{ "id": 2547763, "name": "JEAN K. JAKUBIK, n/k/a Torchy Chirafisi, Plaintiff-Appellee, v. JAMES C. JAKUBIK, Defendant-Appellant", "name_abbreviation": "Jakubik v. Jakubik", "decision_date": "1991-01-24", "docket_number": "No. 2\u201490\u20140272", "first_page": "119", "last_page": "127", "citations": [ { "type": "official", "cite": "208 Ill. App. 3d 119" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "131 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3438009 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0387-01" ] }, { "cite": "110 Ill. App. 611", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2558396 ], "weight": 2, "pin_cites": [ { "page": "618" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/ill-app/110/0611-01" ] }, { "cite": "124 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217607 ], "weight": 3, "pin_cites": [ { "page": "271" }, { "page": "270" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0265-01" ] }, { "cite": "105 Ill. 2d 330", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142427 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0330-01" ] }, { "cite": "94 Ill. 2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106963 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0138-01" ] }, { "cite": "103 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152411 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "277" }, { "page": "283-84", "parenthetical": "exempt status of income no defense to contempt proceeding for failure to pay support obligation" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0266-01" ] }, { "cite": "242 Ill. 524", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5654010 ], "weight": 2, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill/242/0524-01" ] }, { "cite": "77 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3292107 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0136-01" ] }, { "cite": "134 Ill. App. 3d 63", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637515 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "69" }, { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0063-01" ] }, { "cite": "15 Ill. App. 2d 109", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5175811 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0109-01" ] }, { "cite": "28 L. Ed. 512", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3507478 ], "weight": 6, "pin_cites": [ { "page": "513-14" }, { "page": "524-25" }, { "page": "514" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/us/111/0542-01" ] }, { "cite": "48 Ill. App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3370129 ], "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0110-01" ] }, { "cite": "59 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959304 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0522-01" ] } ], "analysis": { "cardinality": 712, "char_count": 15399, "ocr_confidence": 0.727, "pagerank": { "raw": 1.3726266795446744e-07, "percentile": 0.6385860720065146 }, "sha256": "dba44e12bb0102f60378770bd67e3e5ac73a21ba0c039538ae67c389260262e8", "simhash": "1:d8b2fd0fb27434eb", "word_count": 2458 }, "last_updated": "2023-07-14T21:36:42.825942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEAN K. JAKUBIK, n/k/a Torchy Chirafisi, Plaintiff-Appellee, v. JAMES C. JAKUBIK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE NICKELS\ndelivered the opinion of the court:\nDefendant, James C. Jakubik, appeals the entry of a garnishment judgment order by the circuit court of Du Page County garnishing his individual retirement account (IRA) with Fidelity Management Trust Company (Fidelity), which is located in Massachusetts. Richard F. Lanciloti (wife\u2019s attorney) represented defendant\u2019s ex-wife, Jean K. Jakubik, n/k/a Torchy Chirafisi, in a post-dissolution proceeding to obtain an order increasing plaintiff\u2019s child support and for the payment of future college education costs: The court awarded attorney fees, the amount of which is not appealed, directly to wife\u2019s attorney in connection with those proceedings. Wife\u2019s attorney obtained a non-wage garnishment of husband\u2019s IRA account and a turnover order to enforce that award. On subsequent motions to reconsider and to vacate the turnover order (garnishment judgment), defendant asserted section 12 \u2014 1006 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 12 \u2014 1006), which exempts the IRAs from judgment. The court rejected defendant\u2019s argument, holding that Illinois\u2019 strong public policy favoring collection of child support and maintenance obligations created an exception to the property exemption statute for attorney fees incurred in collection of support obligations. We reverse.\nThis court first addresses the choice-of-law question raised by wife\u2019s attorney, which we find not well taken.\nFidelity, the custodian of defendant\u2019s IRA, is located in Massachusetts. Fidelity\u2019s custodial agreement included a choice-of-law provision stating that Massachusetts law would control. Thus, wife\u2019s attorney asserts that Massachusetts law, which does not contain a property exemption for IRAs, governs the execution of judgment by garnishment of defendant\u2019s IRA in this instance.\nGenerally, contract choice-of-law questions are dictated by the terms of the contract itself, and a court will not disturb the parties\u2019 choice of what law will govern disputes arising between them under their contract. (Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522.) However, wife\u2019s attorney was not a party to the contract he asserts as a basis for applying Massachusetts law. Therefore, wife\u2019s attorney was neither bound by its terms, nor can he invoke its terms as a bar to the application of Illinois law. Iser Electric Co. v. Ingran Construction Co. (1977), 48 Ill. App. 3d 110, 113.\nSpindle v. Schreve (1884), Ill U.S. 542, 28 L. Ed. 512, 4 S. Ct. 522, cited by wife\u2019s attorney, is not controlling in that it addresses the validity of a trust containing a provision in restraint of alienation, not the application of an exemption from judgment. (111 U.S. at 547-48, 28 L. Ed. at 513-14, 4 S. Ct. at 524-25.) The Court further found the bankruptcy trustee\u2019s attempt to reach the property to satisfy creditors moot, either by the nonalienation provision itself or by a prior blanket conveyance of all the bankrupt\u2019s assets if the provision was, in fact, invalid. Thus, it was unnecessary to resolve the choice-of-law issue raised by the trustee. 111 U.S. at 548, 28 L. Ed. at 514, 4 S. Ct. at 525.\nIt was the court\u2019s exercise of its powers to enforce its own order, which arose from the underlying marriage contract between defendant and his former spouse, and its eventual dissolution, that framed the issue for choice-of-law determination. Thus, Illinois law applies because the parties have invoked the statutory power of the Illinois courts to grant dissolution. (Morrow v. Morrow (1957), 15 Ill. App. 2d 109.) Further, Illinois applies the most significant contacts rule in contract actions where the parties have neglected to make an effective choice of law. (See Illinois Tool Works, Inc. v. Sierracin Corp. (1985), 134 Ill. App. 3d 63, 69.) Thus, Illinois as the parties\u2019 domicile and where the contract was both executed and to be performed has the most significant contacts to this action. See Illinois Tool Works, 134 Ill. App. 3d at 69, citing Champagnie v. W.E. O\u2019Neil Construction Co. (1979), 77 Ill. App. 3d 136.\nHaving determined that Illinois law applies, section 12 \u2014 1006 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 \u2014 1006) exempts defendant\u2019s IRA from judgment, subject to statutory exceptions. Child support and maintenance obligations are subject to such a statutory exception. Generally, however, attorney fees enjoy no exception to the exemption statutes. Wife\u2019s attorney argues that fees generated during a proceeding that concerns the support obligation assume the same quality as the support obligation and, therefore, enjoy the same benefit of statutory exception from the property exemption statutes as child support and maintenance obligations.\nInitially, we note that Bobowski v. Bobowski (1909), 242 Ill. 524, cited by wife\u2019s attorney, is not controlling. In Bobowski, the court was expressly authorized by statute to dispose of a spouse\u2019s homestead exemption at the time of the divorce settlement. (Bobowski, 242 Ill. at 530.) The supreme court found that the creation of lien at the time of the divorce upon the real property of the husband for alimony and attorney fees was an implicit disposal of the husband\u2019s homestead exemption for that property. Thus, at the time the judgment was executed against the real property, no exemption existed. In contrast in this instance, defendant\u2019s property exemption for his IRA remained intact at the time of the garnishment judgment.\nBecause wife\u2019s attorney asserts that attorney fees incurred in obtaining a modification of child support obligations enjoy the same exception from the property exemption statutes as child support and maintenance obligations, our inquiry begins with the language of the statutes that are the basis of the support obligation exception. The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature in interpreting the language of a statute. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) Clear language must be given effect without resort to extrinsic aids. People v. Boykin (1983), 94 Ill. 2d 138, 141.\nThe withholding provisions for child support and maintenance of both section 706.1 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1983, ch. 40, par. 706.1) and section 1107.1 of the Non-Support of Spouse and Children Act (the Non-Support Act) (Ill. Rev. Stat. 1983, ch. 40, par. 1107.1) expressly take precedence over contrary laws. \u201cAny other State or local laws which limit or exempt income [available to pay child support or maintenance] shall not apply.\u201d (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(A)(4)(e); ch. 40, par. 1107.1(4)(e).) So, too, both allow withholding of income \u201cregardless of source\u201d for the purpose of securing support obligations. (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(A); ch. 40, par. 1107.1.) Thus, the express language of the Dissolution Act and the Non-Support Act unequivocally creates an exception to the personal property exemption statutes for child support and maintenance obligations without mention of attorney fees.\nFurther, the withholding provision of the Non-Support Act is clearly addressed to a spouse who has refused to recognize his responsibility to support his family. (Ill. Rev. Stat. 1983, ch. 40, par. 1101.) So, too, the original withholding provision of the Dissolution Act was originally limited to only delinquent obligors. (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(B).) The Dissolution Act\u2019s revision, effective in 1989, allowed an order of withholding to be entered immediately upon the initial order of support only if no agreement between the spouses that adequately assured payment of the support obligation had been reached. (Ill. Rev. Stat. 1989, ch. 40, par. 706.1(B).) However, even as revised, it is clear that an order of withholding is only required when an obligor has been or is delinquent, and an order of withholding remains within the discretion of the court when support obligations are being timely met. Thus, the focus of the withholding provisions of both the Non-Support Act and the Dissolution Act is the delinquent obligor and not a spouse who is timely meeting his or her support obligations. Here the obligations that were the basis for attorney fees were future obligations.\nIn granting wife\u2019s attorney his fees, it was the incurring of attorney fees in connection with collection of support obligation that swayed the trial court: \u201cThe court in finding at this time that based on Bobowski, that public policy reasons would require that the exemption provided for in the statute would not extend to fees which were reduced to judgment for the collection of child support.\u201d Thus, the court, too, focused on the delinquent status of the obligor. However, the facts in this instance are that the fees were generated not in collection of past-due child support, but rather to modify and enlarge defendant\u2019s future obligation.\nThe cases cited by wife\u2019s attorney interpreting the language of the Dissolution Act and the Non-Support Act offer no basis upon which this court may extend the exception to permit garnishment of an IRA to satisfy a judgment for attorney fees. In both Logston and In re Support of Matt (1985), 105 Ill. 2d 330, the exempt property was taken to satisfy unpaid support obligations. (See, Logston, 103 Ill. 2d at 283-84 (exempt status of income no defense to contempt proceeding for failure to pay support obligation); In re Support of Matt (1985), 105 Ill. 2d 330 (exempt status of spendthrift trust income did not prevent the garnishment of the income, but not principal, from the trust to pay past-due child support).) Thus, the language of both the Dissolution Act and the Non-Support Act contains no clear indication of a legislative intent to create an exception to property exemption statutes for attorney fees generated in connection with support obligations. Rather, the language of the Dissolution Act and Non-Support Act is that only support obligations enjoy the exception from property exemption.\nWife\u2019s attorney argues the public policy that supports the Dissolution Act and the Non-Support Act warrants the extension of the exception he seeks. Wife\u2019s attorney correctly summarized the public policy that underpins both the provisions of the Dissolution Act and the Non-Support Act, which is to ensure that support judgments are enforced by all available means. (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 271.) Our supreme court has recognized a \u201cnational child support crisis.\u201d (Sheppard, 124 Ill. 2d at 270.) The withholding provisions of the Dissolution Act and the Non-Support Act \u201cfulfillD an important social need in terms of declaring an obligation of support and improving Illinois\u2019 method of enforcement\u201d through a more disciplined and uniform approach. Sheppard, 124 Ill. 2d at 272.\nHowever, the public policy that supports the various personal property exemption statutes is identical to that which is the basis of the Dissolution Act and the Non-Support Act. The property exemptions allow a debtor to retain sufficient assets so that he or she may continue to meet family obligations of support, thereby avoiding the public expense of assuming such obligations. Logston, 103 Ill. 2d at 279.\nWife\u2019s attorney argues that, absent the ability to collect awarded fees, a spouse will be unable to obtain representation to protect his or her rights. However, wife\u2019s attorney is free to enforce his judgment against other of defendant\u2019s nonexempt assets, as may any other judgment creditor. Illinois\u2019 public policy favors the payment of child support and maintenance obligations from exempt property to promote the support of the family, not the support of attorneys. Indeed, payment of attorney fees from sources held exempt for family obligations could deplete such resources so as to leave no assets available to satisfy the support obligation itself. The attorney fees as an extension of the exception would thus defeat the support obligation that is the very essence of the exception. The long and well-established public policy enunciated in the Dissolution Act and the NonSupport Act, as well as the property exemption statutes, is to maintain assets for family support. That policy would be subverted, not promoted, if exception to the personal property exemptions was extended to attorney fees.\nHaving decided that the court erred in allowing garnishment of defendant\u2019s IRA in execution of a judgment for attorney fees, we now turn to wife\u2019s attorney\u2019s liability for improper garnishment of exempt property. Section 12 \u2014 1005 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 12 \u2014 1005) imposes civil liability of double the value of the exempt property improperly taken. Wife\u2019s attorney argues that section 12\u2014 1005 is inapplicable because his conduct was taken in good faith based upon the published law, and also a good-faith argument for the extension, modification, or reversal of existing law.\nSection 12 \u2014 1005 does not contain a requirement of unreasonable conduct or bad faith. Although an available remedy for nearly 100 years, little case law exists interpreting it and none in the last 50 years. However, the purpose of section 12 \u2014 1005 is punitive. (See, e.g., Johnson v. Larcade (1903), 110 Ill. App. 611, 618.) It imposes a penalty of double the value of property improperly seized upon an officer who fails to ascertain the exempt status of such property. (Ill. Rev. Stat. 1983, ch. 110, par. 12 \u2014 1005; Johnson, 110 Ill. App. at 618.) Thus, section 12 \u2014 1005 is analogous in purpose to section 2\u2014 611, which imposes the penalty of an opponent\u2019s attorney fees upon an attorney who fails adequately to investigate a claim prior to bringing suit. (See Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 611.) Therefore, by further analogy, the good-faith or honest-mistake defense to a section 2 \u2014 611 claim should also be extended to a claim for a penalty under section 2 \u2014 1005. See Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387.\nAlthough section 12 \u2014 1006 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 \u2014 1006) exempting defendant\u2019s IRA from judgment was effective August 30, 1989, it was not published until October 1989, one month after the garnishment proceeding. Section 12 \u2014 1006 contains a special effective date, some 10 months earlier than that which would normally occur. Wife\u2019s attorney\u2019s conduct was based on the law as was available to him at the time he instituted garnishment proceedings against the defendant\u2019s IRA. We find that because of the peculiar timing of the action taken in this case, wife\u2019s attorney acted reasonably and in good faith, and section 12 \u2014 1005 does not impose liability upon wife\u2019s attorney of double the value of the exempt property improperly taken.\nThe judgment of the circuit court garnishing defendant\u2019s IRA is reversed, and the cause is remanded for further proceedings not inconsistent with this decision.\nReversed and remanded.\nINGLIS and BOWMAN, JJ., concur.", "type": "majority", "author": "JUSTICE NICKELS" } ], "attorneys": [ "James C. Jakubik, of Libertyville, appellant pro se.", "Richard F. Lanciloti, of Roselle, for appellee." ], "corrections": "", "head_matter": "JEAN K. JAKUBIK, n/k/a Torchy Chirafisi, Plaintiff-Appellee, v. JAMES C. JAKUBIK, Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140272\nOpinion filed January 24, 1991.\nRehearing denied March 6, 1991.\nJames C. Jakubik, of Libertyville, appellant pro se.\nRichard F. Lanciloti, of Roselle, for appellee." }, "file_name": "0119-01", "first_page_order": 141, "last_page_order": 149 }