No. 2-09-0594 Filed: 5-28-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re MARRIAGE OF WENDY ) Appeal f rom the Cir

cuit Court STOCKTON, n/k/a Wendy Sharp, ) of De Ka lb Co un ty. ) Petitioner and Plaint

iff-App ellant, )

) and ) No. 94--D--25 ) JOHN STOCKTON, ) ) Respondent ) ) (Rockwe ll Trucki

ng, I nc., and Mark Da vis, ) Honorab le Indiv idually and as Pre sident of

Rockwell ) Ja me s D on ne ll y, Trucking, Inc ., Defendants-Appellees). ) Judge , Pres idin g.

_____________________________________________________________________________ JUSTICE JORGENSEN d

elivere d the opini on of the c ourt: Petitioner-appellant

Wendy Stockton and resp ondent John Stockton divorced in 1994. At that time, John was employed by defendant-appellee Rockwell Trucking , Inc. (Rockwell). In 1994, the court entered a withholding order under the Income Withholding for Support Act (Withholding Ac t) (750 IL CS 28/1 et seq. (West 2006)), mandating Rockwell to withhold $60 per week fro m John 's income. John left Rockwell in June 1995. At that time, nine outstanding payments remained under the 1994 withholding order, totaling $540. John ret urned to Rockwell in December 1997. On January 9, 1998, the court enter ed th e withholding order a

t issue i n this appe al (the 1 998 withho lding or der), ma ndating Rockwell

to withhold $120 per week from John's income. On March 31, 2000, John again left Rockwell. OnNo. 2--09--0594

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April 3, 200 0, a wee

k in advan

ce of its A

pril 11, 20 00, due da

te, Rockw ell submitte d its las t withheld payment under

the 1998 withholding order. Althoug h John aga

in returned to Rock

well in 2002, this D ecembe

r 1997 to Ma

rch 2000 employ ment term

is at the c enter of

the instan

t appeal

. OnJanuary 8, 2007, Wendy filed a complaint under the 1998 withholding order, alleging that Rockwell failed to withhold a

nd submit pa

yme nts in a time ly

manner, hence accruing

a number of penalty days. Wendy

further argued

that at le ast

one outsta

nding pa yme nt continued to cau se penal ty da ys to accrue. The parties disagr eed as to whethe r one outstan ding pay ment remained under the 1998 with hold ing ord er or wh ether, despi te Roc kwell 's untimeline ss, it had ultimately submitted a

ll pay ments due and cured any arrearage unde

r the 1998 withholding order. Th e cause of this disagreement

was a "problematic line" on a printout from the State Disburse ment Unit (SDU printout), which detailed a certain disbursement, listed as due January 5, 2000 (the contested disbursement). The trial court found t hat the record did not show that an outstanding pay ment remai ned under the 1998 withholding order (and implicitly found that penalties therefore did n o t continue to accrue bey

ond the term of John's employment), f ound that the last payment was made April3, 2000, found that either a two-y ear or a five-y

ear statute of limitations applied, and found that, the refore , Wendy

's acti on was time

barred . Wendy

appeale d. We aff

irm. I. BACKGROUND Wendy and John

were married in 1988. They had two children, Tiffany (born February

2, 1990) and Colton

(born De cember

8, 1992). The par

ties divor ced in 1994. Wendy was named the residential custodia

n and John wa s to pay

child su pp ort. At the time, John was employed by Rockwell

. Defend

ant-app ellee Ma

rk Davis was the pr

esident o f Rockwe ll and was a lso Jo hn's brother-in-law. Aside from onecontested pay ment to be

elabora ted below , the par

ties stipul ate toNo. 2--09--0594

-3-

the following facts regarding John's employment with Rockwel l and withheld pa ym ents by Rockwell to the State Disbursement Unit (SDU). The withheld pay ments were tracked by

both the SDU (and informationregarding the disbursements wa s contained in the S DU p rintout) a nd the De

Kalb County c lerk 's offi ce (and infor mati on regar ding t he dis burse ments was con taine d in t he cler k's printout). OnJuly 1, 1994, Rockwell received via c ertified mail a withholding order requ iring it to withhold $60 per week from John's pay check. In June 1995, John left Rockwell. At that

time, there

were nine outstanding pay ments of $60, totaling $540, that had not been submitted by R ockwell t o the SDU. From June 1995 to December 1 997 , John worked for employers othe r than Rockwell, and these em ployers rec eived ne

w withhold

ing orde rs. InDecember

1997, John returned to Rockwell's employ a fter 21⁄2 ye ars. On January 9, 1998, Rockwell receiv ed a new

withholdin

g orde r, this time

requirin g it to withhold $120 per week from John 's payche ck. John again left Rockwell's employ on March 31, 2000. During this two-ye ar-plus employment

term and under the 1998 withholdi ng o rder, Rockwell paid a total of $13,800 to the SDU, with the last payment being submitted April 3, 2000. From April 2000 to December 2002, John worked for at least three new companie s, each of whichre ceived a n ew wit hhol ding n otice . In Decem ber 20 02, J ohn aga in ret urned to Ro ckwel l's employ, but Rockwell did not rece ive a new withholding notice. On September 20, 2005, Wendy filed a "petition for failure to withhold child support against Rockwell," alleging that Rockwell had failed to wi thho ld in come fr om J ohn's payche cks since July 2004. Rockwell responded that it had

never received a withholding order for the relevant employ

ment term. Wendy initially argued thatNo. 2--09--0594

-4-

the 1998 withholding orde r continue d to be bind ing on Roc

kwell but, in May

2006, ultimately moved to voluntarily dismiss her action without prejudice and the trial court granted

the motion. 735 IL CS 5/2--1009 (West 2006). OnJanuary 8, 2007, Wendy filed a complaint for pe nalties under the 1998 withholding order, alleging that Rockw

ell failed to withhold and submit payments in a timely manner, henc e accruing

a nu mb er of

pe na lt y da ys beginning

in 1998. The penalty sy

stem upon which Wendy's c omplaint relied works as follows. Under the Withholding Act, the p ayor-employe

r is subjec t to a $100 p enalty for each day the amount designated in the withholding order is not paid. 750 I LCS 28/35(a) (West 2006). If two pay

ments are outstanding, then the employ er is subject to two $100 penalties for each day that both pay

ments remain outstanding. In re Marriag e of Miller , 227 Ill. 2d 185, 194 (2007). OnApril 16, 2009, after several continuancesand procedural motions, the parties presented writtenarguments to the court. The thrust of the parties' writtenarguments centered around whether

one outstanding payme

nt remained under the 1998 withholding order for the employment period of January 9, 1998, to March 31, 2000. According to the parties, if no outstanding payme nts remained, then359 penalty day

s would have accrued by

April 11, 2000, in the manner set forth above, and the p en alty amount would be "locked in" at $35,900; however, if one outstanding payme nt remained, thenpenalty day

s continue to accrue. The parties then debate d whethe r any st atute of limitations applied t o the act ion for pe nalties. However, though she did not mention it in her complain t, Wendy also cont ested in her Apr il 16, 2009, written argument that penalty days acc ruing from

the nine outstanding pay

ments under the 1994 withhol ding ord

er should "carr y ov er" to the 1998 wit

hholding order, t hereby resulting in multiple outstanding payme

nts and causing21 ,0 00 pe na lt y da ys to accrue, for a total penalty amountNo. 2--09--0594

-5-

of $2.1 mi l lion. On this point, Rockwell responded that outstanding payments under the 1994 withholding order and the penalty days accruing therefrom at best gave rise to a separate cause of actionand should not be considered inthe instantcause, in which the complaint referenced only the 1998 withholding order and penalty days beginning in 1998. At the hearing that same day, Wendy made concessions indicating that she no longer sought the trial court's consideration of whether obligations under the 1994 withholding order carried over to the 1998 with h olding order, which would have caused multiple outstanding payments. The following exchange took place at the hearing:

"THE COURT: *** [L]et me back up a second. You're arguing about one payment? ATTORNEY [for Wendy]: Yes, Your Honor." Thereafter, the dispute at the hearing centered around whether Rockwell had made all of its required payments, late or not , under the 1998 withholding order, or whether one outstanding payment remained. The source of this disp ute is one prob lematic line on the SDU printout. The SDU printout chronologically lists disbu rsements of withheld payments from October 8, 1999, to March 1, 2006. Each line in the SDU printout sets forth details of one disbursement from the SDU to Wendy. Specifically, each line sets forth the collection date ( i.e. , the due date), the datethe SDU received the payment from John's employer, the date the SD U distributed the payment to Wendy, the payment and distribution amount, and the workgroup (or batch number). The parties stipulated

that, if the disbursement detailed in the problematic line was credited to Rockwell, then only 359 penalty days accrued und er the 1998 withholding order for John's December

1997 to March 2000 employment term and no outstanding payments remain (scenario 1). The parties also stipulated that, if the disbursement detailed in the problematic line was notcreditedNo. 2--09--0594

-6-

to Rockwell , then 368 penalty days accru ed und er the 1 998 wi thho ldin g order f or Jo hn's December 1997 to March 2000 employment term, one outstanding payment rema

ins, and penalty day

s continue to accrue (scenario 2). At the hearing, Rockwell argue d that, under either scenario 1 ( i.e. , 359 pena lty da ys and no outstanding payments) or sc enario 2 ( i.e. , one outstanding pay ment with penalty day s continui

ng to

a ccrue), Wendy's cla

im was time barred. The Withholding Act does not set forth a stat ute o f limitations

. However, Rockwell contended that the statute of lim itations is either: (1) two year s under section 13--202 of the Code of Civil Proce dure (th e Code) ( 735 I LCS 5/13--202 (West 2006)) (setting forth a two-ye ar statute of limitations for a statutory penalty); or (2)

five yea rs under section 13-- 205 of

the Code (735 IL CS 5/13--205 (West 2006)) (setting forth a five-y ear statute of limitations f

or civil actions for which there is no other limitations period). Rockwell posited that the statute of

limitations

began to run the

date the fina

l withheld payment was due , April 11, 2000, and that t he statute of limitati ons, ther

efore, lapsed A

pril 11, 20 05, at the

latest. Wendy responded that her

action was not

time barred under either scenario 1 or sc enario 2, because either the limitations period for colle cting child suppor t is 20 y ears (c iting 735 IL CS 5/13--218 (West 2006)) or there is no limitations period (citing 735 ILCS 5/12--108 (West 2006)). Al te rn at iv el y, Wendy responded that, un der sce nario 2, n one of the possible li

mitations p eriods c ould have begun to run because, due to the outstanding pa yment, Rockwell continued to accrue penalty da ys even after John

left Rock well, and , accor

ding to We

ndy , the acc

rual of p enalty

days constituted a continuing violation that prevented the start of the limitations period. On May 7, 2 009, t he tri al cou rt ent ered a w ritt en ord er, fi ndin g:No. 2--09--0594

-7- "A. F rom the re cords pr ovided, it cannot be

determined that th e [disburse men t detailed in the problematic line of the SDU printout] shoul d not b e cre dited to [Roc kwel l], and B. There are two p rovisions of the Cod

e of Civil Pr

ocedure that may contain a statute of limitations for this action--the 2-yea r statute of limitations in section 13--202 or the 5-ye ar statute of limitations in section 13--20[5], and C. [John's] last day of work wa s Marc h 31, 2000 and the last payment by the defendants to the SDU was April 3, 2000, and D. The earliest this action was filed was September 20, 2005. Co ns eq ue nt ly, the Court holds that regardless of the statute of limitations applied, the instant action is barred." Becau se the trial court did not find that an outstanding pay ment remained, it did not reach the analysis require d by scenar io 2 ( i.e. , a determination of when the statute of limitations began to

run if there had been

an outstanding pay

ment and penalty da

ys continued to acc

rue after John lef

t Rockwell ). Wendy

appeals

. II. AN ALYS IS Wendy argues that the trial court erre d in "crediting" Rockwell with th e disbursement detailed in th e prob lemat ic li ne of t he SDU print out. In this rega rd, W endy cha llenges the trial court 's finding "A," which stated : "Fr om the records provided, it cannot be determined that the [disbursementdetailed

in the pro

blematic line of the

SDU printo

ut] should not be cre dited to [Rockwell]." In other words, the trial cour t found that nothi ng in the rec ord indicated that an outstanding payme

nt remained under the 1998 withholding order.No. 2--09--0594

-8-

Wendy init iall y complai ns th at the trial judge a ppli ed the wrong stand ard of pro of . She points to an isolated comment that the trial judge made at the hearin g when he e

xpressed h

is frustration with the SDUprintout, stating he could not "absolutely conclude" that Rockwell failed to make a pa

yme nt under t he 1998 wi

thholding order. I ndeed, in an ordina

ry civil cas e, beca

use there are no sound reasons for fav or ing one party over another, the party

with the burden of persuasion

must prove his case by a

preponderance of

the evidence. Hanson-Suminski v. Rohrman Midwest Motors, Inc. , 386 I ll. App. 3d 585, 592 (2008). A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not true. Hanson-Suminski , 386 Ill. App. 3d at 592. Here, upon re view of the ent ire record , we conclude that the trial court applied the correct standard of proof. See In re Marri age of Riz zo , 9 5 Ill. App. 3d 636, 644-45 (1981) (trial court's isolated statement that the children at issue were of tender y ears did not mean that the trial court improperly

invoked the tender-y

ears doctrine rather than the best-interest standard when making its custody dec ision). The trial court's written order i s consiste nt with adherence

to the preponderance-of-the-e vidence standard, where i t essentially stated that nothing in the r ecord indicated that an outstanding pay ment remained under the 1998 withholding order. Inany case, the gene

ral standard of review

where the evidence

before the trial court consisted of documents is that the court of review is not bound by the trial court's finding and may make an independent

determination

on the facts. Addison Insurance Co. v. Fa y , 232 Ill. 2d 446, 453 (2009); Polo National Bank v. Lester, 183 I ll. App. 3d 411, 414 ( 1989). Whe

re extrins ic evide

nce is introduced

to aid in interpreting a document, the reviewing court will not reverse the trialco urt unless the trial

court' s determi

nation isagainst the manifest weight of the evide nce. Polo National Bank , 183 Ill. App. 3d at 414. Here, with little to no reliance on e xtrinsic evidence, the trial courtNo. 2--09--0594

-9-

considered

two documents in determining whether an outstanding payment rema

ined under

the 1998 withholdin

g orde r: the SDU

printout a

nd the cle rk's pr intout. We agree that therecords do not show any outstanding payme

nt under the 1998 withholding order. Again, the SDU pr intout chr onologic ally

list s disbursements of withheld payments from October 8, 1999, to

March 1, 2006. As noted, eac h line in the SDU printout sets forth details of one disbursement from the SDUto Wendy. Each line sets forth the collection date ( i.e. , the due date), the date the SDU received the pay ment from Joh n' s e mp lo ye r, the date the SDU distributed the payment to Wendy, the payment and distribution amount, and the wor kgroup (or batch number). So, using the terminology the parties used in their briefs, a typical line in the printout looks like this: Due Date Activity Payment/Distribution Amount Batch 11/26/1999 Rec. from John 11/30/1999 $120/$120 17434

Disb. to Wendy 11/30/1999 The information in this line shows that the payment due No ve mb er 26 , 1 99 9, wa s m ad e f ou r d ays late, onNovember 30, 1999, but there is nothing about the information that makes one question the accuracy of the information itself. In c ontrast, the probl ematic li ne in the SDU printout

looked lik

e this: Due Date Activity Payment/Distribution Amount Batch 01/05/200 0 Rec. from John 1/09/200 1 $120/$120 194917

Disb. to Wendy 1/10/200 1 (Emphases added to the problematic portions.) Inorder to understand

why this line is problematic, we plac e it in the context it appeared on the SDU printout:No. 2--09--0594

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Due Date Activity Payment/Distribution Amount Batch 12/24/1999 Rec. from John 1/03/2000 $120/$120 30032 [5 digits]

Disb. to Wendy 1/04/2000 12/31/1999 Rec. from John 1/08/2000 $120/$120 33988 [5 digits]

Disb. to Wendy 1/08/2000 01/05/200 0 Rec. from John 1/09/200 1 $120/$120 194917 [ 6 digits]

Disb. to Wendy 1/10/200 1 01/07/2000 Rec. from John 1/11/2000 $120/$120 36278 [5 digits]

Disb. to Wendy 1/12/2000 01/14/2000 Rec. from John 1/19/2000 $120/$120 39502 [5 digits]

Disb. to Wendy 1/19/2000 (Emphases added to the proble matic portions.) The subsequent lines in the above-reference d sequence have duedates spaced approxima

tely every se ve n d ays apart (January 21, January 28, Febr

uary 4, F ebruary

10, February

18, February

25, March 3, March 10, March

17, March 24, and March 31, 2000) , throug

h John's la st work da

te with Rockwell

. The prob lematic line creates confusion because it does not fit in the sequenc e. For example: (1) the d

ue date f alls only tw o d ays prior to the next due date (which is strange because the other due dates in the sequenc e are sp aced at weekly interva ls); (2) t he due da te is January 5, 2000, butthe payment date

is January 10, 200 1 (which is strang e becau se Ro ckwell continued to make pay ments after the January

5, 2000, due date but receive d credit for the subsequent due dates of January 7, 2000, January 14, 2000, January 21, 2000, et cet era , before r eceiving credit for the January 5, 2000, due date); and (3) the six -digit b atch numb er falls out of seq

uence ( which is noteworthy

because if the problematic line were re moved from

the sequence, the remaining, five

digit batch numbers would fall in numerical order--30002, 33988, 36278, 39502, et cetera ).No. 2--09--0594

-11-

Wendy contends that the problematic line really should be placed farther up in the sequence, amidst payments made inlate 2000 and early 2001, after John left Rockwell and began to work for a series of different employers: Due Date Activity Payment/Distribution Amount Batch 12/22/2000 Rec. from John 12/27/2000 $360/$360 189626 [6 digits]

Disb. to Wendy 1/08/2000 01/05/2000 Rec. from John 1/09/2001 $120/$120 194917 [6 digits]

Disb. to Wendy 1/10/2001 01/12/2001 Rec. from John 1/17/2001 $120/$120 197779 [6 digits]

Disb. to Wendy 1/17/2001 (Emphases added to the problematic portions.) That the probl ematic line should be inserted farther up in the sequence is supported by a corresponding

printout from the De Kalb County clerk's office (again, clerk's printout). The clerk's printoutdetails disbursements based on the date the payment was distributed to Wendy; it does not contain quite as much information as the SDU printout, though it details the same disbursements. The distribution sequence for early 2000 is as follows: Distribution No. Date Check In/Out Amount 169 1/04/2000 $120 170 1/08/2000 $120 171 1/12/2000 $120 172 1/19/2000 $120 As Wendy notes, the informationcontained in the problematic line on the SDU printoutdoes notappear in the clerk's printout seque nce of payments distributed in early 2000. However, the clerk's printoutsequence of distributions from early 2000, though it contains less information, does mirror the SDU printout se quence from early 2000, notwithstanding the problematic line. ForNo. 2--09--0594

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example, both printouts show that $120 payments were distributed to Wendy on January 4, January 8, January 12, and January 19, 2000. The distribution sequence in the clerk's printout in late 2000 and early 2001 is as follows: Distribution No. Date Check In/Out Amount 204 12/28/2000 $360 205 1/10/2001 $120 206 1/17/2001 $120 The information contained in the problematic line on the SDU print out does ap pear in the clerk's printoutin early

2001. Both the SDU printout and the clerk's printout show that a $120 payment was distributed to Wendy on January 10, 2001. It seems to us that the most l ikely explana tion is that the "0" in the due date of January 5, 200 0 , is a typographical error. If the due date was instead January 5, 200 1 , then the problematic line would be removed from its current place in the sequence of payments made by Rockwell

under the 1998 withholding order in late 1999 and early 2000, leaving the due dates evenly spaced at one week intervals, the distribution dates in chro nolog ical order, and the batch numbers in numerical order. The problematic line would be inserted farther up in the sequence, amidst payments due from subsequent

employers in late 2000 an d ea rly 2001, with due dates, distribution dates, and batch numbers likewise falling into chronological and numerical order. Wendy's po sit ion that the problematic line should be moved up in the sequence amidst payments due inlate 2000 and early 2001, and, therefore, reflect a payment made by a subsequent employer, is inconsistent with her position that Rockwell was required to remit a payment onthat date. In other words, it is unlikely that there ever was a January 5, 2000, due date under the 1998No. 2--09--0594

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withholdin

g orde r for whi ch Rockw ell was acc oun tab le. If the problematic line assumed its place farther up in the sequence amidst the payments due in late 2000 a nd early 2001, it would not only tend to show that the payment should b e attr ibuted to a n employ er subse quent to Ro ckwell, b ut it would als o t end to sho w th at a n em pl oyer sub seq uen t t o R ock wel l wa s t he o bl iga ted payo r. If Rockwell was not the obligated pay or, then it did not have an outstandingpayment under the 1998 withholding order. We understa

nd that the

parties s et up an " eith er

/or" stipulation for the court regarding the disbur se ment

detailed in the pro

blematic line: eith er the di sburseme nt should be

credite d to Rockwell and no outstandi

ng pay ments should be found to remain, or the disbursement should not be credited to Roc kwell an d one outstanding payme nt should be found to remain. However, the "stipulation" to either

of two alternative scenarios does not restrict this court's analysis. It seems that there is atleast one

flaw in th e partie s' stipul ation--t heir ded uction tha t if the disbursement se

t forth inthe problematic line is not credited to Rockwell, thenone outsta nding pa yme nt remain s. It i s also possible, as the record seems to indicate, that Rockwell was not responsi ble for that pay

ment in the first place. The threshold question this case turns on is not whether the distribution in the p roblem atic line should be credited to Rockwell, but whether the information contained in the problema tic line indicates that an outstanding pay ment remains under the 1998 withholding order. It is the answer to this questionthat dictates the parameters of our statute-of-limitations analy sis, and we conclude that no outstanding pay ment remains under the 1998 withholding order. The Withholding Act does not set forth a statute o f limi tations for an action to collect an

arreara ge amount

or for a n action t o collec t penaltie s. We review de novo the appli cation of a statuteNo. 2--09--0594

1 As an alter

native, We

ndy sugge sts that we

apply a 20-y ear sta tute of lim

itations. Pr

ior to July 1, 1997, the statute of limitations governing enforcement of a child support judgment require d that an action be brought

within 20 years ( 735 IL CS 5/13--218 (West 1996)). However, the July 1, 1997, amendme

nt to secti on 12--10 8 of the Co de, allow ing chil d support j udgmen ts to be enforced at any time, is applied retroa ctively where

the previously applica

ble 20-yea

r statute of limitations has notrun. In re Marriage of Davenport , 388 Ill. App. 3d 988, 993 (2009 ). Thus, if the statute of limitations governing child support judgments co uld be app li ed to the instant action, the relevant limitations period would be that set forth in section 12--108. -14- of limitations , as it is a question of law. First Baptist Ch

urch of L ombard v. Toll Hig

hway Authority

, 301 Ill. App. 3d 533, 540 (1998). Wendy argues that this court should apply the limitations period set forth for child support judgmen ts. The applicable limitations period for child support judgments was first set forth in a 1997 amen dment t o section 12--108 o f the Code , which now states i n part tha t " [ c]hild support judgm ents, includ ing those arising by o peration of law, may

be enfor ced at a ny t ime." 73 5 ILCS 5/12--108 (West 2006); see Pub. Act 90--18, §90, eff. July 1, 1997. 1 We agree with Ro c kwell that section 12--108 is not applicable, because this case does not involve a child supp ort judg

ment. A co

urt ente rs a child support ju

dgment w hen it orders either or both parents owing a duty

of support to a child to pay support for that child. 750

IL CS 5/505 (We st 2006). Rockwell

does not owe Wendy

child supp ort; John owes Wendy child support. Moreove r, Wendy is not seeking arrearag e plus interest, such as one might seek in an action to enforce a child support ju

dgment; she is see

king sta tutory penaltie s under the Withholdin g Act.No. 2--09--0594

-15-

Rockwell argue s that the s tatuteof limitations is either: (1) two ye ars under section 13--202 of the Code (73 5 IL CS 5/13--202 (West 2006)) ("Actions *** for a statutory penalty *** shall be commenced within 2 ye ars next after the cause of action accrued"); or (2) five yea rs under section 13--205 of t he Code (735 IL CS 5/13--205 (West 2006)) ("all civil actions not otherwise provided for, shall be c ommence d within 5 years ne

xt after the cause of action accrued" ). Alth ough W endy's action would be time barred under either limitations period, we find that the appropriate statute of limitations

is two y ears. A statutory provis ion provid es for a "s ta tu to ry p enalty," requ iring th at an action for sa id penalty be commenced within two years after the action accr ues, if it imposes automatic liability for

a vi ol at io n o f i ts te rm s a nd th e a mo un t o f t he li ab il it y i s predetermined by the act a

nd imposed withoutactual damages suffere d by the plaintiff. McDonald's Corp. v. Levine , 108 Ill. App. 3d 732, 738 (1982) (interpreting what is now section 13--202). U nder a pen al statu

te, liability is imposed automatic ally

when a violation of the statute is established. M cDonal d's , 108 Ill. App. 3d at 738. The object

of the sta tute is clearly to inflict punishment on the party violating it, though a remedy may likewise be afforded to those having an interest in observance of the statute. Superior Laundry & Linen Supply

Co. v. Edmanson-Bock Caterers, I nc. , 11 Ill. App. 2d 132, 133 (1956). The $1 00 -p er -d ay l ia bi li ty a t i ss ue he re is im po se d a ut om at ic al ly each da y th e amount designated in the withholding notice is not paid. See 750 I LCS 28/35(a) (West 2006). The $100- per-day amount is predetermined; it is not related to actual damages ( e.g. , arrearage plus intere st). Therefore, the $35,900 is a "statutory pe nalty," such tha

tanaction for said penalty must commence within two years a

fter the action accrues. See also Miller , 227 I ll. 2d at 194 (incidentally re ferringNo. 2--09--0594

-16-

to penaltie s imposed u

nder sec ti on 35(a) of

the Withhold

ing Act as statutory

penaltie s); Grams v. Autozone, Inc. , 319 Ill. App. 3d 567, 571 (2001) (same). Here, Rockwell accumulated a $35,900 statutory penalty for a series of late payme nts under the 1998 withholding order. Rockwell's last pay ment under t he 1998 withholding order was due April11, 2000, and no outstanding pay ments remained. The action had clearly

accrued by

this point. Anaction f

or a statu tory penalt y mu st be commenced within two ye ars after the cause of action accrued. 735 I LCS 5/1 3--202 ( West 2006). Here, Wendy did not file any action a gainst Ro ckwell

un der the Withholding

Act until Se

ptember 20, 2005; she did not f

ile an action aga

inst Rockw ell pertainingspecific ally

to penalties under the 1998 withholding order until January 8, 2007. Hence, Wendy's ac

tion is time barred. Wendy also arg ues on ap peal tha t the tria l court e rred in failing to find that the 9 remaining $60 payments under the

1994 withholding order "carried ove r" to the 1998 withholding order, thus resulting in 41⁄2 outstanding $120 payme nts under the 1998 withholding order. First, we note that Wendy did not re quest in he

r compla int t hat penalty da

ys from the 1994 withholding or der carry

over. On April 16, 2009, she raised th is argu ment for t he first t ime in a written argument submitted t o the tri al court . Howeve r, that sa me day , at the he aring, Wendy abandoned any

hint of this argume nt, allowing the entire debate to center around the problematic line in the SDU printout and whether the problematic line indi cated th at one outstanding pay ment remained under the 1998 with hold ing ord er. Th e foll owing e xcha nge too k plac e at th e heari ng:

"THE COURT: *** [L]et me back up a second. You're arguin g about one pay ment? ATTORNEY [for Wendy]: Yes, Your Honor. * * *No. 2--09--0594

-17- THE CO UR T: Bu t m y po int is that I thought y ou were in agreement that if [the January 5, 2000, contested disbursement did not indicate an outstanding pay ment under the 1998 withhol ding order ], [then ] Rockwell has paid every thing it's supposed to pay even though it didn't pay

it on time. ATTORNEY

[for Wendy

]: Correc t. THE COURT: And, therefore, there would be no pena lties after the ye ar 2000. ATTORNEY [for Wendy]: Yes." The question of whether obligations under the 1994 withholding order carried over to the 1998 withholding order was never decided by t he trial c ourt. Wend

y c annot now

claim that the trial court erred i n failing to find that the 1994 obligations carried over where she effectively

abandoned this argument at the hearing. G enerally, a n issue not presented

before the trialcourt cannot be raised for the first time on appeal. Coleman v. Hinsdale Emergency Medical Corp. , 108 Ill. App. 3d 525, 527 (1982). Inany case, ou r conside ration of this issue on the mer

its would result in preservation of the trial court 's ruling. Wendy does not pre sent a compelling argument on appea l that obligations from the 1994 withholding order should carry over to the 1998 withholding order. First, c ases Wend y cites address a single

with hold ing o rder and d o not touch upon the subject of two separa te withholding orders served y ears apart upon the same employ er. See Miller , 227 Ill. 2d at 188-192; Grams , 319 Ill. App. 3d at 568-69. Second, " [n]ew service of a n income w

ithholding

notice is not required in order

to resume withholding of

income in

the case of an obli gor with

respect to whom an

income withholding notice

was previo usly serv ed on the payor if withholding of income was terminated because of anNo. 2--09--0594

-18-

interruption in the obligor's employ ment of le ss th an 18 0 d ays ." (Emphasis added.) 750 ILC S 28/20(i)(West 2006). Here, John left Rockwe ll in June 1995. Becau se John did no t return t o Rockw ell's employ

with in 180 days, the 1994 withholding order was no longer in eff ect. Upon John 's return to Rockwell over two y ears later, Rockwell was served with a new withholding order, which contained a new amount to be withheld. Wend y's argument that obligations under the 199 4 withholdi ng orde r should c arry

over to the 1998 withholding order functions as an alternative arg ument that outstanding pay

ments remain under the 1998 withholding order, andit is not successful. Wendy needed to e stablish that an outstanding payment rema ined in order for this court to consider her arg ument that the outstanding payment continues to accrue penalties and, therefor e, prevents the statute of limitations from runni ng. However, because no outstanding pay ments remain on the 1998 withholding order, we leave for another

court to determine the effect on the statute of limitations of an outstanding pay ment that cont inues to a ccrue p enalties

. III. CONCL USION For the afor ementioned reas ons, the ju dgment o f th e circuit co urt of De Kalb Count

y is affirmed. Affirmed. McLAREN and BOWMAN, JJ., concur.