In re Marriage of Hundley

FILED
April 2, 2019
2019 IL App (4th) 180380 Carla Bender
4th District Appellate
NO. 4-18-0380 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re MARRIAGE OF SALLY KAY HUNDLEY, ) Appeal from the
Petitioner, Third-Party Plaintiff- ) Circuit Court of
Appellant, and Cross-Appellee, ) Sangamon County
and JOHN J. HUNDLEY, ) No. 15D234
Respondent )
)
(Buckhart Sand & Gravel Company, Inc., ) Honorable
Third-Party Defendant-Appellee and ) Jennifer M. Ascher,
Cross-Appellant). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Knecht and DeArmond concurred in the judgment and opinion.
OPINION
¶1 In November 2015, the trial court entered a judgment of dissolution of marriage,
ordering respondent, John J. Hundley, to pay $370 per month in maintenance to petitioner, Sally
Kay Hundley, upon the sale of their farmland in Rochester, Illinois. Although an auction was
held that same month, the sale of the farmland was not finalized until September 2016.
Meanwhile, in December 2015, Sally served an income withholding notice (withholding notice)
pursuant to section 20 of the Income Withholding for Support Act (Act) (750 ILCS 28/20 (West
2014)) on John’s employer and third-party defendant, Buckhart Sand & Gravel Company, Inc.
(Buckhart). Buckhart began withholding income from John’s paychecks but did not pay those
withholdings to the Illinois State Disbursement Unit (SDU).
¶2 In May 2016, Sally filed a third-party complaint that alleged Buckhart knowingly
failed to comply with the Act by not making payments pursuant to the withholding notice. In
June 2016, Buckhart filed a motion to dismiss pursuant to section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2014)), arguing that the withholding notice failed to include
all of the information required by section 20(c) of the Act. In September 2016, the trial court
granted Buckhart’s motion to dismiss, finding that because the sale of the farmland had yet to
occur, the withholding notice was invalid and did not require Buckhart’s compliance.
¶3 Sally appealed the trial court’s order, and this court reversed, concluding
Buckhart was a payor subject to the Act. In re Marriage of Hundley, 2017 IL App (4th) 160720-
U, ¶ 19. Because a payor’s obligations under the Act are mandatory, we further concluded
Buckhart could not challenge the validity of the underlying order for support. Id.¶4 On remand, Buckhart continued to argue that the withholding notice was invalid.
Buckhart also contended any violation of the Act was not committed knowingly and asserted
several affirmative defenses. In January 2018, the trial court conducted a bench trial. In February
2018, the court issued a written order, finding that the initial failure to pay over withheld
amounts pursuant to the withholding notice was an innocent mistake, but the violation became
“knowing” when Buckhart failed to correct the mistake until May 2016. See 750 ILCS 28/35(a)
(West 2014). The court then assessed a statutory penalty in the amount of $112,000.
¶5 Both Buckhart and Sally filed posttrial motions. Buckhart claimed the Act
authorized a penalty only for knowing violations. Sally contended that the trial court
miscalculated the date Buckhart paid the SDU. In May 2018, the trial court modified its
judgment and reduced the penalty to $53,400. The court agreed with Buckhart that section 35(a)
applied only to knowing violations and found that Buckhart knowingly violated the Act after
receiving a nonreceipt notice pursuant to section 45(j) in February 2016. See id. § 45(j).
-2-
¶6 Sally appeals, arguing the trial court erred by calculating the penalty beginning in
February 2016 instead of January 2016. She contends the penalty provision in section 35(a)
unambiguously requires a penalty beginning on the date any withholding under the initial
withholding notice is not paid to the SDU. Buckhart cross-appeals, arguing the trial court erred
by (1) concluding the withholding notice was valid because it failed to contain all the
information required by section 20(c) and (2) denying its affirmative defenses. Buckhart also
claims the trial court’s finding of a knowing violation was against the manifest weight of the
evidence. We conclude that the trial court correctly interpreted the Act and its findings were not
against the manifest weight of the evidence. Accordingly, we affirm the trial court’s judgment.
¶7 I. BACKGROUND
¶8 A. The Dissolution of Marriage Proceedings
¶9 In April 2015, Sally filed a petition in Sangamon County for dissolution of
marriage from John. At that time, John worked for Buckhart as a heavy equipment operator. In
August 2015, Sally and John submitted a marital settlement agreement to the trial court pursuant
to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502 (West 2014)), in
which John agreed to pay Sally maintenance on the following condition:
“On and after the first day of the month next following the sale of the parties’
farm real estate located at rural Rochester, Illinois, and the distribution of the
proceeds of the sale thereof as otherwise set forth herein, husband shall pay to
wife the sum of $370.00 each month.”
The agreement further provided that the farm real estate “shall be sold with reserve at public
auction.”
¶ 10 In November 2015, the trial court entered a judgment of dissolution of marriage
-3-
that incorporated the marital settlement agreement. Later that month, the farm real estate sold at
public auction for a price significantly less than the parties anticipated. Additionally, the sale was
not finalized as planned under the judgment of dissolution of marriage. The sale was eventually
finalized in September 2016.
¶ 11 B. The Third-Party Complaint
¶ 12 In May 2016, Sally filed a third-party complaint against Buckhart, alleging it
knowingly failed to comply with a withholding notice in violation of section 35(a) of the Act.
750 ILCS 28/35(a) (West 2014). Sally alleged that in December 2015, she sent Buckhart an
income withholding notice by certified mail that instructed it to withhold $370 per month from
John’s pay beginning on January 1, 2016. However, Sally did not receive any payments.
Pursuant to section 45(j) of the Act, she sent Buckhart a nonreceipt notice by certified mail
informing Buckhart of the lack of payment and requesting an explanation or payment in
compliance with the statute within 14 days. Id. § 45(j). The complaint asserted that Buckhart
failed to respond or pay over the necessary funds and therefore claimed Sally was entitled to a
statutory penalty of $100 per day for each payment Buckhart missed. See id. § 35(a).
¶ 13 In June 2016, Buckhart filed a motion to dismiss pursuant to section 2-619 of the
Code of Civil Procedure, arguing that the withholding notice failed to include all the information
required by section 20(c) of the Act. Specifically, Buckhart maintained that the withholding
notice failed to state the “amount required for current support under the order for support” (id.
§ 20(c)(2)) because, pursuant to the marital settlement agreement, John was not required to pay
support until the sale of the farm real estate, which had not yet occurred. Buckhart further
contended that the withholding notice was invalid because (1) a copy of the underlying order for
support was not attached, (2) the notice did not include a “remittance ID,” and (3) the notice did
-4-
not identify from where the underlying order for support came. Alternatively, Buckhart asserted
that it had been withholding the amounts required since January 2016 but due to a computing
error had not paid them over to the SDU. Accordingly, any violation was the product of an
honest mistake and was not done “knowingly” as required by section 35 of the Act. Id. § 35(a).
¶ 14 In September 2016, the trial court granted Buckhart’s motion to dismiss. In its
written order, the court found that because the underlying order for support did not require John
to pay maintenance until the farm real estate had been sold and the proceeds disbursed, John was
not an “obligor” under the Act. See id. § 15(e) (“ ‘Obligor’ means the individual who owes a
duty to make payments under an order for support.”). Because John was not an obligor, Buckhart
could not be a “payor” and was not required to comply with the Act. See id. § 15(g) (“ ‘Payor’
means any payor of income to an obligor.”).
¶ 15 C. The First Appeal
¶ 16 Sally appealed the trial court’s dismissal of her third-party complaint, arguing that
Buckhart was a payor and had no ability to challenge the terms of the underlying order under the
Act. Buckhart responded that the withholding notice was invalid, relying on Schultz v.
Performance Lighting, Inc., 2013 IL 115738, 999 N.E.2d 331 (holding that the failure to include
in a withholding notice the information required by section 20(c) renders the notice invalid).
Buckhart reiterated the arguments raised in its motion to dismiss—namely, that the withholding
notice (1) was not regular on its face because a copy of the underlying order for support was not
attached, (2) was missing information, and (3) inaccurately stated that support was due on
January 1, 2016, contrary to the order for support that required the farm real estate to be sold as a
condition precedent to John’s maintenance obligation.
¶ 17 This court agreed with Sally, reversed the trial court’s judgment, and remanded
-5-
the case for further proceedings. We distinguished Schultz because (1) the third party in that case
alleged the withholding notice was invalid and defective on its face, “not that the underlying
order of support itself was invalid,” and (2) the Act “does not require an underlying order of
support to be attached to a withholding [notice].” Hundley, 2017 IL App (4th) 160720-U, ¶¶ 15,
16. Additionally, we noted that the Act is mandatory and “does not allow a third-party
respondent served with a valid withholding [notice] to contest the validity of an underlying order
of support.” Id. ¶ 19.
¶ 18 D. The Proceedings on Remand
¶ 19 On remand, in August 2017, Buckhart filed an answer and denied that the
withholding notice was valid or that any violation was knowing. Buckhart asserted as affirmative
defenses fraud, equitable estoppel, “satisfaction,” and “illegal imposition of judicial powers to
obligee.” Buckhart also asserted that the withholding notice was invalid for failing to comply
with section 20(c) in the following ways: (1) it failed to state the date of the underlying support
order (750 ILCS 28/20(c)(1.1) (West 2014)), (2) it failed to include the duties of the payor and
potential penalties under the Act in boldface type, the size of which is equal to the largest type on
the notice (id. § 20(c)(7)), (3) it incorrectly stated the “amount required for current support”
because John’s maintenance obligation had not yet accrued (id. § 20(c)(2)), (4) it was not “in the
standard format prescribed by the federal Department of Health and Human Services” (id.
§ 20(c)(1)), and (5) it was not “regular on its face” because a copy of the underlying support
order was not attached (id. § 35(c)).
¶ 20 Sally moved to strike Buckhart’s affirmative defenses because Buckhart lacked
standing to challenge the underlying order for support on the basis of fraud, equitable estoppel,
satisfaction, “illegal imposition of judicial powers to obligee,” or the validity of the underlying
-6-
order. Sally also asserted that this court had decided the issue of validity of the withholding
notice in the prior appeal.
¶ 21 While Sally’s motion to strike was pending, the parties filed various dispositive
motions and engaged in discovery. In November 2017, the trial court denied Sally’s motion to
strike affirmative defenses. At a status hearing in December 2017, the parties agreed to withdraw
all pending dispositive motions, and the court set the matter for a bench trial.
¶ 22 1. The Trial
¶ 23 In January 2018, the trial court conducted a bench trial. The parties stipulated that
(1) Buckhart received an income withholding notice requiring it to withhold $370 per month
from John’s pay beginning January 1, 2016, (2) John was employed by Buckhart and paid
weekly at all relevant times, and (3) Buckhart withheld the amounts required from each pay
check, but failed to pay the amounts to the SDU until May 2016. As a result, Buckhart agreed
Sally was entitled to the statutory presumption that the violation was knowing. See id. § 35(a)
(“The failure of a payor, on more than one occasion, to pay amounts withheld to the State
Disbursement Unit *** creates a presumption that the payor knowingly failed to pay over the
amounts.”).
¶ 24 Barney Flatt, Buckhart’s general manager, testified that on December 9, 2015, he
received by certified mail an income withholding notice from Sally’s attorney. Per his usual
practice, Flatt gave the withholding notice to Diana Little, Buckhart’s administrative assistant.
Also per customary practice, Flatt instructed Little to give the withholding notice to Buckhart’s
accountant, Jeff Mortimer, who would then ensure the amount stated in the notice would be
withheld and disbursed as requested.
¶ 25 Flatt further testified that he received by certified mail a nonreceipt notice “on or
-7-
about February 17,” 2016, which indicated Sally had not received the funds required by the
withholding notice. (At various points, Flatt testified that he received the nonreceipt notice on
both February 16 and February 17. The certified mail receipt admitted into evidence indicates
Flatt signed for the nonreceipt notice on February 19, 2016, and the trial court found it was
received on that date.) Flatt gave the nonreceipt notice to Little with the intention that she would
give it to Mortimer, who would ensure the money was being withheld and distributed. Flatt
averred that he had always intended to withhold and distribute the amount required by the initial
withholding notice and never ordered anyone to do otherwise.
¶ 26 On cross-examination, Flatt admitted he was aware on February 16, 2016, that
Sally was not receiving the funds required by the withholding notice and that the nonreceipt
notice required Buckhart to either provide an explanation to Sally or make the required payment
within 14 days. Flatt stated he did not follow up after telling Little to address the issue because
he assumed it would be taken care of per usual practice. However, Flatt admitted he spoke with
John around that time, and John indicated to him that the maintenance was being withheld from
his checks. John did not report that the money should not have been withheld or that the amount
was incorrect.
¶ 27 Little, Buckhart’s administrative assistant, testified that she had worked for
Buckhart for 24 years, handling accounts payable, payroll, answering the phone, and “other
administrative duties.” Buckhart paid its employees weekly, including John Hundley. Little
confirmed that in December 2015, Flatt gave her the withholding notice and she gave it to
Mortimer. Little did not remember receiving the nonreceipt notice, but agreed that the
established business practice was to forward all income withholding notices to Mortimer, and
had she received the nonreceipt notice, she would have passed it on.
-8-
¶ 28 Little testified that she became aware that the withholdings were not being sent to
the SDU at the end of April 2016. Buckhart corrected the situation in May. Little explained that a
computer program automatically calculated withholdings, but she manually wrote disbursement
checks for each applicable employee and mailed them to the SDU each week. On May 23, 2016,
Little issued and mailed two disbursement checks to the SDU in amounts sufficient to cover the
missed disbursements and statutory interest. Thereafter, Little made weekly payments to the
SDU in compliance with the withholding notice.
¶ 29 Jeff Mortimer testified he was the accountant for Buckhart. Part of his work
included handling employee garnishments. Mortimer stated that he received a withholding notice
for John in December 2015 from Little. To comply with the withholding notice, Mortimer made
an entry in Buckhart’s payroll system to deduct the appropriate amount from John’s wages.
However, Mortimer mistakenly failed to make the corresponding entry required to disburse the
withheld funds to the SDU.
¶ 30 Mortimer denied ever seeing the nonreceipt notice or being made aware that the
funds were not being disbursed to the SDU. Mortimer stated he became aware of the mistake on
May 23, 2016, when Little told him there was a problem. Mortimer investigated and discovered
that although the correct amounts were withheld each week, they were not being paid out. He
immediately corrected the computer error, totaled the amounts withheld, and instructed Little to
send a check to the SDU.
¶ 31 Mortimer characterized the error as “a horrible mistake” that occurred when he
initially received the withholding notice. He had always intended to withhold the wages in
conformity with the withholding notice, and no one ever instructed him to do anything different.
Mortimer testified that he was solely responsible for making the necessary entries to effectuate
-9-
garnishments for Buckhart and for reviewing and correcting any mistakes if Buckhart became
aware of them.
¶ 32 On cross-examination, Sally’s attorney showed Mortimer a copy of the nonreceipt
notice, and he again denied ever seeing it. Mortimer stated that he had since reviewed it and that
had Buckhart provided it to him, he would have corrected the mistake. Mortimer clarified that,
even though the withholding notice stated withholdings should start on January 1, 2016, a
withholding did not occur for that date even though it was a payday. Due to union rules, John’s
January 1, 2016, wages were paid in 2015. Therefore, the withholdings began the following
week.
¶ 33 Kellie Austif testified on behalf of Sally. Austif worked as a legal assistant for
Sally’s attorney. Austif sent the withholding notice and notice of nonreceipt to Buckhart via
certified mail. She also called Buckhart dozens of times between February 2016 and May 2016
in an attempt to determine why Sally was not receiving maintenance in accordance with the
withholding notice. Austif stated she left messages with people at Buckhart, but never received a
response. Austif also never received any written correspondence from Buckhart in response to
the nonreceipt notice.
¶ 34 2. The Trial Court’s Order
¶ 35 In February 2018, the trial court issued a written order. After recounting the
relevant testimony, the court denied Buckhart’s claim that the withholding notice failed to state
the current amount due in the underlying order as required by section 20(c)(2) based upon this
court’s prior holding on appeal. The trial court also denied Buckhart’s remaining affirmative
defenses without comment.
¶ 36 Next, the trial court addressed whether Buckhart had rebutted the statutory
- 10 -
presumption that it knowingly failed to pay the withheld amounts to the SDU. The court found
that Mortimer’s failure to enter the proper disbursement code was a mistake. Nonetheless, Flatt
admitted he received the nonreceipt notice on February 19, 2016, but took no action, and
Buckhart did not offer any explanation for why it did not correct the error. Accordingly, the court
concluded that although the initial violation was not committed knowingly, the violation became
knowing “when the error went unresolved until May of 2016.” The court also found Buckhart
violated section 45(j) of the Act by failing to respond to the nonreceipt notice or remit the
required payments.
¶ 37 Based on these violations, the trial court then calculated the $100 per day penalty
as set forth in section 35(a). The court found that the violations were cured when Little mailed
the withholdings to the SDU on May 23, 2016. The court found a violation for each week
beginning on January 8, 2016. After accounting for the seven business day grace period and
$10,000 per violation limit (see id.), the court assessed a penalty in the amount of $112,000
against Buckhart.
¶ 38 3. The Posttrial Motions
¶ 39 Later in February 2018, Buckhart filed a motion to modify the trial court’s
judgment, in which it argued that the penalty should only be assessed for knowing violations.
Buckhart asserted that its violations were the product of an innocent mistake, but to the extent
the trial court disagreed, section 35(a) limited penalties to knowing violations. Buckhart claimed
the earliest date the violations could have become knowing was after it received the nonreceipt
notice in February 2016.
¶ 40 Sally filed a motion to reconsider, arguing that the trial court erred by permitting
Buckhart to present evidence that it mailed the payments to the SDU on May 23, 2016.
- 11 -
According to Sally, Buckhart made a judicial admission that it paid the SDU on May 26, 2016, in
response to her requests to admit. As a result, Sally requested an additional $6600 in penalties.
¶ 41 In May 2018, the trial court issued an order granting Buckhart’s motion in part
and denying all other requested relief from the parties. The trial court agreed with Buckhart that
section 35(a) only applied to knowing violations. Consistent with its prior order, the court
determined that the initial error was an honest mistake. However, the failure to pay the withheld
funds to the SDU became a knowing violation when Buckhart received the nonreceipt notice on
February 19, 2016. The court recalculated the penalty beginning on that date and concluded
Buckhart owed $53,400.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 Sally appeals, arguing the trial court erred by calculating the penalty beginning in
February 2016 instead of January 2016. She contends that the penalty provision in section 35(a)
unambiguously requires a penalty beginning on the date any withholding under the initial
withholding notice is not paid to the SDU.
¶ 45 Buckhart cross-appeals, arguing the trial court erred by concluding the
withholding notice was valid because it failed to contain all the information required by section
20(c) and by denying its affirmative defenses. Buckhart also claims the trial court’s finding of a
knowing violation was against the manifest weight of the evidence.
¶ 46 We conclude that the trial court correctly interpreted the Act and its findings were
not against the manifest weight of the evidence. Accordingly, we affirm the trial court’s
judgment.
¶ 47 A. The Standard of Review
- 12 -
¶ 48 When a trial court sits without a jury, appellate courts will not disturb its findings
of fact unless they are against the manifest weight of the evidence. In re Marriage of Schmidgall,
2018 IL App (3d) 170189, ¶ 39, 115 N.E.3d 344. A finding is against the manifest weight of the
evidence only when the opposite conclusion is clearly apparent or when the findings are
unreasonable, arbitrary, or not based on the evidence. Cooke v. Maxum Sports Bar & Grill, Ltd.,
2018 IL App (2d) 170249, ¶ 53, 109 N.E.3d 811. However, when reviewing the legal effect of
undisputed facts and a trial court’s interpretation of a statute, courts apply a de novo standard of
review. Schmidgall, 2018 IL App (3d) 170189, ¶ 39.
¶ 49 B. The Law of the Case
¶ 50 As an initial matter, Sally argues that this court previously decided the issue of
whether the withholding notice complied with the requirements of section 20(c). As a result,
Sally contends the law-of-the-case doctrine bars Buckhart from relitigating the validity of the
withholding notice. Buckhart claims the withholding notice’s validity was not an issue in the first
appeal and therefore was subject to relitigation on remand. We agree with Buckhart in part.
¶ 51 1. The Law-of-the-Case Doctrine
¶ 52 The law-of-the-case doctrine bars relitigation of an issue previously decided in the
same case “and encompasses not only the court’s explicit decisions, but those issues decided by
necessary implication.” Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d)
120273, ¶ 15, 996 N.E.2d 77. “When an appellate court decides a question of law, that decision
ordinarily binds both the trial court on remand and the appellate court in a subsequent appeal.”
Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois, 2018 IL
App (2d) 170137, ¶ 9, 101 N.E.3d 132. However, issues that were presented but not decided in a
prior appeal do not become law of the case. Id.- 13 -
¶ 53 2. This Case
¶ 54 In the first appeal, Buckhart raised the issue of the withholding notice’s validity.
However, this court addressed only the reasoning provided by the trial court for granting
Buckhart’s motion to dismiss, namely, “whether Buckhart was required to comply with the
withholding [notice] served by Sally, even though the condition precedent triggering John’s
maintenance obligation in the underlying order of support had not yet occurred.” Hundley, 2017
IL App (4th) 160720-U, ¶ 12. In answering that question, we distinguished Schultz and held that
Buckhart could not challenge the withholding notice based on the validity of the underlying
order. Id. ¶ 15. We further distinguished Schultz by noting that the Act did not require Sally to
attach a copy of the underlying support order to the withholding notice and any failure to do so
did not render the withholding notice facially deficient. Id. ¶ 16. We concluded that “[t]he
language of the [Act] does not allow a third-party respondent served with a valid withholding
[notice] to contest the validity of an underlying order of support.” Id. ¶ 19.
¶ 55 Although our prior ruling implies the withholding notice was valid, we did not
directly or implicitly address Buckhart’s arguments concerning whether the withholding notice
met each and every requirement contained in section 20(c). However, a necessary implication of
our holding is that Buckhart cannot challenge the validity of the withholding notice under
subsection (c)(2) because determining whether the notice correctly stated the “required ***
current support” (750 ILCS 28/20(c)(2) (West 2014)) necessitates an evaluation of the
underlying order of support. In reaching this conclusion, we also held that attaching the
underlying order of support to the withholding notice was not required to render the notice
facially valid. Accordingly, Buckhart’s arguments depending on the underlying order of support
are barred by the law-of-the-case doctrine.
- 14 -
¶ 56 Buckhart’s remaining arguments could have been addressed in the prior appeal.
However, because they were not, the trial court was free to consider them on remand, and we
now address them.
¶ 57 C. Whether the Withholding Notice Was Valid
¶ 58 Buckhart argues on appeal the withholding notice was invalid because it failed to
(1) state the current amount due (id.), (2) state the date of the underlying order relied upon (id.
§ 20(c)(1.1)), (3) state the duties of the payor and potential penalties in boldface type in a font
size that equals the largest in the notice (id. § 20(c)(7)), and (4) be in the form required by the
federal Department of Health and Human Services (id. § 20(c)(1)). We address each argument in
turn.
¶ 59 1. The Applicable Law
¶ 60 “Section 20(c) of the Act sets forth the information that must be included in the
notice of withholding.” Schultz, 2013 IL 115738, ¶ 14. It provides in relevant part as follows:
“The income withholding notice shall:
(1) be in the standard format prescribed by the federal Department of
Health and Human Services; and
(1.1) state the date of entry of the order for support upon which the income
withholding notice is based; and
(2) direct any payor to withhold the dollar amount required for current
support under the order for support; and
***
(7) in bold face type, the size of which equals the largest type on the
notice, state the duties of the payor and the fines and penalties for failure to
- 15 -
withhold and pay over income and for discharging, disciplining, refusing to hire,
or otherwise penalizing the obligor because of the duty to withhold and pay over
income under this Section[.]” 750 ILCS 28/20(c)(1), (1.1), (2), (7) (West 2014).
The mandatory language employed by section 20(c) means there must be strict compliance and
the failure to include any of the required information (except the obligee’s signature) affects the
validity of the notice of withholding. Schultz, 2013 IL 115738, ¶ 18.
¶ 61 2. The Current Amount Due
¶ 62 Buckhart first argues that the withholding notice failed to state the current amount
of support because the condition precedent in the underlying order had not yet occurred. We held
in the prior appeal in this case that Buckhart did not have the ability to challenge the underlying
order. Therefore, this argument is barred by the law-of-the-case doctrine.
¶ 63 Additionally, the structure of the Act demonstrates that the legislature did not
intend for a payor to be able to challenge a withholding notice based on an underlying support
order. (To assist the reader in understanding this argument, we note that an “obligor” is one who
owes support, in this case John; an “obligee” is one to whom support is owed, here, Sally; and a
“payor” is one who pays income to an obligor, namely, the employer, Buckhart. See supra ¶ 14.)
Section 20(a)(1) of the Act permits a support order to provide a future, rather than current, date
support is owed when the “alternative arrangement *** ensures payment of support.” 750 ILCS
28/20(a)(1) (West 2014). Section 30 provides a method for obligees to serve withholding notices
under orders for support that “ha[ve] not required that income withholding take effect
immediately” without a delinquency if the circumstances “no longer ensure[ ] payment of
support.” Id. § 30(a). The Act specifically gives the obligor the ability to challenge a withholding
notice filed under section 30, but not a payor. Id. § 30(c). This differential treatment makes sense
- 16 -
because a payor has no interest in the funds and should not be making a legal determination as to
the validity of the conditions giving rise to the withholding. This is also why the Act gives
immunity to any payor who complies with a withholding notice that is “regular on its face.” Id.
§ 35(c).
¶ 64 Moreover, the Act specifically contemplates that withholding notices may contain
mistakes about the current amount due or even arrearages. Section 40 authorizes an obligor to
petition the court “to correct a term contained in an income withholding notice to conform to that
stated in the underlying order for support for: (1) the amount of current support; [or] (2) the
amount of the arrearage.” Id. § 40(c). Notably, the payor is not granted a similar authority in
section 40 or any other section of the Act. Instead, section 40 provides that “[t]he income
withholding notice shall continue to be binding upon the payor until service of an amended
income withholding notice or any order of the court or notice entered or provided for under this
Section.” (Emphasis added.) Id. § 40(g). Had the legislature intended payors to challenge
mistakes in the amount of withholdings based on the underlying order, it would have given them
the same rights as obligors. It did not. Accordingly, Buckhart could not challenge the validity of
the withholding notice on the basis that it stated a current amount required for support that was
different from the underlying order.
¶ 65 3. The Date of the Underlying Order
¶ 66 Second, Buckhart argues the withholding notice incorrectly listed the date of the
underlying order for support that section 20(c)(1.1) required. Buckhart claims the withholding
notice states November 4, 2015, as the date of the order, but this date is incorrect because
support was not owed until the condition precedent had occurred. We disagree.
¶ 67 The record demonstrates that the trial court entered only one order for support and
- 17 -
that order was entered on November 4, 2015. Sally has always cited the November 4, 2015, order
as the underlying order for support upon which the income withholding notice was based.
Regardless of when support became owed in fact, the date of the order relied upon was
November 4, 2015, and the trial court did not err by denying Buckhart’s affirmative defense.
¶ 68 4. Typeface and Font Size
¶ 69 Third, Buckhart contends the withholding notice did not comply with section
20(c)(7) because it did not state the duties of the payor and possible penalties for noncompliance
in boldface type in a size equal to the largest size in the notice. Buckhart also complains that
Sally merely copied the relevant provisions of the Act and attached them to the notice and this
could not be what the Act requires. We disagree.
¶ 70 The trial court did not make any specific findings regarding this requirement. The
court simply denied the affirmative defense summarily. Our review of the withholding notice
does not convince us that the trial court’s ruling was improper. The duties and penalties were
unquestionably in boldfaced type and they appear to be in the same size as the largest type on the
notice. Additionally, we note that the withholding notice appears to be identical to the one listed
on the Illinois Supreme Court website. See Ill. Supreme Court Commission on Access to Justice,
Income Withholding for Support (July 1, 2017),
http://illinoiscourts.gov/Forms/approved/divorce/Divorce_with_Children_IWO_Illinois.pdf
[https://perma.cc/T8LA-MWM9]. That form notice attached several pages of the statutory
language from the Act that state the payor’s duties and possible penalties as well as the rights,
remedies, and duties of the obligor.
¶ 71 5. The Proper Form
¶ 72 Finally, Buckhart claims the withholding notice was not in the form prescribed by
- 18 -
the federal Department of Health and Human Services as required by section 20(c)(1) because a
copy of the underlying order for support was not attached. We rejected this argument in the prior
appeal, and Buckhart does not argue that our previous ruling was manifestly erroneous.
Accordingly, the law-of-the-case doctrine prevents Buckhart from raising this argument.
¶ 73 6. The Nonreceipt Notice
¶ 74 We view as significant that Buckhart did not contest the validity of the
withholding notice at any time before Sally filed her third-party claim. As noted by the supreme
court in Schultz, “a withholding notice is considered ‘regular on its face’ under both Illinois and
federal law when it is a completed document that contains the necessary information required by
the form adopted by the United States Secretary of Health and Human Services.” Schultz, 2013
IL 115738, ¶ 23. The federal statute requires that the form notice “contain only such information
as may be necessary for the employer to comply with the withholding order.” 42 U.S.C.
§ 666(b)(6)(A)(ii) (2012). Buckhart immediately began withholding the amount required in the
notice. Mortimer testified that he was responsible for reviewing withholding notices and
ensuring Buckhart complied with them. He admitted he simply made a mistake and failed to
make the proper entry to ensure the withheld funds were paid over to the SDU. Clearly, then, the
withholding notice had all the necessary information for Buckhart to comply.
¶ 75 Buckhart claims the instructions on the Department of Health and Human
Services form require a copy of the underlying order to be attached when the withholding notice
is sent by an obligee or attorney. See Dep’t of Health and Human Servs., Income Withholding
for Support, www.acf.hhs.gov/sites/default/files/ocse/omb_0970_0154.pdf (last visited Mar. 15,
2019) [https://perma.cc/YE9G-AUL5]. However, the instructions on the form also state that if a
withholding notice “is not regular on its face, you must check this box and return the [notice] to
- 19 -
the sender.” (Emphasis in original.) Id. Buckhart cannot claim the instructions entitle it to relief
when it failed to follow those very instructions. Had Buckhart rejected the withholding notice in
December 2015 when it was received, this case may well have been adjudicated differently by
both the trial court and this court. Raising such a defense now is simply untimely.
¶ 76 Moreover, section 45(j) requires a payor, within 14 days of receiving a nonreceipt
notice, to either (1) explain why funds are not being withheld or (2) make the required payments
plus interest. 750 ILCS 28/45(j) (West 2014). Buckhart admitted it received the nonreceipt notice
but did not comply with the instructions. Again, had there been an issue with the withholding
notice’s validity, it would not be unreasonable to expect or require Buckhart to point out the
notice’s deficiencies at that time. Sally could have then corrected the problems by providing the
correct information.
¶ 77 The legislature included section 45(j) to improve communication between
obligees and payors to ensure support payments are made on a timely basis. A payor who fails to
assert the lack of validity of a withholding notice in response to a properly served nonreceipt
notice defeats the purpose of the legislation. Under the facts of this case, given the context that
Buckhart immediately began withholding the amounts requested in the withholding notice, we
conclude that Buckhart conceded the validity of the withholding notice when it did not respond
to Sally’s nonreceipt notice.
¶ 78 D. Buckhart’s Affirmative Defenses
¶ 79 Buckhart next argues that the trial court erred by denying its affirmative defenses.
Sally responds that its defenses are barred by the law-of-the-case doctrine. We address each
defense in turn.
¶ 80 1. Judicial Power
- 20 -
¶ 81 Buckhart claims that the Act impermissibly grants attorneys the power to issue
court orders in violation of the Illinois Constitution’s requirement that all judicial power be
vested in the courts. Buckhart claims there is no valid underlying order for support in this case
and, therefore, Sally’s counsel is essentially issuing a court order if Buckhart is required to
comply with the withholding notice. We disagree.
¶ 82 First, we conclude this argument has been forfeited. Buckhart cites just two
authorities in support of its argument: (1) article II, section 1, of the Illinois Constitution, which
states “[t]he legislative, executive and judicial branches are separate. No branch shall exercise
powers properly belonging to another” (Ill. Const. 1970, art. II, § 1), and (2) Agran v. Checker
Taxi Co., 412 Ill. 145, 105 N.E.2d 713 (1952). The plain text of the Illinois Constitution does not
cover this case. Agran struck down a law that regulated the manner in which a court could
dismiss a lawsuit for want of prosecution because it was an unconstitutional restriction by the
legislature on judicial power. Id. at 149-50. Buckhart makes no argument regarding how this
situation is analogous. Appellate courts are not depositories where litigants may dump the burden
of argument and research; they are entitled to have the issues clearly defined and a cohesive legal
argument presented. Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶ 5, 960 N.E.2d 1226.
Buckhart failed to meet that standard here, and its arguments are forfeited as a result.
¶ 83 To the extent we understand Buckhart’s argument, we disagree with it. An
attorney or obligee is not issuing a court order when it sends a withholding notice. They are
simply providing a notice required by statute or court order. Providing such a notice is no
indication that the attorney or obligee is exercising any judicial power.
¶ 84 To the extent Buckhart is worried about obligees and their attorneys having
unlimited power to issue withholding notices, the Act provides ample procedural safeguards. For
- 21 -
instance, the Act requires all withholding notices to properly state the amounts owed in
compliance with an underlying support order. 750 ILCS 28/20(c)(2) (West 2014). If the
withholding notice is incorrect, obligors have the ability to challenge the amount withheld. Id.§ 40(c). Payors, however, must comply with a withholding notice until they receive an amended
notice or order from the court. Id. § 40(g). It makes no difference to the payor whether the funds
are paid to the obligor or to the SDU. The Act grants immunity to payors who comply with
incorrect withholding notices so long as they are regular on their face. Id. § 35(c). And the Act
also states that any obligee who willfully violates the terms of the Act is subject to contempt. Id.
§ 50(b). Nothing in the Act prevents a payor from providing the withholding notice to the obligor
if it believes the notice is incorrect but facially valid. Accordingly, the Act contains sufficient
safeguards against any “abuse” about which Buckhart claims to be concerned.
¶ 85 2. The Statute of Frauds
¶ 86 Buckhart next claims the statute of frauds prevents enforcement of the
withholding notice against it because Sally and John never modified the marital settlement
agreement to provide for immediate support. The statute of frauds requires certain contracts to be
in writing and signed by the party to be charged for them to be enforceable. 740 ILCS 80/1
(West 2016); Crawley v. Hathaway, 309 Ill. App. 3d 486, 488, 721 N.E.2d 1208, 1210 (1999).
However, Sally is not attempting to enforce a contract and no contract—written, oral, or
otherwise—exists between Sally and Buckhart. Sally’s cause of action arises out of Buckhart’s
statutory duty to comply with a withholding notice that is regular on its face. Accordingly, the
trial court properly denied Buckhart’s statute of frauds defense.
¶ 87 3. Equitable Estoppel
¶ 88 Buckhart also claims Sally should be equitably estopped from recovering under
- 22 -
the Act because she misrepresented the fact that she was owed maintenance and Buckhart relied
on this representation to its detriment. “Equitable estoppel may be defined as the effect of the
person’s conduct whereby the person is barred from asserting rights that might otherwise have
existed against the other party who, in good faith, relied upon such conduct and has been thereby
led to change his or her position for the worse.” Geddes v. Mill Creek Country Club, Inc., 196 Ill.
2d 302, 313, 751 N.E.2d 1150, 1157 (2001). The Illinois Supreme Court has explained
“To establish equitable estoppel, the party claiming estoppel must
demonstrate that: (1) the other person misrepresented or concealed material facts;
(2) the other person knew at the time he or she made the representations that they
were untrue; (3) the party claiming estoppel did not know that the representations
were untrue when they were made and when they were acted upon; (4) the other
person intended or reasonably expected that the party claiming estoppel would act
upon the representations; (5) the party claiming estoppel reasonably relied upon
the representations in good faith to his or her detriment; and (6) the party claiming
estoppel would be prejudiced by his or her reliance on the representations if the
other person is permitted to deny the truth thereof.” Id. at 313-14.
¶ 89 Here, Buckhart did not prove that Sally misrepresented the fact that she was owed
maintenance or that it was prejudiced by any such representation. Flatt admitted that he
confirmed with John that the support was being withheld and John never claimed the money
should not have been withheld. The only reason Sally was able to recover under the Act was that
Buckhart failed to pay the amounts withheld over to the SDU. In short, even had Sally made a
misrepresentation, and had Buckhart complied with it, it would not have been subject to
punishment from John or under the Act. Accordingly, the trial court properly denied Buckhart’s
- 23 -
equitable estoppel defense.
¶ 90 4. Condition Precedent
¶ 91 Buckhart also alleges Sally failed to prove that she complied with all conditions
precedent to be entitled to the maintenance. It is unclear whether Buckhart asserts that Sally was
required to prove that the property had been sold in order for her maintenance to be due as stated
in the underlying order for support or that Sally was required to prove she complied with all
elements of the Act before she was entitled to statutory penalties. Under either argument,
Buckhart fails.
¶ 92 As stated earlier, we ruled in the prior appeal that Buckhart cannot base a defense
on the condition precedent in the underlying order. Moreover, the cases Buckhart relies upon
deal with contracts. Sally’s action is based on the Act, not a contract, and therefore, Buckhart’s
defense fails.
¶ 93 To the extent Buckhart claims Sally did not comply with all requirements under
the Act, we have already addressed and rejected any alleged shortcomings asserted by Buckhart
regarding the withholding notice, and Buckhart does not argue that Sally failed to comply with
the Act in any other way.
¶ 94 E. Whether the Finding of a Knowing Violation Was Against the Manifest
Weight of the Evidence
¶ 95 Buckhart’s final claim on its cross-appeal is that the trial court’s finding that it
knowingly failed to pay the withheld funds over to the SDU was against the manifest weight of
the evidence. Buckhart contends that the evidence showed that Buckhart always intended to
comply with the withholding notice and its failure to do so was the result of an honest mistake in
the accounting software. Buckhart also claims the Act is only supposed to punish those who
purposely disregard a court’s support order, relying on In re Marriage of Solomon, 2015 IL App
- 24 -
(1st) 133048, ¶ 35, 29 N.E.3d 560. We disagree.
¶ 96 1. The Applicable Law
¶ 97 Section 35 states, “If the payor knowingly fails to withhold the amount designated
in the income withholding notice or to pay any amount withheld to the State Disbursement Unit,”
then the payor shall pay a penalty of $100 per day. 750 ILCS 28/35(a) (West 2014). Though
“knowingly” is not defined, several cases have addressed the question of whether a particular
violation was “knowing.” In Dunahee v. Chenoa Welding & Fabrication, Inc., 273 Ill. App. 3d
201, 208, 652 N.E.2d 438, 444 (1995), this court reviewed the legislative history of the Act and
concluded that it was not intended to cover “innocent[ ] or negligent[ ]” violations. We
determined that the employer in Dunahee had committed a knowing violation because it was
aware that it needed to send support payments weekly, but instead chose to send them monthly.
Id. at 203, 209.
¶ 98 In In re Marriage of Chen, 354 Ill. App. 3d 1004, 1007, 820 N.E.2d 1136, 1140
(2004), the wife issued a withholding notice to her husband’s employer, Auto Mall. The
employer’s person in charge of payroll knew the money had to be withheld and paid over to the
SDU, had received notice that the obligee was not receiving the withholdings, wrote a check to
comply with the notice, but lost the check on his desk. Id. at 1008-09. When the check was
discovered, it was paid immediately. Id. at 1009. Despite misplacing the check, the appellate
court concluded Auto Mall committed a knowing violation because it “offered no compelling
excuse for consistently failing to comply with the statute.” Id. at 1017-18.
¶ 99 In Solomon, the First District agreed with the trial court’s determination that the
employer’s violation was not knowing. Solomon, 2015 IL App (1st) 133048, ¶ 32. The employer
had accidentally entered that withholdings were to be made bimonthly instead of biweekly. Id.- 25 -
¶ 33. On two occasions, the employer did not make a payment to the SDU when the husband
received three paychecks in a month. Id. The wife’s attorney contacted the employer on one such
occasion and the employer corrected the problem within two days. Id. The court stated, “Illinois
case law makes clear that penalties provided for by section 35 of the Withholding Act should
only be imposed on those employers who purposely disregard a court’s support order.” Id. ¶ 35.
¶ 100 2. This Case
¶ 101 To the extent Buckhart claims Solomon requires a heightened standard for a
violation, such as an intentional act, we disagree. In 2012, the legislature amended the Act. Pub.
Act 97-994, § 5 (eff. Jan. 1, 2010) (amending 750 ILCS 28/35). The initial bill introduced in the
house would have changed the mental state from “knowingly” to “willfully.” 97th Ill. Gen.
Assem., House Bill 5221, 2012 Sess. After debate, a vote on the bill was postponed, and the
legislature later amended the bill to retain the “knowingly” standard. See Pub. Act 97-994, § 5
(eff. Jan. 1, 2010) (amending 750 ILCS 28/35). Based on the above, it is clear that the legislature
intended to keep the knowing standard in place.
¶ 102 Here, the trial court found that Buckhart received the withholding notice in
December 2015 but failed to forward the withheld funds to the SDU because of an honest
mistake. However, in February 2016, Buckhart received the nonreceipt notice and was therefore
aware that the withheld funds were not being paid to the SDU. Buckhart did not provide any
explanation regarding why it did not correct the error.
¶ 103 The facts of this case are much more similar to Chen, where the employer offered
no explanation for the delay. Unlike Solomon, Buckhart did not immediately fix the problem or
investigate further. Mortimer testified that he would have fixed the problem had he known, and
the trial court found the fix was as simple as selecting an option from a drop-down menu.
- 26 -
However, Flatt simply assumed that the withholding was being handled properly. Accordingly,
the trial court’s finding that Buckhart knowingly failed to pay the withheld amounts to the SDU
was not against the manifest weight of the evidence.
¶ 104 F. Calculating the Penalty
¶ 105 Sally argues that the trial court erred when it reduced the penalty from $112,000
to $53,400. According to Sally, the penalty provision is unambiguous that “the payor shall pay a
penalty of $100 for each day that the amount designated in the income withholding notice” is not
paid. 750 ILCS 28/35(a) (West 2014). Sally contends that the penalty should have been assessed
starting on January 19, 2016, and for every week thereafter until Buckhart paid the SDU. Sally
further argues that Buckhart made a judicial admission that it paid the SDU on May 26, 2016,
and the trial court erred when it admitted evidence to the contrary.
¶ 106 Buckhart responds that the trial court correctly determined that a penalty is only
allowed when there is a corresponding knowing violation. Buckhart argues that because it proved
the violations prior to February 19, 2016, were not committed “knowingly,” the court correctly
calculated the penalty from that date going forward. Buckhart also contends that the trial court
had discretion to allow evidence that the withheld amounts were paid on May 23, 2016.
¶ 107 1. The Applicable Law
¶ 108 The primary rule of statutory construction is to ascertain and give effect to the
intent of the legislature. Schultz, 2013 IL 115738, ¶ 12. The best indicator of the legislature’s
intent is the plain and ordinary meaning of the statute. Id. When the language of a statute is clear
and unambiguous, it should be applied as written without resort to extrinsic aids of construction.
Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907, ¶ 47, 983 N.E.2d 993.
“Additionally, in determining the legislative intent of a statute, a court may consider not only the
- 27 -
language used, but also the reason and necessity for the law, the evils sought to be remedied, and
the purposes to be achieved.” Prazen v. Shoop, 2013 IL 115035, ¶ 21, 998 N.E.2d 1. Courts
should construe words and phrases in light of other relevant provisions. In re C.P., 2018 IL App
(4th) 180310, ¶ 18, 115 N.E.3d 1056. Statutory interpretation is a question of law reviewed
de novo. Schultz, 2013 IL 115738, ¶ 12.
¶ 109 Section 35(a) of the Act states, in pertinent part, as follows:
“If the payor knowingly fails to withhold the amount designated in the income
withholding notice or to pay any amount withheld to the State Disbursement Unit
within 7 business days after the date the amount would have been paid or credited
to the obligor, then the payor shall pay a penalty of $100 for each day that the
amount designated in the income withholding notice (whether or not withheld by
the payor) is not paid to the State Disbursement Unit after the period of 7 business
days has expired. *** A finding of a payor’s nonperformance within the time
required under this Act must be documented by a certified mail return receipt or a
sheriff’s or private process server’s proof of service showing the date the income
withholding notice was served on the payor. For purposes of this Act, a withheld
amount shall be considered paid by a payor on the date it is mailed by the payor,
or *** on the date delivery of the amount has been initiated by the payor.” 750
ILCS 28/35(a) (West 2014).
¶ 110 The $100 per day penalty is assessed for each violation of the Act, and “[a]
separate violation occurs each time an employer knowingly fails to remit an amount that it has
withheld from an employee’s paycheck.” (Internal quotation marks omitted.) In re Marriage of
Miller, 227 Ill. 2d 185, 194, 879 N.E.2d 292, 298 (2007). “The $100-per-day penalty provision
- 28 -
was enacted to ensure a speedy and simple method of withholding wages in response to the
nationwide crisis of delinquent child support.” Chen, 354 Ill. App. 3d at 1015. “The purpose of
allowing a plaintiff to recover the $100-per-day penalty for each day of a knowing violation is to
punish parties that violated the Act and to discourage future violations.” Schmidgall, 2018 IL
App (3d) 170189, ¶ 56. “The fact that the penalty assessment may result in a ‘windfall’ to the
recipient is irrelevant because the penalty is not solely related to the hardship suffered by the
recipient.” Grams v. Autozone, Inc., 319 Ill. App. 3d 567, 571, 745 N.E.2d 687, 691 (2001).
Nonetheless, because section 35(a) is penal in nature and creates a new liability on the part of
payors, the Act is strictly construed in favor of the persons sought to be subjected to its
operation. Schmidgall, 2018 IL App (3d) 170189, ¶ 56 (citing Schultz, 2013 IL 115738, ¶ 12).
¶ 111 2. The Start Date
¶ 112 The penalty provision in section 35(a) of the Act is subject to more than one
interpretation. Sally contends that the penalty provision contains two separate components. The
first clause of the penalty provision describes when a payor is liable (if it knowingly fails to
withhold or pay), and the second clause calculates the amount of the penalty ($100 for each day
the amount in the notice is not paid). Because the legislature specifically referred to “the amount
in the withholding notice,” the statute can be read to mandate a penalty for each missed payment
as long as any one violation was committed knowingly.
¶ 113 However, the penalty provision can also easily be read as requiring a penalty only
for each knowing violation. Buckhart points out that had it fixed the problem when it received
the nonreceipt notice, it would not have been subject to a penalty for the January and February
missed payments because they were the product of an honest mistake. Buckhart claims it would
be absurd to penalize it for those unknowing violations just because it later committed a knowing
- 29 -
violation.
¶ 114 Because we conclude the statute is ambiguous, we likewise conclude that it
should be strictly construed in Buckhart’s favor. Accordingly, we hold that the $100 per day
penalty applies only to knowing violations. This conclusion is consistent with what this court
wrote in Dunahee—namely, the legislature intended the penalty to be applied where an employer
knowingly failed to make a timely payment. Dunahee, 273 Ill. App. 3d at 208. An employer who
innocently or negligently failed to make a payment would not be subject to the penalty. Id.¶ 115 We earlier noted that the legislature amended the Act in 2012, and we conclude it
did so because it intended to punish only those employers who knowingly failed to comply with
the Act. The 2012 amendment provides additional support for our conclusion that the penalty in
section 35(a) applies only to knowing violations. For the reasons stated, we conclude the trial
court did not err by reducing Buckhart’s penalty to reflect only those violations that occurred
knowingly.
¶ 116 3. The Stop Date
¶ 117 Finally, Sally argues that the trial court erred by admitting evidence on the issue
of when the Buckhart paid over the withheld funds to the SDU. Sally explains that, in response
to a request to admit, Buckhart agreed that “payments were not made over to [the SDU] for the
benefit of this Plaintiff until a date on or about May 26, 2016.” Sally asserts Buckhart’s response
constituted a judicial admission and had the effect of removing the issue from contention.
Buckhart claims its response to the requests to admit were admitted into evidence by the court as
part of a stipulation and therefore the court had the discretion to reject the stipulation if it was in
fact untrue, citing Ellis v. American Family Mutual Insurance Co., 322 Ill. App. 3d 1006, 1010,
750 N.E.2d 1287, 1290 (2001).
- 30 -
¶ 118 “Judicial admissions are defined as deliberate, clear, unequivocal statements by a
party about a concrete fact within that party’s knowledge.” Smith v. Pavlovich, 394 Ill. App. 3d
458, 468, 914 N.E.2d 1258, 1267 (2009). Judicial admissions have the effect of withdrawing a
fact from issue and cannot be contradicted at trial. Pepper Construction Co. v. Palmolive Tower
Condominiums, LLC, 2016 IL App (1st) 142754, ¶ 89, 59 N.E.3d 41. As a result, “[t]he doctrine
of judicial admissions requires thoughtful study for its application so that justice not be done on
the strength of a chance statement made by a nervous party.” (Internal quotation marks omitted.)
Pavlovich, 394 Ill. App. 3d at 468. Judicial admissions cannot be “matter[s] of opinion, estimate,
appearance, inference, or uncertain summary.” Id. Whether a statement is a judicial admission
must be determined under the circumstances of each case, and each statement must be given
meaning consistent with the context in which it was found. Id. A trial court’s treatment of a
judicial admission is reviewed for an abuse of discretion and will be reversed only if no
reasonable person would take the view adopted by the trial court. Id.; see also Peach v.
McGovern, 2019 IL 123156, ¶ 25 (“An abuse of discretion occurs only where no reasonable
person would take the position adopted by the circuit court.”).
¶ 119 At trial, Sally objected to all testimony and evidence she believed constituted a
judicial admission. In particular, Sally objected when Flatt was asked when he received the
withholding notice and the nonreceipt notice. The trial court overruled the objection without
argument or explanation. At the close of evidence, Sally offered Buckhart’s responses to her
requests to admit into evidence. Buckhart objected, arguing the requests’ use of the phrase “on or
about” made them vague. Buckhart believed the testimony should stand because it clarified the
requests to admit and demonstrated when Buckhart made the payments to the SDU. The trial
court admitted Buckhart’s responses into evidence over objection. However, the court also
- 31 -
admitted Buckhart’s exhibits that showed when the checks were issued. Ultimately, the court
concluded Little’s testimony was credible and found that the payments were forwarded to the
SDU on May 23, 2016.
¶ 120 We conclude the trial court did not abuse its discretion. Buckhart’s response to
Sally’s request to admit used the phrase “on or about,” which is imprecise. The trial court could
have reasonably concluded that the testimony that the payment was made on May 23 was
consistent with the admission that Buckhart paid the SDU “on or about” May 26. Additionally,
section 35(a) states, “For purposes of this Act, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor ***.” 750 ILCS 28/35(a) (West 2014). Given the
context that the Act designates when withheld amounts are considered paid and the parties
consistently disputed the amount of the penalty, it was well within the trial court’s discretion to
accept testimony on the precise date Buckhart paid the SDU.
¶ 121 In concluding, we commend the trial court for its detailed written orders. We
found them particularly helpful to understanding the parties’ arguments and the trial court’s
findings.
¶ 122 III. CONCLUSION
¶ 123 For the reasons stated, we affirm the trial court’s judgment.
¶ 124 Affirmed.
- 32 -