January 2014Volume 102Number 1Page 10

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Supreme court requires strict compliance for garnishment notices

Serving a withholding notice on a child-support obligor's employer? Make sure to include the required information (think social security number) or the employer won't be forced to comply.

Small mistakes can have big consequences for the validity of a garnishment notice filed under the Illinois Income Withholding for Support Act, the supreme court has ruled.

Divorcing spouses or their attorneys serve such notices on employers to inform them of their duty to withhold income from an ex-spouse employee who is subject to garnishment pursuant to a court order for child support or spousal maintenance.

In Schultz v. Performance Lighting Inc., 2013 IL 115738, a unanimous Illinois Supreme Court held that under state and federal law, a notice of withholding is valid even if the obligee fails to sign it. However, the notice is invalid and nonbinding if it does not contain all of the several pieces of information enumerated in and required by the state withholding act (750 ILCS 28/1, et seq.) and the federal Child Support Enforcement Act (42 U.S.C. § 651, et seq.).

Regular on its face?

In Schultz, the ex-wife's lawyer served a notice of withholding on the ex-husband's employer, Performance Lighting, but the notice failed to include the ex-husband's social security number, along with some other pieces of information expressly required by the state Act. The employer did not comply with the notice and never withheld any funds from the ex-husband's paychecks.

Some two years later, the plaintiff sued Performance Lighting under a provision of the state Act that provides a penalty of $100 per day against employers who knowingly fail to comply with a court order for garnishment after having been served with a notice of withholding that is "regular on its face."

The supreme court affirmed the lower court judgment for the defendant after finding that strict compliance with the provisions of the state Act is required for withholding orders and notices, and the failure to include the ex-husband's social security number in the notice prepared by the wife's attorney meant that the document was not "regular on its face" and did not impose any duty to withhold on the employer.

"Even though the Illinois Income Withholding for Support Act does not define the term 'regular on its face,' our Act must be read in conjunction with the federal Child Support Enforcement Act," Justice Robert Thomas wrote for the court.

Like the trial and appellate courts below, the supreme court justices determined that under the federal Act, the duty of the employer to withhold is triggered only upon receipt of a notice that complies with the standard format prescribed by the federal government.

"It would be reasonable then to assume that 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," the court stated. "We have reviewed that form and it unequivocally requires that the sender of the notice must include in the notice the '(e)mployee/obligor's Social Security number or other taxpayer identification number.'"

Furthermore, the court found the state Act required strict compliance with its provisions by using the word "shall" in the statute and by "specifically singl[ing] out the lack of an obligee's signature as an omission that would not affect the validity of the notice," as the court put it. "Under the maxim of expressio unius est exclusio alterius, the enumeration of an exception in a statute is considered to be an exclusion of all other exceptions. In sum, there can be a lack of compliance with the signature requirement, but there must be strict compliance with all the other subsections" of the state Act.

'It's not the employer's job'

Thus, since the plaintiff's notice was invalid, the courts ruled that Performance Lighting had no duty to garnish the ex-husband's wages, and it was not liable for the monetary penalties in the state Act because the notice of withholding was not "regular on its face."

"I think that's the right decision because this entire section [of the state Act] deals with punishing employers who are not directly involved with the [child-support] proceedings…they are one step removed," said family law attorney Lisa M. Nyuli, who is a partner with Ariano, Hardy, Ritt, Nyuli, Richmond, Lytle & Goettel P.C.

"It puts too much of a burden on the employer to be responsible for
complying with notices that do not contain the required information," said Nyuli, who also sits on the ISBA Board of

Nyuli said this court decision strikes a proper balance between the interplay of the state and federal laws and with the rights and interests of all the parties involved.

"This case balances people getting their child support on the one hand with the fact that [the defendant in this case] is not the child-support obligor but is the payor to the obligor and is one step removed," Nyuli said. "It's just supposed to be a mechanism to enforce the court's withholding order and...it's not the employer's job to second-guess the underlying support order - it's the employee's job."

Adam W. Lasker <alasker@ancelglink.com> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

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