Illinois Official Reports 

Appellate Court

Martinez v. Cook County Sheriff’s Office, 2017 IL App (3d) 160514

Appellate Court 

Caption

DENISE J. MARTINEZ, Plaintiff-Appellant, v. THE COOK 

COUNTY SHERIFF’S OFFICE and COOK COUNTY, ILLINOIS, 

Defendants-Appellees.

District & No. Third District

Docket No. 3-16-0514

Filed October 6, 2017

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 16-L-19; the Hon. 

John C. Anderson, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Anne M. Riegle, of Naperville, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Paul L. Fangman, 

Assistant State’s Attorney, of counsel), for appellees.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Holdridge and Justice Wright concurred in the 

judgment and opinion.
- 2 - 

 OPINION 

¶ 1 Plaintiff, Denise J. Martinez, brought an action under the Income Withholding for Support 

Act (Withholding Act) (750 ILCS 28/35 (West 2014)) against defendants, the Cook County 

sheriff’s office and Cook County, to obtain a money judgment of over $50,000 for defendants’ 

failure to withhold approximately $1600 in maintenance from plaintiff’s ex-husband’s 

paychecks. Defendants filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014)) 

motion to dismiss the complaint, alleging that plaintiff was not entitled to the money judgment 

requested because (1) the failure to withhold maintenance was the result of an innocent 

mistake on the part of one of defendants’ employees and was not knowingly done and (2) the 

claim for a money judgment was barred by the Local Governmental and Governmental 

Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West 2014)). After a 

hearing, the trial court agreed with defendants’ contentions and granted defendants’ motion to 

dismiss. Plaintiff appeals. We affirm the trial court’s judgment.

¶ 2 FACTS 

¶ 3 Plaintiff was married to Salomon Martinez. Salomon was employed by Cook County and 

worked for the sheriff’s office. Plaintiff and Salomon were divorced in May 2014. Pursuant to 

the judgment for dissolution of marriage that was entered, Salomon was ordered to pay child 

support for the parties’ two minor children and maintenance of $500 per month.

¶ 4 In May 2015, an amended support order was entered, terminating the child support 

payments but continuing the maintenance payment of $500 per month. The maintenance 

payment was to be automatically deducted from Salomon’s paycheck by his employer and sent 

directly to the Illinois State Disbursement Unit. 

¶ 5 In June 2015, Salomon faxed a notice of the change in withholding to the Cook County 

comptroller’s office. The notice consisted of several pages. The first page of the notice was a 

fax coversheet from Salomon, indicating that the documents he was sending to the comptroller 

were in regard to “[t]ermination of child support.” The second page of the notice was a letter 

from Salomon’s attorney, stating that Salomon’s child support payments had been terminated 

by the court in May 2015 (the May 2015 court date) and directing the comptroller’s office to 

“cease any current withholdings.” The third page of the notice was a one-page court order, 

which had been entered on the May 2015 court date. The text of the order was hand-printed and 

continued the underlying case to a date in June 2015 for a status hearing on plaintiff’s petition 

for postjudgment relief. The fourth and fifth pages of the notice were a two-page court order 

that had also been entered on the May 2015 court date. The text of the order was handwritten in 

cursive, was somewhat difficult to read, and stated, among other things, that child support for 

the two children was terminated. The order made no mention of Salomon’s maintenance 

obligation. The sixth through eleventh pages of the notice were an amended income 

withholding order for support from the same May 2015 court date. The order indicated that the 

amount to be withheld from Salomon’s paychecks for spousal maintenance was $500 per 

month ($230.77 biweekly) and that the child support for the two children had been terminated. 

¶ 6 The faxed notice was received by comptroller wage garnishment clerk Laura Murray. 

Murray promptly acted upon the information and terminated the withholding from Salomon’s 

paycheck for child support. In addition, however, Murray erroneously terminated the 

withholding from Salomon’s paycheck for spousal maintenance. As a result of the error, 
- 3 - 

plaintiff did not receive her spousal maintenance payments for the following seven dates in 

2015: June 5, June 19, July 3, July 17, July 31, August 14, and August 28. 

¶ 7 Toward the end of August 2015, plaintiff’s attorney faxed a letter to the Cook County 

sheriff’s office to notify them that plaintiff had not been receiving her spousal maintenance 

payments and that the attorney had filed a petition for rule to show cause in the underlying 

case. A copy of the amended income withholding order from the May 2015 court date was 

attached to the letter. The letter was apparently forwarded to the comptroller’s office and was 

received by the comptroller’s office shortly thereafter in September 2015.

¶ 8 Upon receiving the letter from the plaintiff’s attorney, comptroller clerk Murray promptly 

corrected the error that she had made and immediately reinstated the withholding from 

Salomon’s paycheck for monthly spousal maintenance. The withholding went into effect as of 

the next pay period. Salomon later paid to plaintiff the entire amount of spousal maintenance 

that the comptroller’s office had failed to withhold from his paychecks. 

¶ 9 In January 2016, plaintiff filed the instant action against defendants, alleging that 

defendants had knowingly failed to withhold the seven monthly maintenance payments and 

seeking the assessment of a statutory penalty against defendants of over $50,000 under section 

35(a) of the Withholding Act (see 750 ILCS 28/35(a) (West 2014) (providing for the 

imposition of a $100-per-day penalty on any payor who knowingly fails to follow a 

withholding order)). 

¶ 10 In April 2016, defendants filed a section 2-619(a)(9) motion to dismiss the complaint, 

alleging that dismissal was warranted because defendants had not knowingly violated the 

statute and because plaintiff’s claim was barred by the Tort Immunity Act. Attached to the 

motion were various supporting documents, including (1) the faxed notice that the 

comptroller’s office had received from Salomon and his attorney in June 2015, (2) the faxed 

letter that the comptroller’s office had received from plaintiff’s attorney in September 2015, 

and (3) an affidavit of comptroller clerk Laura Murray. In her affidavit, Murray attested to 

many of the facts set forth above. In addition to those facts and in explanation of how the error 

occurred, Murray stated further in her affidavit that as she reviewed the notice from Salomon 

and his attorney (1) she read on the cover page that the notice pertained to termination of child 

support, (2) she read the letter from Salomon’s attorney on the second page of the notice, 

which stated that Salomon’s obligation to pay child support was terminated by the May 2015 

court order and specifically requested that Murray “cease any current withholdings”, (3) she 

reviewed the court orders contained in the notice, (4) on the one court order, which was 

handwritten (in cursive) and difficult to read, she underlined the phrase “terminated,” (5) she 

stopped reviewing the notice at that point because she had come across the court order that 

Salomon and his attorney had both mentioned in the first two pages of the notice, and (6) she 

then changed the withholding amount for Salomon’s paycheck to zero. Murray also stated that 

(1) as soon as she received notice of the error from plaintiff’s attorney, she corrected the error, 

(2) the failure to withhold spousal maintenance was the result of a mistake and was not 

intentional, and (3) she reviewed and acted on the June 2015 notice to the best of her abilities, 

given the clear direction by Salomon’s attorney to “cease all withholdings,” which was 

supported by the cover page and the handwritten court order. 

¶ 11 Plaintiff filed a response and opposed the motion to dismiss, and defendants filed a reply to 

that response. In July 2016, a hearing was held on the motion. After listening to the arguments 

of the attorneys, the trial court took the motion under advisement. The trial court later issued a 
- 4 - 

written order granting defendants’ section 2-619(a)(9) motion to dismiss “for the reasons 

asserted in the motion itself,” and adopting “the rationale [and] arguments of the [defendants].” 

Plaintiff appealed. 

¶ 12 ANALYSIS 

¶ 13 On appeal, plaintiff argues that the trial court erred in granting defendants’ section 2-619 

motion to dismiss plaintiff’s complaint for money judgment (for the assessment of a section 35 

statutory penalty against defendants). Plaintiff asserts that the motion to dismiss should not 

have been granted because (1) defendants’ claim that the violation of the Withholding Act was 

not knowingly done was merely a negation of one of the elements of a violation of the statute 

and was not a proper affirmative matter to warrant dismissal under section 2-619(a)(9), (2) 

defendants failed to show that no set of facts could be proved that would entitle plaintiff to 

recover, as defendants were required to show to obtain a section 2-619 dismissal, (3) several 

material questions of fact existed, which should have prevented defendants from prevailing on 

their section 2-619 motion to dismiss, (4) Murray’s affidavit, which merely set forth the 

evidence that defendants would expect to present to contest the facts alleged in the plaintiff’s 

complaint (to show that the failure to withhold was not knowingly done) was insufficient to 

support a dismissal under section 2-619(a)(9), and (5) the Tort Immunity Act should not apply 

in this case to shield defendants from liability for the assessment of a statutory penalty under 

section 35 of the Withholding Act, since the task performed by Murray was not “official” or 

“discretionary” in nature, Murray’s conduct in failing to carefully review the documents that 

she had received constituted willful and wanton conduct, the penalty under section 35 of the 

Withholding Act is not punitive in nature, and there are several important public policy reasons 

for not applying the Tort Immunity Act in this context. For all the reasons stated, plaintiff asks 

that we reverse the trial court’s order granting defendants’ section 2-619 motion to dismiss the 

plaintiff’s complaint for money judgment and that we remand this case for further proceedings.

¶ 14 Defendants argue that the trial court’s ruling was proper and should be upheld. In support 

of that argument, defendants assert that (1) plaintiff did not state a claim for the assessment of 

a penalty against defendants under section 35 of the Withholding Act, since plaintiff did not 

(and could not) establish that a knowing failure to withhold maintenance had occurred, (2) 

although the evidence in this case gave rise to the statutory presumption of a knowing failure to 

withhold maintenance, defendants rebutted that presumption with Murray’s affidavit and 

showed that defendants had not knowingly failed to withhold maintenance, (3) the failure to 

withhold maintenance in this case was not knowingly or intentionally done but, rather, was the 

result of an unintentional and honest mistake, which occurred due to the multiple and 

conflicting documents that Murray had received from plaintiff’s ex-husband and his attorney 

and the direction that Murray had received from plaintiff’s ex-husband’s attorney to “cease any 

current withholdings”, (4) Murray acted promptly upon the notice that she had received from 

plaintiff’s ex-husband and his attorney to change the withholding initially and, upon receiving 

notice from plaintiff of the mistake, acted promptly to correct it, (5) case law supports the trial 

court’s conclusion that a statutory penalty under section 35 of the Withholding Act is not 

warranted in a situation, such as this, where the employer did not knowingly violate the 

Withholding Act, (6) no person interpreting the facts in this case could reasonably conclude 

that the actions of Murray constituted a purposeful disregard of the trial court’s withholding 

order, (7) Murray’s affidavit and the supporting documents do not contest any facts in the 
- 5 - 

plaintiff’s complaint but, instead, provide additional sworn testimony and documentary

evidence to rebut the statutory presumption of a knowing failure to withhold maintenance, (8) 

defendants’ claim that the violation was not knowingly done and the evidence presented in 

support of that claim were entirely appropriate and justify the trial court’s dismissal of the 

complaint under section 2-619(a)(9), (9) Murray was a public employee, not a public official, 

and was not involved in policymaking or the exercise of discretion, and plaintiff’s assertions of 

that nature should be disregarded, since defendants never claimed that immunity applied on 

that basis, (10) the assessment of a section 35 statutory penalty is punitive in nature, and the 

imposition of such a penalty against a public entity is barred by the Tort Immunity Act, (11) 

plaintiff’s characterization of Murray’s conduct as willful and wanton is misplaced and legally 

groundless and was asserted by plaintiff primarily to get around a possible defense that 

defendants have never asserted, and (12) although plaintiff claims that questions of material 

fact remain, there is no dispute as to the documents that Murray received in the June 2015 

faxed notice. For all of the reasons stated, defendants ask that we affirm the trial court’s grant 

of defendants’ section 2-619 motion to dismiss plaintiff’s complaint for money judgment. 

¶ 15 Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary 

dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 

(West 2014). The statute’s purpose is to provide litigants with a method for disposing of issues 

of law and easily proven issues of fact early in a case, often before discovery has been 

conducted. See Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003); Advocate 

Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section 

2-619 proceeding, the moving party admits the legal sufficiency of the complaint, but asserts 

an affirmative defense or other matter to defeat the nonmoving party’s claim. Van Meter, 207 

Ill. 2d at 367. Section 2-619 lists several different grounds for which an involuntary dismissal 

may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2014). Under subsection (a)(9), 

the subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim 

asserted against him if the claim is barred by other affirmative matter, which avoids the legal 

effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2014). An “affirmative matter” is 

something in the nature of a defense that negates the cause of action completely. Van Meter, 

207 Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must construe all 

of the pleadings and supporting documents in the light most favorable to the nonmoving party. 

Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de novo. Id. at 368. 

When de novo review applies, the appellate court performs the same analysis that the trial 

court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. A 

trial court’s grant of a motion to dismiss a complaint may be affirmed on any basis supported 

by the record. Board of Trustees of Community College, District No. 508 v. Coopers & 

Lybrand LLP, 296 Ill. App. 3d 538, 543 (1998). 

¶ 16 I. Application of Section 2-102 of the Tort Immunity Act 

¶ 17 In ruling on this appeal, we will address first whether section 2-102 of the Tort Immunity 

Act bars the imposition of a statutory penalty against defendants under section 35 of the 

Withholding Act because that determination completely resolves this appeal. In making that 

determination, for the sake of argument, we will assume that defendants’ failure to withhold 

the designated amount from Salomon’s paychecks was done knowingly. With that assumption 

in place, we consider the relevant statutory provisions. 
- 6 - 

¶ 18 Section 35 of the Withholding Act provides for the imposition of a $100-per-day penalty 

on any payor who knowingly fails to follow a withholding order. See 750 ILCS 28/35(a) (West 

2014). The purpose of the penalty provision is to punish parties that violate the Withholding 

Act and to discourage future violations. See In re Marriage of Murray, 2014 IL App (2d) 

121253, ¶ 47. The failure of a payor, on more than one occasion, to remit the amount withheld 

to the State Disbursement Unit within seven business days after the date the amount would 

have been paid or credited to the obligor creates a rebuttable presumption that the payor 

knowingly failed to pay over the amounts. See 750 ILCS 28/35(a) (West 2014); In re Marriage 

of Solomon, 2015 IL App (1st) 133048, ¶ 32. A separate violation of the Withholding Act 

occurs each time a payor knowingly fails to withhold the amount designated in the income 

withholding notice or fails to remit the amount withheld, and a statutory penalty under section 

35 is to be assessed for each violation. Murray, 2014 IL App (2d) 121253, ¶ 16. The statutory 

penalty per violation, however, may not exceed $10,000. 750 ILCS 28/35(a) (West 2014). The 

section 35 statutory penalty may be collected by the recipient by bringing a civil action against 

the payor. See id.; Murray, 2014 IL App (2d) 121253, ¶ 15.

¶ 19 The Tort Immunity Act’s purpose is to protect local public entities and public employees 

from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2014); 

Murray, 2014 IL App (2d) 121253, ¶ 36. “By providing immunity, the legislature sought to 

prevent public funds from being diverted from their intended purpose to the payment of 

damages claims.” Murray, 2014 IL App (2d) 121253, ¶ 36. In keeping with that legislative 

goal, section 2-102 of the Tort Immunity Act provides that: 

“Notwithstanding any other provision of law, a local public entity is not liable to pay 

punitive or exemplary damages in any action brought directly or indirectly against it by 

the injured party or a third party. In addition, no public official is liable to pay punitive 

or exemplary damages in any action arising out of an act or omission made by the 

public official while serving in an official executive, legislative, quasi-legislative or 

quasi-judicial capacity, brought directly or indirectly against him by the injured party 

or a third party.” 745 ILCS 10/2-102 (West 2014). 

Thus, under section 2-102, punitive damages may generally not be assessed against a local 

public entity, such as the county in the instant case (although plaintiff sued both the sheriff’s 

office and the county, the county is the actual payor and is the true party defendant in this case). 

See 745 ILCS 10/1-206, 2-102 (West 2014). Punitive damages are not awarded as 

compensation but, rather, serve to punish the offender and to deter the offender and others from 

committing similar acts of wrongdoing in the future. Murray, 2014 IL App (2d) 121253, ¶ 45 

(citing Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 80 (1994)). 

¶ 20 To our knowledge, there are only a few Illinois appellate court cases that have determined 

whether the statutory penalty under section 35 of the Withholding Act constitutes punitive 

damages for the purposes of the Tort Immunity Act. In the Murray case, cited above, the 

Second District of the Appellate Court found that the section 35 statutory penalty was punitive 

in nature and constituted punitive damages. Id. ¶ 47. The Murray court noted that the obvious 

purpose of allowing a plaintiff to recover the $100-per-day penalty for each knowing violation 

was to punish parties that violated the Withholding Act and to discourage future violations. Id.

The Murray court commented that while actual damages recoverable under section 35 were 

intended to make the plaintiff whole again, the $100-per-day penalty served to increase the 

award beyond merely compensation. Id. Finding that the section 35 statutory penalty 
- 7 - 

constituted punitive damages, the Murray court went on to conclude that section 2-102 of the 

Tort Immunity Act and section 35 of the Withholding Act could be read together harmoniously 

and that, pursuant to section 2-102 of the Tort Immunity Act, a section 35 statutory penalty 

could not be assessed against a local public entity. Id. ¶¶ 48, 54-55. In reaching that 

conclusion, the Murray court stated further that it would not disregard the phrase, 

“notwithstanding any other provision of law,” contained in section 2-102 of the Tort Immunity 

Act; that it was declining to read a limitation into section 2-102 that the legislature did not set 

forth in the statute; and that if the legislature had intended to deny governmental entities 

immunity for claims provided for in section 35 of the Withholding Act, the legislature could 

have explicitly stated as much. Id. ¶ 49. In addition, the Murray court distinguished an earlier 

ruling that the Second District Appellate Court had made in In re Marriage of Chen, 354 Ill. 

App. 3d 1004, 1022 (2004), in which the Second District declined to apply the due process 

criteria used for common law punitive damage claims to a statutory penalty assessed against an 

employer under section 35 of the Withholding Act and stated that the case before it involved a 

statutory penalty, rather than an award of punitive damages. Murray, 2014 IL App (2d) 

121253, ¶¶ 51-53. Commenting on the decision in Chen, the Murray court stated that the fact 

that the amount of common law punitive damages was uncertain and the amount of the section 

35 statutory penalty was definite did not render the former punitive and the latter 

compensatory for the purposes of section 2-102 of the Tort Immunity Act; rather, the overall 

character of both was punitive. Id. ¶ 53.

¶ 21 Another Illinois Appellate Court case that determined whether the section 35 statutory 

penalty constituted punitive damages is the Solomon case, cited above. See Solomon, 2015 IL 

App (1st) 133048, ¶ 26. In Solomon, the First District Appellate Court disagreed with the 

Second District’s conclusion in Murray and stated that the section 35 statutory penalty did not 

constitute punitive damages. Id. In reaching that conclusion, the Solomon court cited the 

statement made by the Second District Appellate Court in the earlier case of Chen, that the 

section 35 penalty was a statutory penalty and not an award of punitive damages. Id. The 

Solomon court went on to find, however, that section 2-102 immunity did not apply in that case 

because the defendant’s actions were ministerial in nature and not discretionary. Id. ¶ 30. 

Nevertheless, the Solomon court upheld the trial court’s refusal to impose a section 35 statutory 

penalty because the defendant’s failure to comply with the support order in that case resulted 

from an unintentional and honest mistake and not a knowing violation. Id. ¶¶ 34-35. 

¶ 22 Having reviewed Murray, Solomon, and Chen, we find the reasoning in Murray to be the 

most persuasive on this issue. The purpose of the section 35 statutory penalty is clearly to 

punish those who violate the Withholding Act and to deter future violations—not to 

compensate the recipient of support for the payments that he or she did not receive. See 

Murray, 2014 IL App (2d) 121253, ¶ 47. We must conclude, therefore, as the Murray court 

did, that the section 35 statutory penalty constitutes punitive damages for the purposes of 

section 2-102 of the Tort Immunity Act. See id.; see also Paulson, 268 Ill. App. 3d at 83 

(reaching a similar conclusion as to a portion of a treble damages provision under a different 

statute). It follows, then, that defendants have immunity under section 2-102 of the Tort 

Immunity Act from the section 35 statutory penalty in this case. See 745 ILCS 10/1-206, 2-102 

(West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55. The trial court, therefore, properly 

granted defendants’ section 2-619 motion to dismiss plaintiff’s complaint for a money 

judgment as the money judgment was barred by section 2-102 of the Tort Immunity Act. See 
- 8 - 

745 ILCS 10/1-206, 2-102 (West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55; Abruzzo 

v. City of Park Ridge, 231 Ill. 2d 324, 331-32 (2008) (recognizing that immunity under the Tort 

Immunity Act is a proper basis for a section 2-619(a)(9) dismissal). 

¶ 23 In reaching that conclusion, we must take a moment to comment upon some of the 

assertions to the contrary made by plaintiff in this appeal. From a statutory interpretation 

standpoint, neither statute at issue in this case (section 35 and section 2-102) is ambiguous, and 

we agree with the Murray court that the two statutes can be read together harmoniously, 

especially in light of the prefatory “notwithstanding any other provision of law” language in 

section 2-102. See Murray, 2014 IL App (2d) 121253, ¶ 48. Thus, there is no reason for us to 

weigh the different policy interests supporting each statute or to determine which policy 

interests should be deemed more important. 

¶ 24 In addition, we believe that plaintiff’s assertions regarding whether the wage garnishment 

clerk’s actions were done in an official capacity, whether the clerk’s conduct was discretionary 

or ministerial in nature, and whether the clerk’s actions constituted willful and wanton conduct 

are misplaced. Section 35 of the Withholding Act allows the recipient to bring a civil action 

against the payor to try to obtain the assessment of the statutory penalty for knowingly failing 

to withhold or remit support. 750 ILCS 28/35(a) (West 2014). The payor in this case is Cook 

County, a local public entity for the purposes of the Tort Immunity Act. See 745 ILCS 

10/1-206 (West 2014). Defendants asserted in a section 2-619(a)(9) motion to dismiss local 

public entity immunity under section 2-102 of the Tort Immunity Act as other affirmative 

matter that defeats plaintiff’s claim for a section 35 statutory penalty. Although the factual 

circumstances in this case involve the conduct of a public employee, who is a wage 

garnishment clerk for the county comptroller’s office, this case does not involve a suit brought 

against that public employee or any public official, as they are not the payor of support. 

Defendants, therefore, did not assert public official or public employee immunity as other 

affirmative matter defeating plaintiff’s claim as there was no reason for them to do so. Thus, 

questions as to whether the wage garnishment clerk’s actions were made while serving in an 

official capacity, whether they were discretionary or ministerial, or whether they constituted 

willful and wanton conduct have no relevance to our determination here. See, e.g., District No. 

508, 296 Ill. App. 3d at 544 (stating that the critical question to consider when application of 

the doctrine of public official immunity is asserted is whether the official’s or employee’s 

conduct was discretionary or merely ministerial). 

¶ 25 II. Other Assertions Made by the Parties 

¶ 26 Because we have determined that plaintiff’s claim for the assessment of a section 35 

statutory penalty against defendants was barred by section 2-102 of the Tort Immunity Act and 

that defendants’ section 2-619(a)(9) motion to dismiss was properly granted on that basis, we 

need not address the other assertions made by the parties in support of their arguments on 

appeal. Most notably, we do not decide, and take no position on, the question of whether the 

failure to withhold maintenance in this case was done knowingly for purposes of the section 35 

statutory penalty or the question of whether the lack of a knowing violation may properly be 

raised as other affirmative matter in a section 2-619(a)(9) motion to dismiss. 
- 9 - 

¶ 27 CONCLUSION 

¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Will County. 

¶ 29 Affirmed.