Out of State Employer Subject to Illinois Withholding Order and Penalties

On May 1, 2008, the Second District Appellate Court affirmed the trial court's imposition of a $369,000 penalty ($100 per day) upon the husband's Mississippi employer under the Illinois Withholding statute in In re Marriage of Gulla. The total amount of support that the employer failed to withhold was only $7,854.56.

The employer initially argued that the Illinois Court lacked jurisdiction over it. The Appellate Court quickly disposed of this argument. Mississippi had a law, as required by the United State's Code, that treats an out of state withholding order for child support as if it originated from a Mississippi Court. Since the employer had been served with the withholding order by certified mail, return receipt requested, as specified in the Illinois withholding statute, the trial court correctly concluded that it had jurisdiction over the Mississippi employer.

The employer then made several equitable arguments; all of which failed. The employer claimed it was advised by the husband's attorney that he and his former wife had reached an agreement and the employer did not have to honor the withholding order. The employer also argued the withholding order obligated it to withhold more than the employee earned and more than was allowed by state and federal law. The Appellate Court rejected this argument, as the withholding order plainly stated the employer was limited in withholding the amount stated in the order or whatever was allowed by law.

Finally, the employer argued the statute was unconstitutional because the penalty was
totally disproportionate to the violation being punished. The Appellate Court denied this argument based upon the recent Illinois Supreme Court decision in In re Marriage of Miller, 227 Ill. 2d 185, 198, 203 (2007).

The full text of the Gulla opinion can be found at:

http://www.state.il.us/court/Opinions/AppellateCourt/2008/2ndDistrict/May/2070387.pdf

This case along with Miller show the Courts' willingness to apply and uphold the penalty provisions of statutes designed to help collect child support in Illinois. These rulings will no doubt cause practitioners to add this as a weapon to their arsenals in collecting child support for their clients.