                                         2017 IL App (3d) 160514

                               Opinion filed October 6, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     DENISE J. MARTINEZ,                             )     Appeal from the Circuit Court
                                                     )     of the 12th Judicial Circuit,
            Plaintiff-Appellant,                     )     Will County, Illinois.
                                                     )
            v.                                       )     Appeal No. 3-16-0514
                                                     )     Circuit No. 16-L-19
     THE COOK COUNTY SHERIFF’S                       )
     OFFICE and COOK COUNTY,                         )     The Honorable
     ILLINOIS,                                       )     John C. Anderson,
                                                     )     Judge, presiding.
           Defendants-Appellees.
     ____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Plaintiff, Denise J. Martinez, brought an action under the Income Withholding for

     Support Act (Withholding Act) (750 ILCS 28/35 (West 2014)) against defendants, the Cook

     County sheriff’s office and Cook County, to obtain a money judgment of over $50,000 for

     defendants’ failure to withhold approximately $1600 in maintenance from plaintiff’s ex-

     husband’s paychecks. Defendants filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West

     2014)) motion to dismiss the complaint, alleging that plaintiff was not entitled to the money

     judgment requested because (1) the failure to withhold maintenance was the result of an innocent
     mistake on the part of one of defendants’ employees and was not knowingly done and (2) the

     claim for a money judgment was barred by the Local Governmental and Governmental

     Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West 2014)). After a

     hearing, the trial court agreed with defendants’ contentions and granted defendants’ motion to

     dismiss. Plaintiff appeals. We affirm the trial court’s judgment.

¶2                                                 FACTS

¶3          Plaintiff was married to Salomon Martinez. Salomon was employed by Cook County and

     worked for the sheriff’s office. Plaintiff and Salomon were divorced in May 2014. Pursuant to

     the judgment for dissolution of marriage that was entered, Salomon was ordered to pay child

     support for the parties’ two minor children and maintenance of $500 per month.

¶4          In May 2015, an amended support order was entered, terminating the child support

     payments but continuing the maintenance payment of $500 per month. The maintenance

     payment was to be automatically deducted from Salomon’s paycheck by his employer and sent

     directly to the Illinois State Disbursement Unit.

¶5          In June 2015, Salomon faxed a notice of the change in withholding to the Cook County

     comptroller’s office. The notice consisted of several pages. The first page of the notice was a fax

     coversheet from Salomon, indicating that the documents he was sending to the comptroller were

     in regard to “[t]ermination of child support.” The second page of the notice was a letter from

     Salomon’s attorney, stating that Salomon’s child support payments had been terminated by the

     court in May 2015 (the May 2015 court date) and directing the comptroller’s office to “cease any

     current withholdings.” The third page of the notice was a one-page court order, which had been

     entered on the May 2015 court date. The text of the order was hand-printed and continued the

     underlying case to a date in June 2015 for a status hearing on plaintiff’s petition for


                                                         2
     postjudgment relief. The fourth and fifth pages of the notice were a two-page court order that had

     also been entered on the May 2015 court date. The text of the order was handwritten in cursive,

     was somewhat difficult to read, and stated, among other things, that child support for the two

     children was terminated. The order made no mention of Salomon’s maintenance obligation. The

     sixth through eleventh pages of the notice were an amended income withholding order for

     support from the same May 2015 court date. The order indicated that the amount to be withheld

     from Salomon’s paychecks for spousal maintenance was $500 per month ($230.77 biweekly)

     and that the child support for the two children had been terminated.

¶6          The faxed notice was received by comptroller wage garnishment clerk Laura Murray.

     Murray promptly acted upon the information and terminated the withholding from Salomon’s

     paycheck for child support. In addition, however, Murray erroneously terminated the

     withholding from Salomon’s paycheck for spousal maintenance. As a result of the error, plaintiff

     did not receive her spousal maintenance payments for the following seven dates in 2015: June 5,

     June 19, July 3, July 17, July 31, August 14, and August 28.

¶7          Toward the end of August 2015, plaintiff’s attorney faxed a letter to the Cook County

     sheriff’s office to notify them that plaintiff had not been receiving her spousal maintenance

     payments and that the attorney had filed a petition for rule to show cause in the underlying case.

     A copy of the amended income withholding order from the May 2015 court date was attached to

     the letter. The letter was apparently forwarded to the comptroller’s office and was received by

     the comptroller’s office shortly thereafter in September 2015.

¶8          Upon receiving the letter from the plaintiff’s attorney, comptroller clerk Murray promptly

     corrected the error that she had made and immediately reinstated the withholding from

     Salomon’s paycheck for monthly spousal maintenance. The withholding went into effect as of


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       the next pay period. Salomon later paid to plaintiff the entire amount of spousal maintenance that

       the comptroller’s office had failed to withhold from his paychecks.

¶9            In January 2016, plaintiff filed the instant action against defendants, alleging that

       defendants had knowingly failed to withhold the seven monthly maintenance payments and

       seeking the assessment of a statutory penalty against defendants of over $50,000 under section

       35(a) of the Withholding Act (see 750 ILCS 28/35(a) (West 2014) (providing for the imposition

       of a $100-per-day penalty on any payor who knowingly fails to follow a withholding order)).

¶ 10          In April 2016, defendants filed a section 2-619(a)(9) motion to dismiss the complaint,

       alleging that dismissal was warranted because defendants had not knowingly violated the statute

       and because plaintiff’s claim was barred by the Tort Immunity Act. Attached to the motion were

       various supporting documents, including (1) the faxed notice that the comptroller’s office had

       received from Salomon and his attorney in June 2015, (2) the faxed letter that the comptroller’s

       office had received from plaintiff’s attorney in September 2015, and (3) an affidavit of

       comptroller clerk Laura Murray. In her affidavit, Murray attested to many of the facts set forth

       above. In addition to those facts and in explanation of how the error occurred, Murray stated

       further in her affidavit that as she reviewed the notice from Salomon and his attorney (1) she

       read on the cover page that the notice pertained to termination of child support; (2) she read the

       letter from Salomon’s attorney on the second page of the notice, which stated that Salomon’s

       obligation to pay child support was terminated by the May 2015 court order and specifically

       requested that Murray “cease any current withholdings”; (3) she reviewed the court orders

       contained in the notice; (4) on the one court order, which was handwritten (in cursive) and

       difficult to read, she underlined the phrase “terminated”; (5) she stopped reviewing the notice at

       that point because she had come across the court order that Salomon and his attorney had both


                                                        4
       mentioned in the first two pages of the notice; and (6) she then changed the withholding amount

       for Salomon’s paycheck to zero. Murray also stated that (1) as soon as she received notice of the

       error from plaintiff’s attorney, she corrected the error; (2) the failure to withhold spousal

       maintenance was the result of a mistake and was not intentional; and (3) she reviewed and acted

       on the June 2015 notice to the best of her abilities, given the clear direction by Salomon’s

       attorney to “cease all withholdings,” which was supported by the cover page and the handwritten

       court order.

¶ 11          Plaintiff filed a response and opposed the motion to dismiss, and defendants filed a reply

       to that response. In July 2016, a hearing was held on the motion. After listening to the arguments

       of the attorneys, the trial court took the motion under advisement. The trial court later issued a

       written order granting defendants’ section 2-619(a)(9) motion to dismiss “for the reasons

       asserted in the motion itself,” and adopting “the rationale [and] arguments of the [defendants].”

       Plaintiff appealed.

¶ 12                                               ANALYSIS

¶ 13          On appeal, plaintiff argues that the trial court erred in granting defendants’ section 2-619

       motion to dismiss plaintiff’s complaint for money judgment (for the assessment of a section 35

       statutory penalty against defendants). Plaintiff asserts that the motion to dismiss should not have

       been granted because (1) defendants’ claim that the violation of the Withholding Act was not

       knowingly done was merely a negation of one of the elements of a violation of the statute and

       was not a proper affirmative matter to warrant dismissal under section 2-619(a)(9); (2)

       defendants failed to show that no set of facts could be proved that would entitle plaintiff to

       recover, as defendants were required to show to obtain a section 2-619 dismissal; (3) several

       material questions of fact existed, which should have prevented defendants from prevailing on


                                                         5
       their section 2-619 motion to dismiss; (4) Murray’s affidavit, which merely set forth the evidence

       that defendants would expect to present to contest the facts alleged in the plaintiff’s complaint

       (to show that the failure to withhold was not knowingly done) was insufficient to support a

       dismissal under section 2-619(a)(9); and (5) the Tort Immunity Act should not apply in this case

       to shield defendants from liability for the assessment of a statutory penalty under section 35 of

       the Withholding Act, since the task performed by Murray was not “official” or “discretionary” in

       nature, Murray’s conduct in failing to carefully review the documents that she had received

       constituted willful and wanton conduct, the penalty under section 35 of the Withholding Act is

       not punitive in nature, and there are several important public policy reasons for not applying the

       Tort Immunity Act in this context. For all the reasons stated, plaintiff asks that we reverse the

       trial court’s order granting defendants’ section 2-619 motion to dismiss the plaintiff’s complaint

       for money judgment and that we remand this case for further proceedings.

¶ 14          Defendants argue that the trial court’s ruling was proper and should be upheld. In support

       of that argument, defendants assert that (1) plaintiff did not state a claim for the assessment of a

       penalty against defendants under section 35 of the Withholding Act, since plaintiff did not (and

       could not) establish that a knowing failure to withhold maintenance had occurred; (2) although

       the evidence in this case gave rise to the statutory presumption of a knowing failure to withhold

       maintenance, defendants rebutted that presumption with Murray’s affidavit and showed that

       defendants had not knowingly failed to withhold maintenance; (3) the failure to withhold

       maintenance in this case was not knowingly or intentionally done but, rather, was the result of an

       unintentional and honest mistake, which occurred due to the multiple and conflicting documents

       that Murray had received from plaintiff’s ex-husband and his attorney and the direction that

       Murray had received from plaintiff’s ex-husband’s attorney to “cease any current withholdings”;


                                                         6
(4) Murray acted promptly upon the notice that she had received from plaintiff’s ex-husband and

his attorney to change the withholding initially and, upon receiving notice from plaintiff of the

mistake, acted promptly to correct it; (5) case law supports the trial court’s conclusion that a

statutory penalty under section 35 of the Withholding Act is not warranted in a situation, such as

this, where the employer did not knowingly violate the Withholding Act; (6) no person

interpreting the facts in this case could reasonably conclude that the actions of Murray

constituted a purposeful disregard of the trial court’s withholding order; (7) Murray’s affidavit

and the supporting documents do not contest any facts in the plaintiff’s complaint but, instead,

provide additional sworn testimony and documentary evidence to rebut the statutory presumption

of a knowing failure to withhold maintenance; (8) defendants’ claim that the violation was not

knowingly done and the evidence presented in support of that claim were entirely appropriate

and justify the trial court’s dismissal of the complaint under section 2-619(a)(9); (9) Murray was

a public employee, not a public official, and was not involved in policymaking or the exercise of

discretion, and plaintiff’s assertions of that nature should be disregarded, since defendants never

claimed that immunity applied on that basis; (10) the assessment of a section 35 statutory penalty

is punitive in nature, and the imposition of such a penalty against a public entity is barred by the

Tort Immunity Act; (11) plaintiff’s characterization of Murray’s conduct as willful and wanton is

misplaced and legally groundless and was asserted by plaintiff primarily to get around a possible

defense that defendants have never asserted; and (12) although plaintiff claims that questions of

material fact remain, there is no dispute as to the documents that Murray received in the June

2015 faxed notice. For all of the reasons stated, defendants ask that we affirm the trial court’s

grant of defendants’ section 2-619 motion to dismiss plaintiff’s complaint for money judgment.




                                                  7
¶ 15          Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary

       dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619

       (West 2014). The statute’s purpose is to provide litigants with a method for disposing of issues

       of law and easily proven issues of fact early in a case, often before discovery has been

       conducted. See Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003); Advocate Health

       & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section 2-619

       proceeding, the moving party admits the legal sufficiency of the complaint, but asserts an

       affirmative defense or other matter to defeat the nonmoving party’s claim. Van Meter, 207 Ill. 2d

       at 367. Section 2-619 lists several different grounds for which an involuntary dismissal may be

       granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2014). Under subsection (a)(9), the

       subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim

       asserted against him if the claim is barred by other affirmative matter, which avoids the legal

       effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2014). An “affirmative matter” is

       something in the nature of a defense that negates the cause of action completely. Van Meter, 207

       Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must construe all of the

       pleadings and supporting documents in the light most favorable to the nonmoving party. Id. at

       367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de novo. Id. at 368. When

       de novo review applies, the appellate court performs the same analysis that the trial court would

       perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. A trial court’s

       grant of a motion to dismiss a complaint may be affirmed on any basis supported by the record.

       Board of Trustees of Community College, District No. 508 v. Coopers & Lybrand LLP, 296 Ill.

       App. 3d 538, 543 (1998).




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¶ 16                       I. Application of Section 2-102 of the Tort Immunity Act

¶ 17          In ruling on this appeal, we will address first whether section 2-102 of the Tort Immunity

       Act bars the imposition of a statutory penalty against defendants under section 35 of the

       Withholding Act because that determination completely resolves this appeal. In making that

       determination, for the sake of argument, we will assume that defendants’ failure to withhold the

       designated amount from Salomon’s paychecks was done knowingly. With that assumption in

       place, we consider the relevant statutory provisions.

¶ 18          Section 35 of the Withholding Act provides for the imposition of a $100-per-day penalty

       on any payor who knowingly fails to follow a withholding order. See 750 ILCS 28/35(a) (West

       2014). The purpose of the penalty provision is to punish parties that violate the Withholding Act

       and to discourage future violations. See In re Marriage of Murray, 2014 IL App (2d) 121253,

       ¶ 47. The failure of a payor, on more than one occasion, to remit the amount withheld to the State

       Disbursement Unit within seven business days after the date the amount would have been paid or

       credited to the obligor creates a rebuttable presumption that the payor knowingly failed to pay

       over the amounts. See 750 ILCS 28/35(a) (West 2014); In re Marriage of Solomon, 2015 IL App

       (1st) 133048, ¶ 32. A separate violation of the Withholding Act occurs each time a payor

       knowingly fails to withhold the amount designated in the income withholding notice or fails to

       remit the amount withheld, and a statutory penalty under section 35 is to be assessed for each

       violation. Murray, 2014 IL App (2d) 121253, ¶ 16. The statutory penalty per violation, however,

       may not exceed $10,000. 750 ILCS 28/35(a) (West 2014). The section 35 statutory penalty may

       be collected by the recipient by bringing a civil action against the payor. See id.; Murray, 2014

       IL App (2d) 121253, ¶ 15.




                                                        9
¶ 19          The Tort Immunity Act’s purpose is to protect local public entities and public employees

       from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2014);

       Murray, 2014 IL App (2d) 121253, ¶ 36. “By providing immunity, the legislature sought to

       prevent public funds from being diverted from their intended purpose to the payment of damages

       claims.” Murray, 2014 IL App (2d) 121253, ¶ 36. In keeping with that legislative goal, section 2-

       102 of the Tort Immunity Act provides that:

                      “Notwithstanding any other provision of law, a local public entity is not liable to

                      pay punitive or exemplary damages in any action brought directly or indirectly

                      against it by the injured party or a third party. In addition, no public official is

                      liable to pay punitive or exemplary damages in any action arising out of an act or

                      omission made by the public official while serving in an official executive,

                      legislative, quasi-legislative or quasi-judicial capacity, brought directly or

                      indirectly against him by the injured party or a third party.” 745 ILCS 10/2-102

                      (West 2014).

       Thus, under section 2-102, punitive damages may generally not be assessed against a local public

       entity, such as the county in the instant case (although plaintiff sued both the sheriff’s office and

       the county, the county is the actual payor and is the true party defendant in this case). See 745

       ILCS 10/1-206, 2-102 (West 2014). Punitive damages are not awarded as compensation but,

       rather, serve to punish the offender and to deter the offender and others from committing similar

       acts of wrongdoing in the future. Murray, 2014 IL App (2d) 121253, ¶ 45 (citing Paulson v.

       County of De Kalb, 268 Ill. App. 3d 78, 80 (1994)).

¶ 20          To our knowledge, there are only a few Illinois appellate court cases that have

       determined whether the statutory penalty under section 35 of the Withholding Act constitutes


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punitive damages for the purposes of the Tort Immunity Act. In the Murray case, cited above,

the Second District of the Appellate Court found that the section 35 statutory penalty was

punitive in nature and constituted punitive damages. Id. ¶ 47. The Murray court noted that the

obvious purpose of allowing a plaintiff to recover the $100-per-day penalty for each knowing

violation was to punish parties that violated the Withholding Act and to discourage future

violations. Id. The Murray court commented that while actual damages recoverable under section

35 were intended to make the plaintiff whole again, the $100-per-day penalty served to increase

the award beyond merely compensation. Id. Finding that the section 35 statutory penalty

constituted punitive damages, the Murray court went on to conclude that section 2-102 of the

Tort Immunity Act and section 35 of the Withholding Act could be read together harmoniously

and that, pursuant to section 2-102 of the Tort Immunity Act, a section 35 statutory penalty could

not be assessed against a local public entity. Id. ¶¶ 48, 54-55. In reaching that conclusion, the

Murray court stated further that it would not disregard the phrase, “notwithstanding any other

provision of law,” contained in section 2-102 of the Tort Immunity Act; that it was declining to

read a limitation into section 2-102 that the legislature did not set forth in the statute; and that if

the legislature had intended to deny governmental entities immunity for claims provided for in

section 35 of the Withholding Act, the legislature could have explicitly stated as much. Id. ¶ 49.

In addition, the Murray court distinguished an earlier ruling that the Second District Appellate

Court had made in In re Marriage of Chen, 354 Ill. App. 3d 1004, 1022 (2004), in which the

Second District declined to apply the due process criteria used for common law punitive damage

claims to a statutory penalty assessed against an employer under section 35 of the Withholding

Act and stated that the case before it involved a statutory penalty, rather than an award of

punitive damages. Murray, 2014 IL App (2d) 121253, ¶¶ 51-53. Commenting on the decision in



                                                   11
       Chen, the Murray court stated that the fact that the amount of common law punitive damages

       was uncertain and the amount of the section 35 statutory penalty was definite did not render the

       former punitive and the latter compensatory for the purposes of section 2-102 of the Tort

       Immunity Act; rather, the overall character of both was punitive. Id. ¶ 53.

¶ 21          Another Illinois appellate court case that determined whether the section 35 statutory

       penalty constituted punitive damages is the Solomon case, cited above. See Solomon, 2015 IL

       App (1st) 133048, ¶ 26. In Solomon, the First District Appellate Court disagreed with the Second

       District’s conclusion in Murray and stated that the section 35 statutory penalty did not constitute

       punitive damages. Id. In reaching that conclusion, the Solomon court cited the statement made by

       the Second District Appellate Court in the earlier case of Chen, that the section 35 penalty was a

       statutory penalty and not an award of punitive damages. Id. The Solomon court went on to find,

       however, that section 2-102 immunity did not apply in that case because the defendant’s actions

       were ministerial in nature and not discretionary. Id. ¶ 30. Nevertheless, the Solomon court upheld

       the trial court’s refusal to impose a section 35 statutory penalty because the defendant’s failure to

       comply with the support order in that case resulted from an unintentional and honest mistake and

       not a knowing violation. Id. ¶¶ 34-35.

¶ 22          Having reviewed Murray, Solomon, and Chen, we find the reasoning in Murray to be the

       most persuasive on this issue. The purpose of the section 35 statutory penalty is clearly to punish

       those who violate the Withholding Act and to deter future violations—not to compensate the

       recipient of support for the payments that he or she did not receive. See Murray, 2014 IL App

       (2d) 121253, ¶ 47. We must conclude, therefore, as the Murray court did, that the section 35

       statutory penalty constitutes punitive damages for the purposes of section 2-102 of the Tort

       Immunity Act. See id.; see also Paulson, 268 Ill. App. 3d at 83 (reaching a similar conclusion as


                                                        12
       to a portion of a treble damages provision under a different statute). It follows, then, that

       defendants have immunity under section 2-102 of the Tort Immunity Act from the section 35

       statutory penalty in this case. See 745 ILCS 10/1-206, 2-102 (West 2014); Murray, 2014 IL App

       (2d) 121253, ¶¶ 54-55. The trial court, therefore, properly granted defendants’ section 2-619

       motion to dismiss plaintiff’s complaint for a money judgment as the money judgment was barred

       by section 2-102 of the Tort Immunity Act. See 745 ILCS 10/1-206, 2-102 (West 2014); Murray,

       2014 IL App (2d) 121253, ¶¶ 54-55; Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 331-32

       (2008) (recognizing that immunity under the Tort Immunity Act is a proper basis for a section 2-

       619(a)(9) dismissal).

¶ 23          In reaching that conclusion, we must take a moment to comment upon some of the

       assertions to the contrary made by plaintiff in this appeal. From a statutory interpretation

       standpoint, neither statute at issue in this case (section 35 and section 2-102) is ambiguous, and

       we agree with the Murray court that the two statutes can be read together harmoniously,

       especially in light of the prefatory “notwithstanding any other provision of law” language in

       section 2-102. See Murray, 2014 IL App (2d) 121253, ¶ 48. Thus, there is no reason for us to

       weigh the different policy interests supporting each statute or to determine which policy interests

       should be deemed more important.

¶ 24          In addition, we believe that plaintiff’s assertions regarding whether the wage garnishment

       clerk’s actions were done in an official capacity, whether the clerk’s conduct was discretionary

       or ministerial in nature, and whether the clerk’s actions constituted willful and wanton conduct

       are misplaced. Section 35 of the Withholding Act allows the recipient to bring a civil action

       against the payor to try to obtain the assessment of the statutory penalty for knowingly failing to

       withhold or remit support. 750 ILCS 28/35(a) (West 2014). The payor in this case is Cook


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       County, a local public entity for the purposes of the Tort Immunity Act. See 745 ILCS 10/1-206

       (West 2014). Defendants asserted in a section 2-619(a)(9) motion to dismiss local public entity

       immunity under section 2-102 of the Tort Immunity Act as other affirmative matter that defeats

       plaintiff’s claim for a section 35 statutory penalty. Although the factual circumstances in this

       case involve the conduct of a public employee, who is a wage garnishment clerk for the county

       comptroller’s office, this case does not involve a suit brought against that public employee or any

       public official, as they are not the payor of support. Defendants, therefore, did not assert public

       official or public employee immunity as other affirmative matter defeating plaintiff’s claim as

       there was no reason for them to do so. Thus, questions as to whether the wage garnishment

       clerk’s actions were made while serving in an official capacity, whether they were discretionary

       or ministerial, or whether they constituted willful and wanton conduct have no relevance to our

       determination here. See, e.g., District No. 508, 296 Ill. App. 3d at 544 (stating that the critical

       question to consider when application of the doctrine of public official immunity is asserted is

       whether the official’s or employee’s conduct was discretionary or merely ministerial).

¶ 25                                II. Other Assertions Made By the Parties

¶ 26          Because we have determined that plaintiff’s claim for the assessment of a section 35

       statutory penalty against defendants was barred by section 2-102 of the Tort Immunity Act and

       that defendants’ section 2-619(a)(9) motion to dismiss was properly granted on that basis, we

       need not address the other assertions made by the parties in support of their arguments on appeal.

       Most notably, we do not decide, and take no position on, the question of whether the failure to

       withhold maintenance in this case was done knowingly for purposes of the section 35 statutory

       penalty or the question of whether the lack of a knowing violation may properly be raised as

       other affirmative matter in a section 2-619(a)(9) motion to dismiss.


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¶ 27                                    CONCLUSION

¶ 28   For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 29   Affirmed.




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