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Family Law FLASHPOINTS September 2019

September 13, 2019Print This Post Print This Post

Donald C. Schiller & Michelle A. Lawless
Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton
312-641-5560 | E-mail Donald Schiller | E-mail Michelle Lawless

Employer Does Not Have Ability To Contest Validity of Underlying Support Order Subject to Notice To Withhold

In In re Marriage of Hundley, 2019 IL App (4th) 180380, a procedurally complex case involving a second appeal, an ex-wife brought a complaint against her former husband’s employer, alleging it had knowingly failed to make support payments through the State Disbursement Unit (SDU). The trial court originally dismissed the wife’s complaint, but the Fourth District reversed and remanded. The case went up on appeal again after trial on the remand. Central to the issues were the fact that the company was withholding the money from the husband’s paycheck, but the money was not sent to SDU even after the company received a nonreceipt notice. On appeal, one of the many arguments the employer raised was the validity of the notice for withholding because it allegedly contradicted the support order. The appellate court held, however, that the statute does not allow a third-party respondent (employer) to contest the validity or correctness of an underlying support order. If a notice is contradictory to a court order on its face, the employer must still comply with the notice and the obligor (employee) must challenge the discrepancy. The statute also provides that an employer must continue to make payments under a notice that has an incorrect stated amount of withholding until an amended notice is served. The legislature did not give employers the right to contest the substance of the underlying support orders. Furthermore, with respect to the employer’s argument that the notice was incorrect, the appellate court noted that the company immediately began withholding the money from the husband’s check, which meant it was operating under the assumption that the support order was valid.

Imposed Penalty for Employer’s Knowing Violation of Notice To Withhold Upheld

In Hundley, supra, after an employer mistakenly failed to send support payments to SDU pursuant to a notice to withhold and after receiving nonreceipt notice, the trial court held that the original violation was not committed knowingly, but it became knowing once the nonrecipt notice was received and nothing was done to remedy the situation. Several employees testified regarding the company’s process and procedure for implementing a notice to withhold, and it was undisputed that the money was deducted from the husband’s paycheck in accordance with the notice. However, the funds were not sent to SDU. The employer admitted it was a terrible mistake and could offer no explanation for why it did not correct the error after the nonreceipt notice was received. When imposing the monetary fine, the trial court calculated the penalty from the date the nonreceipt notice was received rather than the original date the notice was sent because that was when the violation became “knowing.” The wife appealed, asking the court to impose the penalty for the entire period of noncompliance. The appellate court noted that the statute was amended in 2012 because the legislature intended to punish only those employers who knowingly failed to comply with the Income Withholding for Support Act, 750 ILCS 28/1, et seq. Therefore, the trial court properly assessed the penalty for only the time period during which the employer committed a “knowing” violation.

United States Is Proper Country To Hear Custody Determination Under Hague Convention

At issue in Carvahal Vasquez v. Gamba Acevedo, 931 F.3d 519 (6th Cir. 2019), was whether the United States or Colombia was the appropriate forum to hear a contested custody matter between two unmarried parents who were Colombian citizens and who intended to travel to the U.S. in 2016. The mother was denied a tourist visa and entered the U.S. illegally in 2016. However, the father and child obtained tourist visas and entered the country on the visas. For approximately a year and a half, the minor child resided with the mother and the mother’s family in Tennessee. The father visited twice and both times left the minor child in the U.S. with the mother. He subsequently filed a petition under the Hague Convention for wrongful retention of the child in the U.S. after the couple’s engagement broke off. The district court denied the petition, holding that the child had not been wrongfully retained in the U.S. under the parental-intent standard for choosing the child’s country of habitual residency. The court noted that there were several factual inconsistencies in both parties’ cases, but while it was unclear whether the father ever really intended to permanently move to the U.S., it was clearly the mother’s intention to stay in the U.S. with the child. The Sixth Circuit upheld the district court’s use of the parental-intent standard in determining the child’s habitual residence rather than the acclimatization standard because the child was two years old at the time of the alleged wrongful retention, and it was unclear whether he was actually cognizant enough to acclimatize to a country. The acclimatization standard, which is the standard generally used for school-age children, assesses what country the child is most acclimated to and where the child has the most meaningful connections with both people and places.

For more information about family law, see FAMILY LAW: CHILD-RELATED ISSUES IN DISSOLUTION ACTIONS — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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