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                                                                                                       SIXTH DIVISION
                                                                                                       September 1, 2000

No. 1-99-2982

Plaintiff, California-Peterson Currency Exchange, Inc., a judgment creditor, appeals from anorder of the circuit court discharging its citation to discover certain of defendant's assets and denying itsmotion for turnover of 85% of defendant's monthly earnings from Superior Bank FSB. We affirm.

On appeal, we consider whether defendant's compensation under a consulting contract fallswithin the definition of "wages" as defined by section 12-801 of the Code of Civil Procedure (WageDeduction Act) (735 ILCS 5/12-801 (West 1998)), such that defendant may exempt 85% of thatcompensation from collection pursuant to section 12-803 of the Wage Deduction Act (735 ILCS 5/12-803(West 1998)).

Plaintiff obtained a judgment against defendant in the amount of $206,922.19 plus costs. Tocollect this judgment, plaintiff filed an affidavit for wage deduction order naming Superior Bank FSBas defendant's employer. Superior Bank filed a verified answer on which it had crossed out the word"employer" and substituted the word "agent" and referred to defendant as an "outside contractor." Because of Superior's answer, plaintiff filed a third-party citation to discover assets, claimingdefendant was not an "employee" but an "outside contractor" or "agent" to Superior. Superior answeredthat defendant had no accounts with Superior Bank FSB and that Friedman was an "outside contractor[per] prior court order taking 15% of monthly earnings." Superior provided plaintiff with a copy of theletter consulting agreement between Superior and defendant, copies of defendant's invoices to Superiorfrom March 19, 1999, to April 18, 1999, and a history of Superior's payments to defendant.

Plaintiff then filed a motion for turnover of assets alleging, inter alia, that based upon Superior'sverified answer to the wage deduction proceedings, Superior's answer to the citation, and documentstendered therewith, the monies Superior paid to defendant are not "wages" or "salary" as defined bysection 12-801 (735 ILCS 5/12-801 (West 1998)), and plaintiff is entitled to all monies paid by Superiorto defendant less the 15% being withheld per an earlier court order in another matter. Superior filed anemergency motion to discharge the citation alleging, inter alia, the compensation paid defendant waswages, salary, or commissions within the meaning of section 12-803 (735 ILCS 5/12-803 (West 1998)). The circuit court conducted a nonevidentiary hearing, concluded the monies defendant receivesfrom Superior fall within the provision of section 12-803 (735 ILCS 5/12-803 (West 1998)) as wages,salary or commission, discharged plaintiff's citation to discover defendant's assets and denied plaintiff'smotion for turnover of 85% of defendant's monthly earnings from Superior. Plaintiff appealed. Wereview the circuit court's decision de novo. In re Application of County Collector, 265 Ill. App. 3d 485,637 N.E.2d 679 (1994) (statutory interpretation); Davis v. Hass & Hass, Inc., 296 Ill. App. 3d 369, 694N.E.2d 588 (1998) (appeal from dismissal).

On appeal, plaintiff frames the issue in a specific, narrow fashion. Plaintiff contends thatSuperior's characterization of itself as an "agent" and of defendant as an "outside contractor" in its answerto plaintiff's wage deduction proceedings controls and places defendant's income from Superior beyondthe scope of the exception to wage deductions provided by sections 12-801 and 12-803 of the WageDeduction Act. 735 ILCS 5/12-801, 12-803 (West 1998). Plaintiff's argument extrapolates from thelegislature's use of the word "employer" that only common law "employees" are protected by theexception to wage deduction provided by section 12-803 and that independent contractors are excludedfrom the exception even if their income is earned through labor. Plaintiff is in error.

The label given by the parties in a written agreement is not dispositive of the employment status,but the facts of the case must be considered to determine what the individual's employment status is. Earley v. Industrial Commission, 197 Ill. App. 3d 309, 317, 553 N.E.2d 1112, 1118 (1990). Here, thecircuit court failed to conduct an evidentiary hearing to determine the circumstances of defendant'semployment. However, even assuming the circumstances of defendant's employment are outside thecommon law definition of "employee", it does not necessarily follow that this places his income as anindependent contractor beyond the scope of the exception to wage deductions provided by sections 12-801 and 12-803 of the Wage Deduction Act. 735 ILCS 5/12-801, 12-803 (West 1998).

As originally enacted, the Wage Deduction Act provided neither a definition of "employer" norany process for notifying a judgment debtor of an impending wage garnishment. Pub. Act 82-280, art.XII, part 8, eff. July 1, 1982. In Kirby v. Sprouls, 722 F. Supp. 516 (C.D. Ill. 1989), the Federal DistrictCourt for the Central District of Illinois declared the statute unconstitutional as a violation of dueprocess. The Illinois legislature responded by amending the statute to add a notice requirement and theright to a hearing. Pub. Act 86-1268, eff. November 5, 1990. As part of this amendment, the legislatureadded a provision to section 12-801, that defined "employer" simply as "the person named as employerin the affidavit filed under Section 12-805," and a provision to section 12-805, that required the named"employer" to provide "the information necessary to determine the proper amount of nonexempt wages"and to "certify that [this information] has been mailed or hand delivered to the judgment debtor." Pub.Act 86-1268,