer has for determining whether or not i support obligations this i think the statute is very the statute identifies the entire process for how this matter supposed to go and that process is withhold and pay over and do that until a court or another income withholding order tells you to do differently and they they didn't do that that's what our card sand and gravel proposes as their position in this is that the order itself the income withholding notice itself was insufficient in that it painted copy of  judgment that established the support obligation and i would consent to that it did not contain that this statute required the statute does not require that now what the statute requires in fairness to everybody the statute requires that we use a federally mandated form and the form contains in two different places one on the first page one on the second page reference to the fact that the income withholding order must be regular on its face and to be regular on its face it identifies on the very first page that if this is sent to you by an attorney needs to contain a copy of the judgment establishes order out it doesn't provide any other direction there other than to say that they are to honor the order of its regular  space when you turn the page and go to the second page of that instrument there is a specific paragraph there with a little checkbox on it that says return to sender that if you have the employer receiving this income with only water notices that it is not quote regular on its face close quote in and in this particular case doesn't contain a copy of the underlying judgment their obligation is to check that box and return it to the sender out i think that's a conflict with the illinois law but illinois law says you're supposed to use that form so i assume that they were to do what that the oilers obligation was to do whatever the form told them to do under those circumstances in this case not only did they have well when they received the order if they reviewed it they saw that it was not regular on its face because it didn't contain a copy of the underlying order whether that's mandated by all my statute or not that's what they saw when they flip the page state with a scene there's a place for them to check a box and say ok if this isn't regular on its face i gotta send it back check the box put it in the mail send it back to re engineer in taylor behl and eat a green junior obviously going to pick up the phone call you and say what you sent this back to me well it doesn't have a copy of the judgment they have to it well all right i'll send you another one but they didn't do that they didn't do anything they didn't respond to that issue and they didn't respond to our notice of non receipt when we sent it in feb they ignored all of those things completely and the defenses that they raise now about the order not being regular on its face have only been races this lawsuit now the only way i think conveniently and realistically to sort through all this thing is to follow what the statute says is supposed to be done under these circumstances and what the statute provides relative to the employer is that when they receive an income withholding order their withhold the money and pay it over and if they're not going to pay it over they got to tell somebody why we're not paying it or in this case they didn't do that and they not only didn't do it when they got the income withholding order they didn't do it when they received the notice that said something screwed up here this is wrong we're not receiving the money if you're not if you're not sending it to us for a reason tell us what the reason is otherwise and this money and they ignored that based upon some very clear reading of the income withholding statute which is seven fifty twenty eight at sap and his we look at the definitions that are contained in that statute it helps us to understand what the role of each of these parties are and how the obligations under the statute created to to get to the very end of this and i will go to those into those definitions but the very situation and arguably that would be mr hunter k twenty eight fifteen he defines a knob of core as an individual who owes a duty to make payment under an order of support so now we have to ask yourself was there an order of support that too is defined by the statute at twenty eight fifteen a an order for support means if you were which provides for periodic payment of funds for the support of the child or maintenance of a spouse clearly in this instance what we're talking about is was there an order of support for maintenance of th chart in order for us to come to an understanding of whether there was an order of spore and in the way that the court looked at it judge archer looked there was a look at the dissolution order which incorporated by reference the parties separation agreement and in that separation agreement i specifically said in three point two point two i'm sorry to read these things to the court but their specific in their their language three point two point two says on or after the first day of the month next following the sale of the parties farm rules state located in rule rochester illinois and the distribution of the proceeds sale there are then otherwise support here and the husband shall pay to the purpose behind this statutory provision which says essentially we're real concerned people get child support and even these kinds of orders and if you're the o agency that's supposed to be receiving it and he tell on me by the way you know we're taking this money out of your check because we have this order this is essentially a push for you and if there's a we still in order for there to be a penalty assessed in this situation then this statute has to apply to us and this is what the court concluded and this is what we argued to this court is that we were not a pe or we therefore are not subject to the penalties of this statute based upon this interesting analysis going into checking to see whether the when when the withholding order is supposed to take place and this is allegedly a premature order a premature action based on an order that is correct he supposes the legislature expected for to be called upon to analyze the underlying orders to see whether or not they're legit well i believe that the legislature intended for people who were not subject to the legit but that's it that's it and i well i don't i disagree in for the reason that what is being asked for here today is the imposition of a penalty and  about the penalty before the trial court to go ahead and do that to present whatever arguments or equity arguments you want to present to the trial court on what penalty to impose well of course you did today is that is where you a go are under that statute the trial court error by altering your work we buckhart was not a novel goold by definition we were not an obstacle or the best that we could have been would have been to have been a pa or in our obligation is a paid or is based on the question is does the obloquy war have a duty to make a payment under a new order of support and you clearly do unless you go through this and analyze it and figure out the time under the pain under the marital settlement greenman to see what was this arguably premature but for that you would clearly be required going to well if if there were an order that your claim that the condition president as determined by the trial court had not occurred which created the order of support so therefore there was no support the condition precedent was the sale of the property and thereafter after not only the sale of the property but the distribution of the proceeds thereafter then we were to he would have an obligation that's when he became an o searcher and didn't happen that the legislature intended for the obama gore to not only have the opportunity but the responsibility to check the underlying support order to see if it's legit why do they require why doesn't the legit why didn't the legislature require that the support order in august and says be attached to the  section twenty eight details certain items that shall be within the order of support or i'm sorry within the income withholding or ok the income withholding order is has ordered as previously ordered and that your employee did not have jacked to the order for withholding you fact agree that that would be taking place and would be coming over no i disagree with that