or council so there are at least i guess i can say there appear to be two different mechanisms in the support for withholding person or to act by which a pay or they be obligated to pay a statut because of their failure to me or the dell support to a novelty under section thirty five a of the withholding act the statute provides that a penalty will be imposed when i pay our acts knowingly in failing to pay the previously withheld support over and in section forty five j of the same act the statute provides that a pal the will be imposed when the pay or ignores my firm that statute but when the pay or ignores the notice of no receipt forwarded by the allergy to pay or i'm unable to find in my research relative the cases i don't see anything in the statute that requires any connection between the two of those necessarily although i think when you read it it appears that maybe one follows the other and that in order like you must file or send a notice of time receipt but at least as far as the case law that i've read i haven't found any connection between the two but what i am able to find is that regardless which avenue mechanism to take to get to the point where a penalty should be imposed on a not a or the penalty that is to be imposed is exactly the same in both cases and that penalty irrespective of the managed mechanism by which it's imposed is that the pay or shell in addition to the previously the payment of the previously unpaid support and interest being additional some equal to one hundred dollars a day for every day that the amounts designated in the income withholding order are not paid over to the students first the benefit of the op with the trial court in this case properly found after this matter was court properly found after a trial that both of those aspects of the staff should have been satisfied they found that me or him at that knowingly after they had received a notice of non receipt from our g p and it imposed as a result of that a statutory penalty in the amount of one hundred twelve dollars which was computed to be a hundred dollars per day for every day from the provos hundred twelve thousand crack and it was computed to be one hundred one hundred dollars per day for every day from the day that the order for withholding was effective which in this case was january nineteenth until i believe it was may twenty third there's a dispute in the record as to whether the proper date for the terminations of the support of the penalty should have been made twenty third of may twenty six but your respective of that court imposed penalty of one hundred twelve thousand dollars frankly were we were willing to live with that at the time but buckhart was not they took exception to that ruling and suggested on reconsideration to the trial court the bar card should not be penalized for having failed to pay over support during periods of time when the court to determine it had that not acted knowing that being the period of time from the time of the service of the income of all the order until its receipt of the notice of mine recei and after hearing on that matter the trial court determined based solely on the language of the statute itself this is dettori penalty should not have been imposed for any period of time when buckhart was not in fact acting knowingly and therefore reduce the amount of the statutory penalty from one hundred twelve thousand dollars to an amount of fifty three thousand four hundred dollars the trial court's ruling in that regard is wrong and in least two respects and in the larger scope of things acted without knowledge of its obligation under the income withholding order and that concept is not evidence in the record i'm i'm not going to go into all of the evidence that was presented to restate the whole thing except suffice it to say during the course of our parents involvement in this process it actually acknowledged the receipt of the income withholding order at the time that it was actually received then and indicated  by the certified mailing received and it at that time on the first effective date after that which turned out to be january nineteenth started with holding money from the  the representative of a representative of my office when the money wasn't paid over through the state this person in a for the benefit of the allergy representative of my office contacted buckhart repeatedly on a number of different occasions trying to find out why the money wasn't being paid over whether it was the end held or not or elves are sent off or not sent off and on over a period of time between the time the order for withholding should take effect after the first of received the support obligation and didn't and so there was a notice of non receipt forwarded to buckhart seems to me there are two aspects of this case they differ as they leave the first  when the trial court said that the you know judge i want to say two things about that i'm sorry i'm asserting that the finding of fact that she made was incorrect i don't think it makes a difference in the ultimate determination  case either way and i'll get to that here in a second but they are incorrect to the extent that the the trial court made a determination that buckhart did not act knowingly from the time it received the income withholding order until the time that it received the notice of non receipt and statute says something different than that the statute says i think very unequivocal that the penalty to be to be imposed is computed based on one hundred dollars a day penalty but it's computed out during a specific period of time and the period of time it's computed over is the time that the a or fails to pay the amount of support that it owes over to the state's first pursuant to the terms of the income of holding or regardless of at what point in the determination that buckhart wasn't acting knowingly up until from the time they received the income withholding order until the time that they received the notice of not received and not paying the money out as they would tell that they just helped with held it in their own account and then didn't pay it out over a period of time which amounted to before the notice was sent six payroll areas that link the time permits the allergy in this case a presumption that in fact they were acting knowingly so rock that they've got a bar carts that overcome that presumption to get there so to overcome that presumption the evidence that's presented in the case is that they actually received it and they knew they received the income withholding or they passed it through their is a closer standard but that the knowing aspect of it i think is a standard of it's own and i think that standard means that if they if they have the information that says they're supposed to be doing something and they don't do it say well the statute would act that way which i'm arguing this case that as you've mentioned the courts determination that they only acted evidence is that determination is contrary to the manifest weight of the evidence i can tell you that with respect to that and the court's decision that they were only knowing in their failure after a certain period of time that after they receive and they that the law was not meant to cover negligence i think that's the case and isn't this negligent in that they got a notice and they thought they were doing what don't believe so my my assistant testified i think very specifically when she called and how often she called in the messages that she left the president pro se above she didn't mention th that and she didn't mention that i think she would have said specifically that she didn't consider explicit she no i don't think it is and the reason i say that is because she does come to the point where she says they acted knowingly in failing pay that's a factual determine as far as the obligation that's imposed on pay or when they receive the notice of nine receipt that's not a factual determination that's a legal determination they received that their knowledge they received that they failed to act on it they failed to act on it for sixteen payroll periods after that day so the question becomes at that point in time what's the penalty that's imposed by the statute as a result that they're failing to act and that's why i say here respective of weather they acted knowingly during the period of time from the time they received the i w hour up until the time that they received that notice and i see they received enough notice of not receipt and they didn't act out and the penalty that's didn't even attempt to prove it as always tempted to prove was that we sent them the notice and they failed to abide by the notice and the penalty that's to be imposed in that situation is one hundred dollars a day for every day that the notice of withholding income of holy water was not complied regardless of when it's found that their negligent or not negligent but knowing in their failure to pay regardless of the fact that they received the notice of nine receipt o there was a notice of non receipt sam and that's as far as we were concerned the operative point in time at which we're making this determination the notice of nine received was not acted on within the statutory period we're told and days and so the statutory penalty comes into play and th that on my side of the fence no i don't think you can read this regard i think it's there for a reason the statute says what it says it starts off with the notion that if they act knowingly there penalize and then later on in the statute i believe because an amendment that took place after the statute was adopted there's a provision that says if you receive a notice and on receipt you must act on it within ten days and what you have to do is pay the paid support statute and that's so you have to have the finding of knowing or the failure to respond to the notice one of the two things but once that happens i don't like to use the term relate back but it i just get on board broke it up i'm not sure that's fair but it is completely unfair absolutely this case is really about purposeful disregard and that is of course the standard by which courts have interpreted the term knowingly in the statute and so i'm going to be arguing both things in front of you the first thing i'm going to address is whether the income withholding order itself was a compliant income withholding or work out the argument from opposing counsel is that the law of the case is it was a compliant order have both to argue with your honor about what your decision means and you were the author but at the same time that's not how i read your decision the second are going to going to make is that the evidence clearly shows that manifest weight of the evidence clearly shows that the violation was not no this is really a case where we had two mistakes the first mistake was jeff mortimer the outside accounts a mistake because he failed to properly cope with the disbursement of the funds he testified to that his testimony was unequivocal cool hand luke failure to community both of these are at best negligence they're not purposeful and we are not purposefully disregarding or i'm going to address first the issue of dealing with the whether or not the way i believe your opinion reads i believe that the way the opinion reads is your honour's were holding and i quote the legislature did not intend to allow for a third party responded to contest the validity of an order of support underline the valid or that is from the underlying order of support our reading that the support act imposes a mandatory obligation to comply with a properly served with pulled pork the first case that was in front of this court was not a challenge to the propriety of the specific compliance of the folding it was a challenge to the issue of whether or not the fact that the withholding order did not properly attach the support was compliant with the statute in your honour's health that that's not an issue we could raise the issue we're raising instead deals with the as a result of strict compliance with all of the requirements of the statute i was on is required you can't have substantial compliance with the people's statute you have to have strict can trigger the penalties failure to strictly comply with the requirements subsection two section twenty c of the act and validates a notice of withholding as a matter of law and again that's what the court held in shorts and a plaintiff cannot maintain a cause of action based on an improper i suppose there would be around about don't believe that's our obligation i think that because it's a punitive statute penal statute the strict compliance comes on the part of the party sending us the door we cannot we you cannot simply with this case we did not moves over here but i think that in this case the proper procedure probably would have been to approach the court and say we received this withholding we're going to is improper but i don't believe that that necessarily means that you can still and and so you're in the position of saying we gotta know this we tried hard to know this but our own screw up preventative mind notice and then when they got the next notice we figured out something bad happened and we tried to comply with that and we did so now we want to go back and say well you know the first notice we got even the notice is that the purpose of notice so you knew what you were doing you knew what it was about you knew what you were supposed to do you have affected we conceded by the facts that you knew which we supposed to do but you didn't do it so now we go way back and beginning and say well it was a it in terms of sounding like rough justice your honor the obligation to prepare complying notices on the party serving as the follow ups later it was discovered to be really screwed up all the statute has to be very different lands in a non stature and so i think that the strict compliance requirement because the penalties are clearly draconian you know there are cases where it's a million dollars four hundred thousand dollars obligation and so i think that whenever the court views that the lens you have to use a strict compliance under the law and sometimes that may reach an equitable result frankly the massive penalties in some of these cases reach equally in equity so it's in the courts say based on the statutory scheme that's ok so opinions were very very well reasoned and now the trial court made very careful credibility determinations for example the trial judge held and i'm quoting from the second order mr flat is credible when he states that it was always his intention and expectation that income would be withheld from john's pay and properly for the test you well your honor that's a factual finding by the trial court that we intended to make to a holding after receiving the notice and so that intent shows that our disregard if there was a exactly and that's part of the problem in this case that was because of the miscommunication but my client doesn't do its own internal bill doesn't do its own internal payroll it farms that out to an account to as a separate software system and so that is the source of the second miscommunication because when mr flack received the notice he testified it was credited by the court that he had forwarded that notice to mr moore and mr mortimer did not receive it and so from that perspective i think the trial court's finding that we credibly said it was always our in our case your honor we'd never intended to not pay we actually made the holdings and intended to pay and thought we were ok but what happened was the message never came through from the accounts software to our office saying send the check and that's the process that and so it's just a miscommunication we have we always intended to comply and that's what the trial court found it was just a simple two mistakes and many of these cases are a mistake in this case there were two related mistakes but two mistakes do not equal purposefully ignoring a court order or purposefully disregarding our obligations under the law they were just mistakes in the statutes not designed to punish mistakes so in your view there should be no penalty at all it even who is going without for months which you sort of like the how this is shut down in terms of the people who are getting paid i mean that's one of the consequences and that's one of the reasons  donkey i gree one hundred percent ron you're absolutely correct and the reason that the act was adopted was to punish people who purposefully or knowingly disregard the sort and the difference i mean the statute uses the term knowingly and the courts that have think so that you get a second mistake or they're missing i don't think it's purposeful disregard if you thought someone else was taking care of a mistake your mistake and believing that work our company relies on outside account so  know what happened from point a to point b but the intent was not to throw the notice in the trash can i would agree that that would be purpose the intent was to forward the notice to mr moore and just for some reason that we don't know didn't get full but we had the correct inten problem was with the dress what it is though i believe there are other and i think that that creates a presumption that if we don't comply we were not complying knowing i think the sending of the notice the purpose for the notice requirement is to essentially you will look into it but maybe you don't work or baby it will i mean it can be this i don't think it's the standard i also don't think in this case the evidence shows that we're anywhere near that cavalier i think what happened in this case is we see russian i think that would have been a good direction to give iran but it was it was not good but i also don't think the failure to give that direction changes conduct from negligent to will for changes it to deliberate or changes it to knowing by evidence then the presumption vanishes and as a result of the presumption vanishing in this case it became their burden of proof to show that the violation was knowing there was no evidence whatsoever that the crowds were credited that showed that the finally to address on the last point your honor race at a point where the statutory penalty attaches that point can only be the point of knowledge and other words you know because the statute punishes a knowing violation statutory penalty doesn't is retroactive and if you had no knowledge and they were given knowledge for example if a notice is construed to be knowledge then the way that that notice would work is it would give you knowledge at that time it wouldn't create knowledge in your head receive the notice we've been discussing and her decision although i disagree with her decision is based on an interpretation of the statute that i believe is correct at least as far as when the penalty that the penalty only attaches when it becomes annoying let me just start with this you are the fact that boxcars miscommunication wherever it occurred heard either an internally or externally is irrelevant on our list from our side fans on our side of the fence it's not our problem how they communicate or miscommunicate it's only that we expect them to communicate they were sent in income withholding notice and they didn't abide by we call them on the phone bunch of times to remind them that we sent it to the find out what was going on and they ignore councils indicated that mr flats testimony was found credible by the or and it was very specifically but as you asked me before with respect to the testimony of all the witnesses in the case the trial court summarized all of them every single one she mentioned mr flat particularly only when she says mr flowers credible when he states that it was always his intention and expectation that income would be withheld from john to pay him properly forwarded to the s d u and i'm sure that that was his intention expectation and in fact when we talk about this miscommunication and how it occurred and what communication should have been made as a judge can act as indicated between mr flat when he receives this notice and mr mortimer when it eventually gets around to him that communication that you suggested was made by mr flagg it was i received this notice and on receipt i don't know what this says but somebody needs to do something about this get this fixed and then for another twenty two payroll periods after that nobody thinks that if we're here to argue about what what is contrary to the manifest weight of the evidence the facts of this case are we did call him a bunch of times before we sent him the notice maybe they got the message maybe they didn't get the message maybe they transmitted and maybe they didn't but we at least call them and then after six payroll periods at a lab just a month and a half withholding the money for this or the judge said no we're going to do goes through and i understand that but at that point they took the notice and then received they knew what it was they passed it along said take care of this we don't want this problem and nobody took care of it to make sure the problem didn't happen and then twenty two more payroll periods elapsed before they started to do something about it it was for at least four and leave five people period before that or when somebody internal to  bartending gravel recognized the fact at least that's what they testified about it the trial that they weren't paying withheld money over and told somebody else and buy parts in a gravel this is a problem we need to do something about it and they still didn't do anything about it whatever they after twenty  the evidence at the trial was when that date ran around whether it was may twenty third of may twenty sixth mr mortimer took a look at the notice and non greasy called me on the phone and said we can't do this we don't have this kind of money we can't pay this kind of a penalty that was made twenty six after they had received the income withholding order notice in december of the prior retroactive it's it's not that it's assessed in any way other than you would expect it to be assessed under the circumstances and as the legislature intended they received an income withholding notice they didn't comply with that the penalty extends from