A Million Dollar Chicago Child Support Penalty?

On November 29, 2007, the Supreme Court of Illinois upheld a failure to pay a child support penalty in the amount of $1,172,100.00. If you think this was an outrageous penalty that had no relation to the amount of actual child support owed, you are right. If you think the Illinois Supreme Court probably got this one wrong, you are probably right. However, any employer responsible for remitting child support payments on behalf of an employee certainly won’t be remitting those child support payments late anymore. Here are the facts: Lenora’s former husband, Harold, was ordered to pay Lenora child support in the amount of $82.00 per week. Harold worked for his father in his father’s architecture firm. Harold’s father properly received a Notice from Lenora’s attorney requiring Harold’s father, and his Architecture firm, to withhold $82.00 per week from Harold’s pay and remit this child support payment to Lenora on a weekly basis. The facts are as plain and simple as that.

As of January 1, 1999, the Illinois Legislature enacted a child support statute that provides for a $100.00 per day penalty for each child support payment which is not made in a timely fashion. For example, if an employer pays his employee a salary each week, the employer is required to withhold child support from his employee’s paycheck on a weekly basis. If the employer does not withhold the requisite child support and send the money to the custodial parent each week, then the penalty applies. If the employer does not remit child support payments for 2 and a half years, as Harold’s father failed to do, each of the weekly child support payments continue to incur a $100.00 per day penalty for each day the child support payments remain unpaid. There are 130 weeks in a 2 and a half year time period (52 weeks per year times 2 and a half years), and if an employer does not remit child support during a 2 and a half year period, each one of the 130 weekly delinquent child support payments accrues a penalty of $100.00 per day.

In the Miller case, Harold’s father (and employer) accumulated 11,721 penalty days at the rate of $100.00 per penalty, for a total of $1,172,100.00 in penalties. (As an aside, the unpaid child support totaled a mere $12,382.00.)

As you might expect, the Illinois Legislature has broad discretion and authority to impose fines and penalties for violations of its statutes. Indeed, such governmental authority has existed for years. The Illinois Supreme Court made several statements about this child support penalty, including the statement that “It is difficult to imagine a more compelling state interest than the support of children.” The Illinois Supreme Court also noted that it is impossible to quantify the harm suffered by custodial parents when they do not receive child support on a timely basis, which may prevent a custodial parent from purchasing essentials such as food and medicine for a child.

It is doubtful that the entire penalty will ever be paid; however, obligations to pay unpaid child support are non-dischargeable in bankruptcy, and therefore, will probably never be removed from the employer’s record.

In conclusion, it may well be that the penalty imposed on Harold Miller’s father/employer may well have been excessive, unreasonable, harsh, and oppressive. The penalty was nevertheless legal, enforceable, and will most certainly deter employers in the future from failing to withhold child support payments from employee paychecks and remitting these child support payments to the appropriate party.

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