2016 IL 118781
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118781)
JANE E. BLUMENTHAL, Appellant, v. EILEEN M. BREWER, Appellee.
Opinion filed August 18, 2016—Rehearing denied October 20, 2016.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in
the judgment and opinion.
Justice Theis concurred in part and dissented in part, with opinion, joined by
Justice Burke.
Justice Theis dissented upon denial of rehearing, with opinion, joined by Justice
Burke.
OPINION
¶1 In this case we are called on to consider the continued viability and applicability
of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held that Illinois
public policy, as set forth in this State’s statutory prohibition against common-law
marriage, precludes unmarried cohabitants from bringing claims against one
another to enforce mutual property rights where the rights asserted are rooted in a
marriage-like relationship between the parties.
¶2 The issue has arisen here in the context of an action brought by Dr. Jane E.
Blumenthal for partition of the family home she shared and jointly owned with
Judge Eileen M. Brewer. The couple had maintained a long-term, domestic
relationship and raised a family together but had never married. Blumenthal sought
partition of the residence when the relationship ended and she moved out.
¶3 The partition action itself presented no question under Hewitt. The problem
arose when Brewer counterclaimed for various common-law remedies, including
sole title to the home as well as an interest in Blumenthal’s ownership share in a
medical group so that the couple’s overall assets would be equalized now that the
couple had ended their relationship. Blumenthal moved to dismiss, asserting that
the various counts of the counterclaim should fail as a matter of law under Hewitt,
which rejected a woman’s suit to divide assets she accumulated with a man during a
long-term relationship in which they lived together, had three children together, but
never married. The circuit court agreed, and the counterclaim was dismissed in full.
¶4 The underlying partition action between Blumenthal and Brewer proceeded to
final judgment. No appeal was or has been taken from that judgment. While the
partition proceeding was following its course, however, Brewer pursued an appeal
of the dismissal of her counterclaim pursuant to Illinois Supreme Court Rule 304(a)
(eff. Mar. 8, 2016), arguing that Hewitt should be rejected and should not bar any of
the relief she sought.
¶5 The appellate court agreed with Brewer’s position. It rebuffed Hewitt’s holding
as outmoded and ill-considered, undertook its own public policy analysis, and held
that the public policy of prohibiting unmarried domestic partners from bringing
common-law claims against one another no longer exists in current law.
Accordingly, it vacated the circuit court’s dismissal of Brewer’s counterclaim and
remanded the matter to the circuit court to consider additional arguments raised by
the parties. 2014 IL App (1st) 132250, ¶ 40.
¶6 This court allowed Blumenthal’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. July 1, 2013). We also granted the American Civil Liberties Union of Illinois
and Lambda Legal Defense and Education Fund, Inc., leave to file a friend of the
court brief in support of Brewer. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the
reasons that follow, we now vacate in part and reverse in part the judgment of the
appellate court and affirm the judgment of the circuit court.
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¶7 BACKGROUND
¶8 This litigation began in 2010 when Blumenthal filed her verified complaint for
partition pursuant to section 17-101 of the Code of Civil Procedure (735 ILCS
5/17-101 et seq. (West 2012)) in the circuit court of Cook County. The portion of
the partition action relevant here was directed at the parties’ South Kimbark
residence (hereinafter sometimes referred to as the Chicago home), which
Blumenthal jointly owned with Brewer, who had been her domestic partner since
approximately 1981. Blumenthal’s complaint requested that “a fair division and
partition of [the] property be made between the parties *** according to their
respective rights and interests.” The complaint further requested, in the alternative,
that if the property could not be divided without manifest injustice to the parties in
interest, then it should be sold by or under direction of the court, with the proceeds
of the sale to be divided among the parties “according to their respective rights or
interests in such proceeds as ascertained and declared” by the court.
¶9 Brewer’s counterclaim, which is the focus of this appeal, was premised on the
couple’s domestic relationship, which Brewer characterized as “identical in every
essential way to that of a married couple.” As finally amended, the counterclaim
contained five counts. Counts I, II, IV, and V all pertained directly to the
disposition of the parties’ home in the underlying partition action. Specifically,
they sought to guide the court with respect to how the party’s respective rights and
interests in that property should be ascertained and valued and how the property
should be divided. Count I sought imposition of a constructive trust based on unjust
enrichment. Court II argued that the house should be divided based on principles of
equitable division. Count IV asserted that in allocating the value of the house, the
court should factor in amounts expended by Brewer to maintain it after a certain
date. Invoking principles of quantum meruit, count V claimed that apportionment
of the home’s value should take into account the value of Brewer’s time in making
sure the property was adequately secured, maintained, and repaired. Count III
sought a constructive trust over the annual net earnings or the sale of Blumenthal’s
share of her medical practice, or in the alternative, restitution of funds that
Blumenthal used from the couple’s joint account to purchase the medical practice.
¶ 10 In the circuit court, Blumenthal successfully argued that all counts of Brewer’s
counterclaim were barred as a matter of law by this court’s decision in Hewitt v.
Hewitt, 77 Ill. 2d 49 (1979). As noted earlier, Hewitt held that Illinois public policy,
as set forth in this state’s statutory prohibition against common-law marriage,
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precludes knowingly unmarried cohabitants from bringing claims against one
another to enforce mutual property rights where those rights are rooted in a
marriage-like relationship between the parties.
¶ 11 On appeal to the appellate court, Brewer contended that dramatic shifts in
public policy had rendered this court’s decision in Hewitt obsolete and that Hewitt
no longer represented an accurate view of how Illinois law should treat such a claim
today. Brewer contended that at the time Hewitt was decided, it was public policy
to treat unmarried relationships as illicit, but in the decades since Hewitt, the
Illinois legislature had repealed the criminal prohibition on nonmarital
cohabitation, prohibited differential treatment of marital and nonmarital children,
adopted no-fault divorce, established civil unions for both opposite-sex and
same-sex partners, and extended other significant protections to nonmarital
families. Thus, Brewer maintained that in light of these profound changes, Hewitt’s
restriction on common-law claims being brought by unmarried partners has been
implicitly overruled and that continued application of Hewitt would directly
contravene the current policy of this state.
¶ 12 Blumenthal responded that Hewitt was not based on a legislative policy to
stigmatize or penalize cohabitants for their relationship, but was instead based on a
statute that abolished common-law marriage in this jurisdiction and is now known
as section 214 of the Illinois Marriage and Dissolution of Marriage Act (Marriage
and Dissolution Act) (750 ILCS 5/214 (West 2010) (“Common law marriages
contracted in this State after June 30, 1905 are invalid.”)). Blumenthal contended
that Hewitt remains good law because it gives effect to Illinois’s ongoing public
policy that individuals acting privately by themselves cannot create a marriage
relationship and that the government must be involved in the creation of that bond.
In Blumenthal’s view, reversing the circuit court’s dismissal order would require
the appellate court to overrule Hewitt and its progeny, something it had no authority
to do, and, in effect, resurrect common-law marriage in Illinois.
¶ 13 In a detailed discussion, the appellate court found some merit in both parties’
arguments, but ultimately agreed with Brewer’s claims finding that the primary
basis for the result in Hewitt “ceased to exist.” 2014 IL App (1st) 132250, ¶¶ 18, 25.
To support its claim that Hewitt is now obsolete, the appellate court adopted
Brewer’s list of post-Hewitt policy changes and laws that relate to property rights of
married or unmarried couples. Id. ¶¶ 30, 33-34. In particular, the appellate court
gave considerable weight to the fact that in the decades since Hewitt was decided,
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the Illinois legislature has repealed the criminal prohibition on nonmarital
cohabitation, prohibited differential treatment of marital and nonmarital children,
adopted no-fault divorce, established civil unions for both opposite-sex and
same-sex partners, and extended other significant protections to nonmarital
families. Id. ¶¶ 23-27, 33-34.
¶ 14 The appellate court also disagreed with the policy finding in Hewitt, arguing
that Hewitt “may have the contrary effect [of discouraging cohabitation and
encouraging marriage because] refusing to hear claims between unmarried
cohabitants creates an incentive for some to not marry.” Id. ¶ 32. Thus, the
appellate court believed that “[a] cohabitant who by happenstance or design takes
possession or title to jointly acquired assets is able to retain them without
consequence when their ‘financially vulnerable’ counterpart is turned away by the
courts.” Id.
¶ 15 Finding that Hewitt’s common-law ban was misplaced, the appellate court
determined that Brewer’s counterclaim was not an attempt to retroactively redefine
the parties’ relation in order to claim the benefits of a legal marriage, but rather a
claim to have similar common-law property rights as others that were not in a
cohabiting, unmarried relationship. Id. ¶ 38. Accordingly, the appellate court
vacated the circuit court’s Hewitt-based dismissal of the counterclaim and
remanded the matter to the circuit court to consider additional arguments raised by
the parties. Id. ¶ 40.
¶ 16 We will discuss the remaining relevant facts of this case within our discussion.
¶ 17 ANALYSIS
¶ 18 Blumenthal’s central argument on this appeal is that the circuit court’s order
dismissing Brewer’s counterclaim was proper and should not have been disturbed
because it was mandated by this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49
(1979), and the prohibition against common-law marriage set forth in section 214
of the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)). Blumenthal
asserts that in reversing the circuit court and remanding for further proceedings, the
appellate court misread Hewitt, improperly reinstated common-law marriage in
contravention of Illinois law, and usurped public policy determinations that
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properly belong to the legislature. Blumenthal also criticizes the appellate court’s
decision for improperly extending principles of unjust enrichment.
¶ 19 In undertaking our review, we begin by noting that the circuit court’s rejection
of Brewer’s counterclaim was made in the context of a motion to dismiss under
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).
Such motions challenge the legal sufficiency of a pleading based on defects
apparent on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13.
In ruling on a section 2-615 motion, a court must accept as true all well-pleaded
facts and all reasonable inferences that may be drawn from those facts. Beacham v.
Walker, 231 Ill. 2d 51, 57-58 (2008). It is well understood that the critical inquiry is
whether the allegations of the complaint, when construed in the light most
favorable to the plaintiff, are sufficient to establish a cause of action upon which
relief may be granted. Such orders granting motions to dismiss under section 2-615
are reviewed de novo. Bonhomme v. St. James, 2012 IL 112393, ¶ 34.
¶ 20 Counterclaim Counts I, II, IV, and V
¶ 21 As a preliminary matter, Blumenthal contends the issue of whether counts I, II,
IV, and V of Brewer’s counterclaim are viable under Hewitt should not have been
addressed by the appellate court and is not properly before us. We agree. As to
those four counts, the appellate court’s judgment is fatally flawed for two
fundamental reasons unrelated to Hewitt.
¶ 22 First, the appellate court lacked jurisdiction to entertain the appeal from
dismissal of those counts. The Illinois Constitution confers on the appellate court
jurisdiction to hear appeals from all final judgments entered in the circuit court. See
Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a
Circuit Court are a matter of right to the Appellate Court”). The constitution also
grants this court the right to “provide by rule for appeals to the Appellate Court
from other than final judgments.” Id. Accordingly, absent a supreme court rule, the
appellate court is without jurisdiction to review judgments, orders, or decrees that
are not final. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9.
¶ 23 The ruling at issue here was brought before the appellate court based on Illinois
Supreme Court Rule 304(a) (eff. Feb. 26, 2010), which authorizes appeals from
final judgments that do not dispose of an entire proceeding “if the trial court has
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made an express written finding that there is no just reason for delaying either
enforcement or appeal or both.” An order or judgment is considered to be final and
appealable for purposes of this rule if it terminates the litigation between the parties
on the merits or disposes of the rights of the parties, either on the entire controversy
or a separate part thereof. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008).
The purpose of the rule is “ ‘to discourage piecemeal appeals in the absence of a
just reason and to remove the uncertainty which existed when a final judgment was
entered on fewer than all of the matters in controversy.’ ” Id. (quoting Marsh v.
Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990)).
¶ 24 Although the circuit court in this case made the written finding required by Rule
304(a), that finding is not dispositive. By its terms, Rule 304(a) applies only to final
judgments or orders. The special finding contemplated by the rule will make a final
order appealable, but it can have no effect on a nonfinal order. Kellerman v. Crowe,
119 Ill. 2d 111, 115 (1987). If the order is in fact not final, inclusion of the special
finding in the trial court’s order cannot confer appellate jurisdiction. EMC
Mortgage Corp., 2012 IL 113419, ¶ 14.
¶ 25 The circuit court’s action dismissing counts I, II, IV, and V of Brewer’s
counterclaim did not qualify as a final judgment or order. As mentioned above, to
be considered final and appealable for purposes of Rule 304(a), a judgment or order
must terminate the litigation between the parties on the merits of the cause, so that,
if affirmed, the trial court only has to proceed with execution of the judgment.
Kellerman, 119 Ill. 2d at 115. While the order need not dispose of all the issues
presented by the pleadings, it must be final in the sense that it disposes of the rights
of the parties, either upon the entire controversy or upon some definite and separate
part thereof. Id. The circuit court’s dismissal of counts I, II, IV, and V did not meet
that requirement.
¶ 26 Counts I, II, IV, and V arose from the same set of operative facts and sought
precisely the same thing as the underlying cause of action asserted by Blumenthal:
division of the value of the parties’ Chicago home. Rather than being distinct and
separate from Blumenthal’s action, these counts merely advanced different
analytical approaches for determining how the home or its proceeds should be
allocated between the parties. They were, in effect, different iterations of the very
same claim. When they were dismissed, the ultimate question—how the value of
the residence should be split—remained unresolved. The dismissal served only to
narrow the criteria applicable to that decision.
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¶ 27 Although we have found no cases directly on point, our appellate court has
recognized that where one claim based on the same operative facts is stated
differently in multiple counts, the dismissal of fewer than all counts is not a final
judgment as to any of the party’s claims as required by Rule 304(a). See Davis v.
Loftus, 334 Ill. App. 3d 761, 766 (2002). Similarly, we have held that where an
order disposes only of certain issues relating to the same basic claim, such a ruling
is not subject to review under Rule 304(a). To the contrary, permitting separate
appeals of such orders promotes precisely the type of piecemeal appeals Rule
304(a) was designed to discourage. See In re Marriage of Leopando, 96 Ill. 2d 114,
119-20 (1983). Based on this reasoning, the portion of the circuit court’s order
dismissing counts I, II, IV, and V of Brewer’s counterclaim was not appealable
under Rule 304(a).
¶ 28 Second, even if the appellate court had jurisdiction to review the dismissal of
counts I, II, IV, and V, its resolution of the appeal was improper and cannot stand.
As discussed, the appellate court’s conclusion that the circuit court erred in
dismissing those counts was predicated on its repudiation of this court’s decision in
Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court’s rejection of Hewitt was
tantamount to overruling that decision. However, overruling a decision by the
Illinois Supreme Court is an action the appellate court has no authority to take.
People v. Artis, 232 Ill. 2d 156, 164 (2009) (“The appellate court lacks authority to
overrule decisions of this court, which are binding on all lower courts.”). While the
appellate court was free to question Hewitt and recommend that we revisit our
holding in the case, under the judicial system created by the Illinois Constitution, it
could not, itself, declare that one of our decisions was no longer controlling
authority. As we have recently explained,
“The judicial article of the Illinois Constitution of 1970, like its predecessor in
the constitution of 1870, creates a three-tiered court system, with the appellate
court sitting in review of the circuit courts, and the supreme court sitting in
review of the appellate and circuit courts. Ill. Const. 1970, art. VI. A
fundamental principle flows from this hierarchical structure: ‘Where the
Supreme Court has declared the law on any point, it alone can overrule and
modify its previous opinion, and the lower judicial tribunals are bound by such
decision and it is the duty of such lower tribunals to follow such decision in
similar cases.’ ” (Emphasis in original.) Price v. Philip Morris, Inc., 2015 IL
117687, ¶ 38 (quoting Agricultural Transportation Ass’n v. Carpentier, 2 Ill.
2d 19, 27 (1953)).
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¶ 29 Accordingly, even if the appellate court disagreed with Hewitt, it remained
bound by that decision and should have left it to this court to reassess the decision’s
validity.
¶ 30 Because the appellate court’s reversal of the dismissal of counts I, II, IV, and V
of Brewer’s counterclaim was predicated on the exercise of jurisdiction it did not
possess and the repudiation of legal precedent it had no authority to overrule, we
would normally be inclined to simply vacate its ruling as to those counts and
remand to the circuit court for further proceedings. In this case, however, a remand
would serve no purpose. That is so because while Brewer was pursuing this appeal,
she and Blumenthal continued to litigate the underlying partition action. The matter
of how the home should be divided has now been finally determined by the circuit
court.
¶ 31 Initially, Brewer recognized that resolution of the underlying partition action
could affect her counterclaim and therefore moved for a stay of the proceedings on
the partition until appeal of the dismissal of her counterclaim was resolved.
Although the circuit court denied the stay, it indicated that the question of a stay
could be revisited if Brewer posted an appeal bond. From the record, it appears that
Brewer elected not to exercise that option. Instead, the partition action proceeded to
trial on the merits in August 2014.
¶ 32 The partition trial was conducted over a three-day period. In the course of the
trial, testimony was presented regarding when the home was purchased, who
contributed to the earnest money and down payment for the purchase, which of the
parties and their children lived in the home and when, the cost of upkeep and
repairs and who paid those costs, how and when certain other personal and real
property was divided by the parties, the disposition of inheritances Brewer received
from her parents, and how Brewer and Blumenthal handled their respective
finances, including joint investment accounts. The court heard the circumstances of
the parties’ breakup; listened to analyses of real estate values and market conditions
in the neighborhood; and received evidence regarding the parties’ income taxes and
the source and amounts of mortgage payments, insurance, utilities and taxes on the
property. The circuit court then took the matter under advisement.
¶ 33 On October 9, 2014, the circuit court reconvened to share its findings with the
parties. After dealing with some minor issues regarding various items of personal
property, including photographs and skis, the court turned to the issue of the home.
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It concluded that the parties had held the property as tenants in common; that its
current market value was $1 million; that Blumenthal had paid the earnest money
and down payment for the purchase of the home, an amount which totaled
$235,000; and that Blumenthal was entitled to return of that sum.
¶ 34 Subtracting the $235,000 from the home’s $1 million value left $765,000. The
court held that this sum should be split evenly between the parties, giving each of
them a claim to $382,500 of the home’s value. The court further held, however, that
this distribution was subject to various adjustments. Noting that this had been a
romantic domestic relationship that had gone sour, the court rejected Blumenthal’s
argument that Brewer should have to pay her rent for the time she remained in the
home after Blumenthal decided to move out. At the same time, the court thought it
inappropriate to compensate Brewer for the value of the work she did on the home
herself. On the other hand, the court opined that Brewer should receive credits for
mortgage payments, taxes, and insurance, as well as for various maintenance and
repair expenses incurred by her that were necessary for the home’s proper upkeep.
The court computed these credits to total $151,700.55, which it believed should be
deducted from Blumenthal’s $382,500 share of the home’s net value after
subtraction of the down payment and earnest money, and added to Brewer’s share.
This left Blumenthal with $230,799.45 of what the court referred to as the home’s
“equity” and Brewer with $534,200.55. Finally, the court indicated that it would
give Brewer the option of buying out Blumenthal’s share of the Chicago home. If
Brewer declined to exercise that option, the property would be put on the market
and sold. A written order to that effect was entered by the court after the hearing
concluded.
¶ 35 Neither party appealed. Instead, Brewer elected to buy out Blumenthal’s share
in accordance with the valuations made by the circuit court. According to public
records of which we can take judicial notice, Blumenthal and Blumenthal’s civil
union partner issued a quitclaim deed to Brewer in January 2015. Brewer
subsequently conveyed her interest in the home to a trust.
¶ 36 Because no appeal was taken from the court’s judgment setting the value of the
home and allocating the home’s equity between the parties and because the
property has now been conveyed in a manner chosen by the parties in accordance
with the court’s judgment, Brewer’s arguments regarding the legal sufficiency of
counts I, II, IV, and V of her counterclaims have been rendered moot. A matter
becomes moot on review when, because of events occurring after the appeal was
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filed, there is no longer an actual controversy or the reviewing court cannot grant
the complaining party effectual relief. In re Marriage of Donald B., 2014 IL
115463, ¶ 23. Such is the case here.
¶ 37 Whatever our view might be of the merits of Brewer’s legal theories on which
counts I, II, IV, and V of her counterclaim are based, the outcome of the case would
not change. As noted earlier, those theories were all directed at how the value of the
home should be divided. That division has now been made and is final. Brewer
obtained financing, the trust she established now owns the house, and Blumenthal
has been paid for her interest in it. The deal is done. The object of the controversy
has been settled.
¶ 38 Brewer has suggested that the matter is not moot because if we ruled in her
favor, the circuit court could undo its final judgment, set aside the partition, and
consider anew how the value of the home should be divided. Pressed at oral
arguments, Brewer did not explain (and we still do not see) how this could possibly
be so.
¶ 39 The finality of the judgment in the underlying partition action was not affected
by Brewer’s election to seek review of the dismissal of her counterclaim by means
of Rule 304(a). Had Brewer wanted to avoid that result and defer final resolution of
how the value of the home should be allocated until the viability of her alternate
theories was resolved, she could have immediately appealed the circuit court’s
denial of her motion to stay the underlying case. Under established Illinois law, the
denial of a stay of trial court proceedings is treated as a denial of a request for a
preliminary injunction and is appealable as a matter of right under Illinois Supreme
Court Rule 307(a)(1) (eff. Feb. 26, 2010). See, e.g., Cholipski v. Bovis Lend Lease,
Inc., 2014 IL App (1st) 132842, ¶¶ 32-33; Estate of Bass v. Katten, 375 Ill. App. 3d
62, 69-70 (2007).
¶ 40 In addition, and more importantly, if Brewer believed that the circuit court’s
subsequent ruling disposing of the home was legally deficient for failing to take
into account the theories advanced in her counterclaim, she could have appealed the
circuit court’s final judgment in the underlying case pursuant to Illinois Supreme
Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,
2015)). She did not do that either. Rather, she accepted the circuit court’s partition
ruling, bought out Blumenthal’s share of the property for the amount specified by
the court, and continued to reside there, as the court gave her the option of doing.
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¶ 41 Having pursued this strategy, Brewer would be foreclosed from pursuing
counts I, II, IV, and V of her counterclaim even if we agreed that those counts
should not have been dismissed based on Hewitt. Because the partition action
proceeded to final judgment and no appeal from that judgment was taken,
reinstatement of counts I, II, IV, and V of the counterclaim would be tantamount to
permitting Brewer to proceed with a new and separate action with respect to
division of the home’s value. That is impermissible.
¶ 42 Under the doctrine of res judicata, a final judgment on the merits rendered by a
court of competent jurisdiction acts as a bar to a subsequent suit between the parties
involving the same cause of action. River Park, Inc. v. City of Highland Park, 184
Ill. 2d 290, 302 (1998). A cause of action is defined by the facts which give rise to a
right to relief. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 10. “ ‘[S]eparate
claims will be considered the same cause of action for purposes of res judicata if
they arise from a single group of operative facts, regardless of whether they assert
different theories of relief.’ ” Hayashi v. Illinois Department of Financial &
Professional Regulation, 2014 IL 116023, ¶ 46 (quoting River Park, Inc. v. City of
Highland Park, 184 Ill. 2d at 311). These principles extend to claims arising from
the same operative facts as the plaintiff’s claim that were or could have been raised
by the defendant, and it has been held that res judicata bars a subsequent action if
successful prosecution of that action would, in effect, nullify the judgment entered
in the original action. See Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 530-31
(2005). That, of course, is precisely what would happen if the appellate court’s
reinstatement of counts I, II, IV, and V were upheld by this court and Brewer
ultimately prevailed.
¶ 43 Moreover, even if resuscitation of counts I, II, IV, and V of the counterclaim
were viewed as a mere continuation of the same proceeding rather than
commencement of a new action, revisiting the merits of those counts would still be
foreclosed. As previously indicated, Brewer could have sought an immediate
appeal of the circuit court’s denial of her request for a stay of the partition action or
filed an appeal from the circuit court’s judgment finally disposing of the partition
action on the merits. She did neither. Instead, Brewer permitted that judgment to
stand unchallenged, accepted the court’s division of the home’s value and
purchased Blumenthal’s interest in the property in accordance with the circuit
court’s ruling. Where, as here, a party fails to challenge a legal decision when it has
the opportunity to do so, that decision, as a general rule, becomes “the law of the
case for future stages of the same litigation, and [that party is] deemed to have
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waived the right to challenge that decision at a later time. [Citations.]” (Internal
quotation marks omitted.) Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540, 547
(1997). The law-of-the-case doctrine bars relitigation of issues of both law and fact.
Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.
Similarly, it is well established that if a party proceeds to trial and voluntarily
accepts the benefit of a judgment in his or her favor with respect to the disposition
of property, that party is precluded from later challenging that judgment, including
sufficiency of the property’s valuation. See County of Cook v. Malysa, 39 Ill. 2d
376, 379 (1968). Brewer, therefore, is precluded from further litigating the
disposition of the parties’ home. Accordingly, the appellate court should not have
entertained her appeal from the dismissal of counts I, II, IV, and V of her
counterclaim, and its ruling as to the viability of those counts must be vacated.
¶ 44 Counterclaim Count III
¶ 45 Unlike counts I, II, IV, and V, count III of Brewer’s counterclaim asserts a
separate and distinct claim that does not concern the partition or value of the
Chicago home. Instead, count III requests that the court impose a “Constructive
Trust on Blumenthal’s Medical Practice to Remedy Unjust Enrichment Or, in the
Alternative, for Restitution.” Therefore, the portion of the circuit court’s order
dismissing count III of Brewer’s counterclaim was final and appealable under Rule
304(a). See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987).
¶ 46 According to count III, “[t]hroughout the course of their relationship, Brewer
and Blumenthal commingled their savings and investments.” It was the funds from
this joint account that went toward the purchase of Blumenthal’s ownership interest
in her medical practice group, Gynecologic Specialists of Northwestern, S.C.
(GSN). Brewer contends that she allowed Blumenthal to use their joint account for
this investment with the reasonable understanding and expectation that she,
Brewer, would continue to benefit from the earnings derived from GSN. Once the
couple ended their relationship in 2008, these financial benefits ceased, and
Blumenthal retained the entire interest in the medical group, thereby keeping all of
the earnings from the medical practice. Based on these allegations, Brewer claims
that Blumenthal is unjustly enriched. Therefore, Brewer requests that this court
create a constructive trust from Blumenthal’s share of the annual net earnings of the
medical group or any portion of the proceeds from any sale of Blumenthal’s interest
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in the group that was attributable to Brewer’s earnings or inheritance during their
relationship and that this court award her the annual net earnings of GSN
attributable to her as well as award her this portion of the proceeds from any sale of
Blumenthal’s interest in GSN.
¶ 47 “ ‘A constructive trust is one raised by operation of law as distinguished from a
trust created by express agreement between the settlor and the trustee.’ ” Suttles v.
Vogel, 126 Ill. 2d 186, 193 (1988) (quoting Perry v. Wyeth, 25 Ill. 2d 250, 253
(1962)). A constructive trust is an equitable remedy, which may be imposed where
the person in possession of the property would be unjustly enriched if he or she
were permitted to retain that property. In re Liquidation of Security Casualty Co.,
127 Ill. 2d 434, 447 (1989). The sole duty of the constructive trustee is to transfer
title and possession of the wrongfully acquired property to the beneficiary.
Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 299 (2000).
¶ 48 Blumenthal argues that the Medical Corporation Act (805 ILCS 15/1 et seq.
(West 2010)) and the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West
2010)) prohibit Brewer, a licensed attorney, from being a beneficiary of a
constructive trust created on her ownership interest in GSN, unless Brewer is also a
licensed doctor. Under the Medical Corporation Act, anyone who is not licensed
pursuant to the Medical Practice Act is prohibited from having any part in the
“ownership, management, or control” of a medical corporation. 805 ILCS 15/13
(West 2010). In addition, fee-splitting arrangements between a licensed medical
doctor and a nonlicensed medical doctor are likewise prohibited under the Medical
Practice Act. 225 ILCS 60/22.2 (West 2010).
¶ 49 Brewer’s counterclaim explains that GSN is an Illinois corporation that
characterizes itself as an all-woman practice of experienced physicians dedicated to
providing comprehensive health care to women. Blumenthal is licensed under the
Medical Corporation Act as a medical doctor, which allowed her to be one of the
six owners of GSN. The statutory rule is clear: As an owner of the medical group,
Blumenthal is prohibited from transferring any of her ownership interest or any
proceeds from a sale of her interest in GSN to a nonlicensed medical doctor. These
prohibitions are similar to the prohibitions of a lawyer forming a partnership with a
nonlawyer if any of the activities of the partnership consist of the practice of law
(Ill. R. Prof’l Conduct (2010) R. 5.4(b) (eff. Jan. 1, 2010)) or the prohibition of
sharing legal fees with a nonlawyer (Ill. R. Prof’l Conduct (2010) R. 5.4(a) (eff.
Jan. 1, 2010)). Because Brewer is not a licensed medical doctor, transferring title
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and possession of Blumenthal’s interest in GSN through a constructive trust to
Brewer is unattainable due to the prohibitions of the Medical Corporation Act and
the Medical Practice Act.
¶ 50 In the alternative, Brewer requests the common-law remedy of restitution for an
undisclosed amount of funds she deposited into the couple’s joint account since the
year 2000, which was used to purchase Blumenthal’s ownership interest in GSN.
Brewer raises the same arguments she made before the appellate court, which ruled
in her favor, permitting her to bring common-law remedies against Blumenthal.
Therefore, Brewer requests this court uphold the appellate court’s review of the
longstanding public policy in Illinois barring unmarried, cohabiting partners from
seeking common-law property rights if the claims are not independent from the
parties’ relationship.
¶ 51 To understand Illinois’s public policy concerning the common-law rights of
unmarried, cohabiting couples, we must begin with a review of the history in
Illinois concerning the matter—a history the parties and amici have extensively
outlined in their briefs. One thing is certain as argued in the briefs: Illinois’s
statutory prohibition of common-law marriage and this court’s prior decision in
Hewitt are imperative to resolving the issue before this court. We therefore turn to
that matter.
¶ 52 Common-law marriages are invalid in Illinois and have been since the early
part of the last century. The prohibition is statutory and unequivocal. Section 214 of
the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)) expressly
provides that “[c]ommon law marriages contracted in this State after June 30, 1905
are invalid.”
¶ 53 Prior to this legislative enactment, the doctrine of common-law marriage was a
judicially sanctioned alternative to formal marriage. People v. Shaw, 259 Ill. 544,
548 (1913). In Hewitt, decided in 1979, this court undertook an extensive and
in-depth public policy analysis with respect to the statutory change by which
common-law marriages were abolished.
¶ 54 At issue in Hewitt was whether public policy barred the granting of
common-law relief to plaintiff Victoria Hewitt, who was in a cohabiting,
marriage-like relationship with the defendant, Robert Hewitt. Hewitt, 77 Ill. 2d at
52. Victoria and Robert commenced their relationship in 1960, while they were
attending college in Iowa. Id. at 53. After Victoria became pregnant, Robert
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proclaimed to Victoria “that they were husband and wife and would live as such, no
formal ceremony being necessary, and that he would ‘share his life, his future, his
earnings and his property’ with her.” Id. The parties immediately began holding
themselves out as a married couple. Id. Relying on Robert’s promises, Victoria
began to assist in paying for Robert’s education and establishing a dental practice,
helping him earn more than $80,000 annually and accumulate large amounts of
property, owned either jointly with Victoria or separately. Id. at 53-54.
¶ 55 After several years together, the relationship became sour, and Victoria filed for
divorce, which the circuit court dismissed because the parties were never married.
Id. at 52. Victoria filed an amended complaint that sought an equitable one-half
share of the parties’ assets, based upon theories of implied contract, constructive
trust, and unjust enrichment, which resulted from their “family relationship.” Id. at
53. The circuit court dismissed the amended complaint, “finding that Illinois law
and public policy require such claims to be based on a valid marriage.” Id. at 54.
¶ 56 The appellate court reversed, giving considerable weight to the fact that the
parties had held themselves out as a couple for over 15 years and lived “a most
conventional, respectable and ordinary family life.” Hewitt v. Hewitt, 62 Ill. App.
3d 861, 863 (1978). The appellate court noted that the “single flaw” of Robert’s and
Victoria’s relationship was the lack of a valid marriage. Id. The appellate court
concluded that Victoria should not be denied relief based on public policy grounds.
Id. at 867, 869. Adopting the reasoning of the “widely publicized” case of Marvin
v. Marvin, 557 P.2d 106 (Cal. 1976), the appellate court held that the amended
complaint stated a cause of action on an express oral contract. Hewitt, 62 Ill. App.
at 868. In Marvin, Michelle Marvin and actor Lee Marvin cohabited for seven years
before Michelle sought, by way of a contract action, to enforce Lee’s oral promise
that they would share earnings and property for life. Marvin, 557 P.2d at 110. In
resolving her claim for one-half the property accumulated in defendant’s name
during that period, the California court held that nonmarital cohabitants should be
treated “as any other persons” and that contracts between them are valid and
enforceable so long as they are not solely and exclusively based on sexual services,
i.e., prostitution. Id. at 116. Consequently, the appellate court reversed and
remanded the case. Hewitt, 62 Ill. App. 3d at 869.
¶ 57 On appeal to this court, we unanimously reversed the appellate court’s decision.
Hewitt, 77 Ill. 2d at 66. Addressing the issue of whether the granting of
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common-law relief to the plaintiff, an unmarried cohabitant, was barred by public
policy, we began by acknowledging that:
“The issue of unmarried cohabitants’ mutual property rights *** cannot
appropriately be characterized solely in terms of contract law, nor is it limited
to considerations of equity or fairness as between the parties to such
relationships. There are major public policy questions involved in determining
whether, under what circumstances, and to what extent it is desirable to accord
some type of legal status to claims arising from such relationships. Of
substantially greater importance than the rights of the immediate parties is the
impact of such recognition upon our society and the institution of marriage.” Id.
at 57-58.
¶ 58 In our view, the legislature intended marriage to be the only legally protected
family relationship under Illinois law, and permitting unmarried partners to enforce
mutual property rights might “encourage formation of such relationships and
weaken marriage as the foundation of our family-based society.” Id. at 58. This
court was concerned that permitting such claims might raise questions about
support, inheritance rights, and custody of nonmarital children.1 Id. We noted that
the situation between the unmarried couple was “not the kind of arm’s length
bargain envisioned by traditional contract principles, but an intimate arrangement
of a fundamentally different kind.” Id. at 61. Because the question concerned
changing the law governing the rights of parties in the delicate area of marriage-like
relationships, which involves evaluations of sociological data and alternatives, this
court decided that the underlying issue was best suited to the superior investigative
and fact-finding facilities of the legislative branch in the exercise of its traditional
authority to declare public policy in the domestic relations field. Id. Accordingly,
this court held that Victoria’s claims were “unenforceable for the reason that they
contravene the public policy, implicit in the statutory scheme of the Illinois
Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually
1
The Hewitt court also questioned and considered the history of whether granting legal
rights to cohabiting adults would encourage “what have heretofore been commonly
referred to as ‘illicit’ or ‘meretricious’ relationships” which could weaken the institution of
marriage. Hewitt, 77 Ill. 2d at 58. Today, this court does not share the same concern or
characterization of domestic partners who cohabit, nor do we condone such comparisons.
Nonetheless, as explained herein, a thorough reading of Hewitt makes clear that the core
reasoning and ultimate holding of the case did not rely nor was dependent on the morality
of cohabiting adults.
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enforceable property rights to knowingly unmarried cohabitants.” Id. at 66. We
reasoned that an opposite outcome of judicially recognizing mutual property rights
between knowingly unmarried cohabitants—where the claim is based upon or
intimately related to the cohabitation of the parties—would effectively reinstate
common-law marriage and violate the public policy of this state since 1905, when
the legislature abolished common-law marriage. Id. at 65-66.
¶ 59 Notably, based on our understanding of the public policy in Illinois and the
legislative prohibition of common-law marriage, we emphatically rejected the
holding in Marvin on which the appellate court relied. Id. In doing so, we found that
provisions of the Marriage and Dissolution Act—retaining fault as grounds for
dissolution of marriage and allowing an unmarried person to acquire the rights of a
legal spouse only if he or she goes through a marriage ceremony and cohabits with
another in the good-faith belief that he is validly married—indicated the public
policy and the judgment of the legislature disfavoring private contractual
alternatives to marriage or the grant of property rights to unmarried cohabitants. Id.
at 64. In rejecting Victoria’s public policy arguments, this court recognized that
cohabitation by the unmarried parties may not prevent them from forming valid
contracts about independent matters, for which sexual relations do not form part of
the consideration and do not closely resemble those arising from conventional
marriages. Id. at 59. However, that was not the type of claim Victoria brought; thus,
her claim failed.
¶ 60 The facts of the present case are almost indistinguishable from Hewitt, except,
in this case, the parties were in a same-sex relationship. During the course of their
long-term, domestic relationship, Brewer alleges that she and Blumenthal had a
relationship that was “identical in every essential way to that of a married couple.”
Although the parties were not legally married, they acted like a married couple and
held themselves out as such. For example, the former domestic partners exchanged
rings as a symbol of their commitment to each other, executed wills and trusts, each
naming the other as the sole beneficiary of her assets, and appointed each other as
fiduciary for financial and medical decision making. Blumenthal and Brewer also
began to commingle their personal and financial assets, which allowed them to
purchase investment property as well as the Chicago home where they raised their
three children. Much like in Hewitt, Brewer alleges that she contributed to
Blumenthal’s purchase of an ownership interest in the medical group GSN, helping
Blumenthal earn the majority of income for the parties and “thereby guaranteeing
the family’s financial security.” Because Blumenthal was able to earn a high
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income, Brewer was able to devote more time to raising the couple’s children and
to attend to other domestic duties. Once Blumenthal’s and Brewer’s relationship
ended, Brewer, like Victoria Hewitt, brought suit seeking various common-law
remedies to equalize their assets and receive an interest in Blumenthal’s business.
¶ 61 As explained supra, our decision in Hewitt did no more than follow the
statutory provision abolishing common-law marriage, which embodied the public
policy of Illinois that individuals acting privately by themselves, without the
involvement of the State, cannot create marriage-like benefits. Hewitt clearly
declared the law on the very issue in this case. Yet, the appellate court in this case
declined to follow our ruling, despite the facts being almost identical to Hewitt.
This was improper. Under the doctrine of stare decisis, when this court “has
declared the law on any point, it alone can overrule and modify its previous
opinion, and the lower judicial tribunals are bound by such decision and it is the
duty of such lower tribunals to follow such decision in similar cases.” (Emphasis in
original.) (Internal quotation marks omitted.) Price v. Philip Morris, Inc., 2015 IL
117687, ¶ 38. The appellate court had no authority to depart from our decision. It
could question Hewitt and recommend that we revisit our holding in the case, but it
could not overrule it.
¶ 62 The appellate court was also ill-advised to adopt the reasoning in Marvin (2014
IL App (1st) 132250, ¶ 31), given that in Hewitt we unquestionably rejected
Marvin. Hewitt, 77 Ill. 2d at 65-66. Determining that the legislature deliberately
declined to follow the reasoning in Marvin, this court noted that during the time
Marvin was being decided the Illinois legislature adopted the civil-law concept of
the putative spouse, which involves a situation where a person goes through a
marriage ceremony and cohabits with another in the good-faith belief that he or she
is validly married. Id. at 64. Once the putative spouse learns that the marriage is not
valid, his status as a putative spouse terminates because “common law marriages
are expressly excluded.” Id. This enactment was essential to Hewitt’s holding
because it provided specific evidence of the General Assembly’s intent to depart
from Marvin’s pure contract theory. In light of our legislative review, we felt
judicial policy making in this area to be inappropriate in light of the “recent and
unmistakeable legislative judgment disfavoring the grant of mutual property rights
to knowingly unmarried cohabitants.” Id. It was our judgment that granting relief
under the facts of the case would be contrary to the legislative intent at the time and
would have the practical effect of reinstating common-law marriage in Illinois. Id.
at 65.
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¶ 63 When considering the property rights of unmarried cohabitants, our view of
Hewitt’s holding has not changed. As in Hewitt, the issue before this court cannot
appropriately be characterized solely in terms of contract law, nor is it limited to
considerations of equity or fairness as between the parties in such marriage-like
relationships. Id. at 57-58. These questions undoubtedly involve some of the most
fundamental policy concerns in our society. Permitting such claims, as sought by
Brewer, would not only impact the institution of marriage but also raise questions
pertaining to other family-related issues. See id. at 58. Moreover, Brewer’s
argument that her relationship with Blumenthal should not be viewed differently
from others who cohabit, like roommates or siblings living together, ignores the
fact that their relationship—which lasted almost three decades and involved raising
three children—was different from other forms of cohabitation. Brewer herself
identified in her counterclaim that her relationship with Blumenthal was not that of
roommates or siblings living together but was “identical in every essential way to
that of a married couple.”
¶ 64 Because rejection of Hewitt is essential to her counterclaim, Brewer requests
that we revisit the decision and overrule it. The rationale, analysis, or distinctions
that can be drawn from the following appellate court cases are helpful in explaining
why we reject Brewer’s invitation to overrule Hewitt and hold that it remains good
law.
¶ 65 Shortly after Hewitt was decided, in Spafford v. Coats, 118 Ill. App. 3d 566
(1983), a decision not mentioned by the appellate court below, plaintiff Donna
Spafford filed a complaint against defendant Richard Coats for the creation of a
constructive trust, alleging that she purchased or paid the down payment from her
own funds for various vehicles. Id. at 568. The problem, however, was that the
vehicles purchased by Spafford were titled in Coats’s name because insurance
premiums would be less. Id. Spafford and Coats were never married, but they
cohabited for more than six years. Id. at 568-69. Using Hewitt as the basis for its
decision, the circuit court directed a verdict in favor of Coats, finding that Spafford
failed to state a cause of action. Id. at 569-70.
¶ 66 On review, the appellate court reversed, holding that in this particular situation,
the nonmarital, cohabiting relationship did not preclude equitable relief on the
vehicles purchased primarily by Spafford but titled in Coats’s name. Id. at 572-73.
The Spafford court distinguished the case from Hewitt, finding that plaintiff’s
claims were based on evidence that she furnished substantially all of the
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consideration for the purchase of several vehicles that defendant retained. Id. at
572. Instead, the appellate court found Spafford’s claims were substantially
independent of the nonmarital relationship between the parties and not based on
rights arising from their cohabitation, i.e., Spafford had actually paid for the motor
vehicles herself. Id. Because Spafford’s claims had an economic basis independent
of the nonmarital, cohabiting relationship, she was permitted to recover those
independent contributions. Id. at 572-73.
¶ 67 The appellate court in Ayala v. Fox, 206 Ill. App. 3d 538 (1990), was faced with
a similar situation as in Spafford. Anita Ayala and Lawrence Fox began their
long-term relationship in 1976. Id. at 539. At Fox’s suggestion, they obtained a
$48,000 loan to build a home. Id. Fox promised Ayala that title to the property
would be transferred to them as joint tenants and that Ayala would receive one-half
of the equity in the property if they stopped residing together. Id. For three years,
Ayala made the majority of the loan, tax, and insurance payments; for the next
seven years, Ayala and Fox jointly made the payments. Id. During the relationship,
Fox never transferred title to the couple as joint tenants, nor did he pay Ayala half
of the equity in the property. Id. Rather, he placed the property in a land trust and
kept personal property purchased with the parties’ joint funds during the
cohabitation. Id. After the parties ended their relationship, Ayala filed suit for a
one-half interest in the realty and half of the personal property. Id. Dismissing the
complaint, the circuit court found that Hewitt barred claims based on property
disputes between cohabitants. Id. at 540.
¶ 68 The appellate court affirmed, holding that Ayala was not entitled to an interest
in the property because she was seeking recovery based on rights “closely
resembling those arising from a conventional marriage,” namely an equitable
interest in the “marital” residence. Id. at 541. The appellate court distinguished the
facts of its case from Spafford, finding Ayala’s claim was intimately related to her
nonmarital cohabitation with Fox and, therefore, Hewitt barred plaintiff’s claims
for equitable relief. Id. at 541-42.
¶ 69 Hewitt’s rationale was also pivotal in Costa v. Oliven (365 Ill. App. 3d 244, 245
(2006), appeal denied, 221 Ill. 2d 633 (2006) (table)), which involved a case where
plaintiff Eugene Costa sued defendant Catherine Oliven, with whom he had lived
for 24 years in a “ ‘quasi-marital’ relationship, with ‘all the indicia of a marital type
relationship, including love, trust, mutual responsibilities and intimacy.’ ” In this
case, Costa alleged that he assumed the role of stay-at-home dad, nurturing and
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home-schooling their daughter and routinely performing all of the usual activities
associated with maintaining an efficient household in order to enable the defendant
to work full time. Id. In addition, he alleged that during their years together, Oliven
took sole title to almost every asset and possession that was acquired through the
couple’s joint efforts and labor. Id. Based on these allegations, Costa requested the
imposition of a constructive trust upon real, personal, and intellectual property
owned by Oliven as well as an accounting of all income and assets in Oliven’s
possession and an award of punitive damages in the amount of $250,000. Id. at
245-46. Oliven moved to dismiss plaintiff’s claims, arguing that his claims were
unenforceable based on section 214 of the Marriage and Dissolution Act (750 ILCS
5/214 (West 2004)), which prohibits common-law marriage, and based on this
court’s decision in Hewitt. Costa, 365 Ill. App. 3d at 246. Following the holding in
Hewitt, the appellate court affirmed the circuit court’s dismissal of Costa’s
complaint, noting that until the legislature enacted changes, this type of complaint
would continue to fail. Id.
¶ 70 We find that the facts of the case before us today are not only factually similar
to Hewitt, but also similar to Ayala and Costa. According to Brewer’s
counterclaim, one of the ways Blumenthal and Brewer’s domestic relationship was
identical to that of a married couple was, among other things, their decision to
“commingle[ ] their personal property and their finances.” Beginning around the
year 2000, Blumenthal and Brewer, like the parties in Ayala, pooled their assets and
finances, which were used to make purchases including the arrangement to
purchase an ownership interest in GSN. According to Brewer, these purchases were
made for the benefit of providing the “family’s financial security” and to allow
Brewer to devote a substantial amount of her time raising the couple’s children.
The decision between Blumenthal and Brewer to commingle their finances and use
those joint funds to make property and financial investments demonstrates that the
funds were economically dependent on the parties’ marriage-like relationship.
¶ 71 For about eight years, Brewer never objected to the arrangement, nor does the
counterclaim allege that she tried to earmark or record which funds of hers were
going specifically toward the purchase of GSN, as if she were a business partner.
This was unquestionably because Blumenthal and Brewer wanted to live like a
married couple. Both parties voluntarily contributed to the joint account because
that is typical of a married couple. The parties’ arrangement was made possible
because Brewer, like the plaintiff in Costa, agreed to forgo advancing her own legal
career in order for Blumenthal to pursue entrepreneurial endeavors including the
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purchase of an ownership interest in GSN. Indeed, Brewer is correct in labeling
Blumenthal’s and her purchase of GSN as an investment. But it was an investment
for the family, which included Blumenthal, Brewer, and their children. It was not
an investment between business partners. Nor was it the kind of arm’s-length
bargain envisioned by traditional contract principles. Rather, the arrangement to
use the parties’ commingled funds was an arrangement of a fundamentally different
kind, which, like the arrangement in Ayala and Costa, is intimately related and
dependent on Brewer’s marriage-like relationship with Blumenthal.
¶ 72 Additionally, Brewer’s claim for restitution in count III is distinguishable from
Spafford. Unlike the plaintiff in Spafford, Brewer does not allege that she
contributed substantially all of the funds for the purchase of GSN. In fact, Brewer’s
counterclaim does not provide a specific amount of funds she contributed to
Blumenthal’s ownership interest in GSN, nor does Brewer allege that she and
Blumenthal somehow attempted to keep their contributions separate. Rather, the
purchase came after many years of the former domestic partners living together,
raising a family, and depositing funds in their joint account as well as making
certain family purchases out of the joint account. It is undeniable that the purchase
of Blumenthal’s ownership interest in GSN was dependent on the parties’
relationship, because the purchase was made for the family’s financial security.
That was not the situation in Spafford.
¶ 73 While we acknowledge that restitution may be a remedy available to a party
who has cohabited with another (see Hewitt, 77 Ill. 2d at 55-56), that is not the
circumstance concerning Brewer’s restitution claim in count III of her
counterclaim. We find that Brewer failed to make a showing that count III of her
counterclaim has an independent economic basis apart from the parties’
relationship. The joint account used by Blumenthal and Brewer to purchase an
ownership interest in GSN was dependent on their desire to live in a marriage-like
relationship and make purchases out of this account to better their family situation.
Therefore, the purchase of Blumenthal’s ownership interest in GSN from the joint
account is intimately related to the parties’ relationship. Our decision in Hewitt bars
such relief if the claim is not independent from the parties’ living in a marriage-like
relationship for the reason it contravenes the public policy, implicit in the statutory
scheme of the Marriage and Dissolution Act, disfavoring the grant of mutually
enforceable property rights to knowingly unmarried cohabitants. Id. at 66.
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¶ 74 Next, Brewer respectfully asks this court to affirm the appellate court’s
decision, which held in her favor that former cohabitants who live outside the
bonds of marriage, but live in a marriage-like relationship, may bring common-law
property claims. Central to Brewer’s argument are various post-Hewitt legislative
enactments in Illinois, which she claims indicate that the state’s public policy has
shifted dramatically in regards to unmarried couples and their children. According
to Brewer, the following legislative enactments reveal that the application of Hewitt
is no longer justified and that the state’s evolving public policy now contradicts
Hewitt’s rule. We disagree.
¶ 75 Since this court’s decision in Hewitt, the General Assembly has enacted,
repealed, and amended numerous family-related statutes. In 1984, the legislature
adopted a no-fault ground of divorce based on irreconcilable differences to the
Illinois Marriage and Dissolution of Marriage Act. Pub. Act 83-954 (eff. July 1,
1984) (codified at 750 ILCS 5/401(a)(2) (West 2012)). Then in 1985, the Illinois
Parentage Act of 1984 provided that “[t]he parent and child relationship, including
support obligations, extends equally to every child and to every parent, regardless
of the marital status of the parents.” Pub. Act 83-1372 (eff. July 1, 1985) (codified
at 750 ILCS 45/3 (West 2012)). Additionally, since Hewitt, there has been an
amendment to the Probate Act of 1975 extending intestate inheritance rights to
children of unmarried parents (Pub. Act 80-1429 (eff. Sept. 12, 1978) (codified at
755 ILCS 5/2-2 (West 2012))), and a similar amendment to the Illinois Pension
Code, which indicates that children born to unmarried parents are entitled to the
same survivor’s benefits as other children (Pub. Act 84-1028 (eff. Nov. 18, 1985)
(codified at 40 ILCS 5/1-104.2 (West 2012))). Further, Illinois also recognizes the
rights of unmarried couples (and individuals) to adopt children. Pub. Act 96-328
(eff. Aug. 11, 2009) (codified at 750 ILCS 50/2 (West 2010)). In 2011, the
legislature enacted the Illinois Religious Freedom and Civil Union Act, gave legal
status to civil unions, and made such status available to both opposite-sex and
same-sex couples. Pub. Act 96-1513 (eff. June 1, 2011) (adding 750 ILCS 75/1
et seq. (West 2010)). As of 2014, under the Religious Freedom and Marriage
Fairness Act, same-sex couples are now able to marry in Illinois. Pub. Act 98-597
(eff. June 1, 2014) (adding 750 ILCS 80/1 et seq. (West 2014)). More recently, the
Parentage Act of 1984 was repealed (in its entirety) by the 2015 enactment of
Public Act 99-85, which replaced it with the Illinois Parentage Act of 2015. 750
ILCS 45/1 et seq. (West 2014) (repealed by Pub. Act 99-85 (eff. Jan. 1, 2016)
(adding 750 ILCS 46/101 et seq.)). In addition, the Marriage and Dissolution Act,
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which incorporates the statute prohibiting common-law marriages, underwent a
major overhaul this year. Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS
5/101 et seq. (West 2014)).
¶ 76 These post-Hewitt amendments demonstrate that the legislature knows how to
alter family-related statutes and does not hesitate to do so when and if it believes
public policy so requires. Nothing in these post-Hewitt changes, however, can be
interpreted as evincing an intention by the legislature to change the public policy
concerning the situation presently before this court. To the contrary, the claim that
our legislature is moving toward granting additional property rights to unmarried
cohabitants in derogation of the prohibition against common-law marriage is flatly
contradicted by the undeniable fact that for almost four decades since Hewitt, and
despite all of these numerous changes to other family-related statutes, the statutory
prohibition against common-law marriage set forth in section 214 of the Marriage
and Dissolution Act (750 ILCS 5/214 (West 2014)) has remained completely
untouched and unqualified. That is so even though this court in Hewitt explicitly
deferred any policy change to the legislature. Hewitt, 77 Ill. 2d at 66 (When
deciding complex public-policy considerations, such “ ‘questions are appropriately
within the province of the legislature, and *** if there is to be a change in the law of
this State on this matter, it is for the legislature and not the courts to bring about that
change.’ ” (quoting Mogged v. Mogged, 55 Ill. 2d 221, 225 (1973))).
¶ 77 It is well-understood that when the legislature chooses not to amend a statute to
reverse a judicial construction, it is presumed that the legislature has acquiesced in
the court’s statement of the legislative intent. Wakulich v. Mraz, 203 Ill. 2d 223,
233 (2003) (quoting Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 49-50 (1998)).
Based on this principle, we can presume that the legislature has acquiesced in
Hewitt’s judicial interpretation of the statute prohibiting marriage-like rights to
those outside of marriage. If this court were to recognize the legal status desired by
Brewer, we would infringe on the duty of the legislature to set policy in the area of
domestic relations. As mentioned in Hewitt, the legislative branch is far better
suited to declare public policy in the domestic relations field due to its superior
investigative and fact-finding facilities, as declaring public policy requires
evaluation of sociological data and alternatives. Therefore, we do not find a
compelling reason to reverse course now and depart from our earlier legislative
interpretation, especially in light of almost two score years of legislative inaction
on the matter.
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¶ 78 Brewer’s argument that we should recognize new public policy justifications to
support her counterclaim is further undermined by the fact that all of the public
policy changes to which she cites resulted not from judicial action but from the
legislature. In each example, it was the legislature, not the courts, that determined
what Illinois public policy was (or was not) to be.
¶ 79 We also reject Brewer’s argument that changes in law since Hewitt demonstrate
that the “legislature no longer considers withholding protection from nonmarital
families to be a legitimate means of advancing the state’s interest in marriage.” To
the contrary, this court finds that the current legislative and judicial trend is to
uphold the institution of marriage. Most notably, within the past year, the United
States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584,
2604-05 (2015), held that same-sex couples cannot be denied the right to marry. In
doing so, the Court found that “new insights [from the developments in the
institution of marriage over the past centuries] have strengthened, not weakened,
the institution of marriage.” Id. at ___, 135 S. Ct. at 2596. For the institution of
marriage has been a keystone of our social order and “remains a building block of
our national community.” Id. at ___, 135 S. Ct. at 2601. Accordingly, the Court
invalidated any state legislation prohibiting same-sex marriage because excluding
same-sex couples from marriage would be excluding them “from one of
civilization’s oldest institutions.” Id. at ___, 135 S. Ct. at 2608.
¶ 80 While the United States Supreme Court has made clear that “[t]he Constitution
*** does not permit the State to bar same-sex couples from marriage on the same
terms as accorded to couples of the opposite sex” (id. at ___, 135 S. Ct. at 2607),
nothing in that holding can fairly be construed as requiring states to confer on
non-married, same-sex couples common-law rights or remedies not shared by
similarly situated non-married couples of the opposite sex. Legislatures may, of
course, decide that matters of public policy do warrant special consideration for
non-married, same-sex couples under certain circumstances, notwithstanding the
fact that the institution of marriage is available to all couples equally. What is
important for the purposes of this discussion is that the balancing of the relevant
public policy considerations is for the legislature, not the courts. Indeed, now that
the centrality of the marriage has been recognized as a fundamental right for all, it
is perhaps more imperative than before that we leave it to the legislative branch to
determine whether and under what circumstances a change in the public policy
governing the rights of parties in nonmarital relationships is necessary.
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¶ 81 It is well settled that the policy of the Marriage and Dissolution Act gives the
state a strong continuing interest in the institution of marriage and the ability to
prevent marriage from becoming in effect a private contract terminable at will, by
disfavoring the grant of mutually enforceable property rights to knowingly
unmarried cohabitants. See Hewitt, 77 Ill. 2d at 65-66. As explained in Hewitt, such
policy was set forth by the enactment of section 214 of the Marriage and
Dissolution Act. Ill. Rev. Stat. 1979, ch. 40, ¶ 214 (codified at 750 ILCS 5/214
(West 2010)). Until the legislature sees fit to change our interpretation of the public
policy in Illinois, under the circumstances of this case, Brewer’s claim for
restitution is prohibited, as it contravenes the public policy implicit in the Marriage
and Dissolution Act.
¶ 82 Lastly, we note that Brewer, the supporting amici, and the partial dissent cite to
numerous cases from our sister state courts and other secondary sources that
support Brewer’s public policy arguments. However, decisions from other state
courts and secondary sources are not binding on this court and, in this particular
situation, are unpersuasive for the reason they do not adequately consider the
deeply rooted public policy in Illinois. In re Parentage of Scarlett Z.-D., 2015 IL
117904, ¶ 55 (citing Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d
478, 489 (1989)). Additionally, it should be noted that these cases and secondary
sources were written prior to, and therefore did not consider, the fundamental
change the United States Supreme Court decision in Obergefell had on legal rights
of same-sex partners.
¶ 83 Due Process and Equal Protection Claims
¶ 84 The determination that the trial court did not err in dismissing Brewer’s
counterclaim does not end this appeal, for Brewer argues that the continued
application of Hewitt’s rule would violate the Illinois and federal constitutional
guarantees of due process and equal protection. See U.S. Const., amend. XIV, § 1;
Ill. Const. 1970, art. I, §§ 2, 12. Brewer claims that Hewitt’s rule preventing
unmarried domestic partners the ability to bring common-law claims available to
all other persons, solely because they are in a marriage-like relationship, does not
rationally advance a legitimate governmental purpose and that it deliberately seeks
to penalize unmarried partners for exercising their constitutionally protected right
to enter into an intimate relationship. Although the appellate court did not address
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this issue, the issue has been raised and fully briefed by both parties. Therefore, we
will address this issue on appeal. Chavda v. Wolak, 188 Ill. 2d 394, 400 (1999).
¶ 85 We disagree with Brewer’s claim that Hewitt’s holding denies unmarried
domestic partners the ability to bring common-law claims solely because they are
in an intimate relationship with another. See supra ¶¶ 65-73. This court’s decision
in Hewitt only disallows unmarried cohabitants who live in a marriage-like
relationship from accessing, under the guise of an implied contract, the rights and
protections specified in the Marriage and Dissolution Act. In other words,
individuals can enter into an intimate relationship, but the relationship itself cannot
form the basis to bring common-law claims. Thus, Hewitt’s holding does not
prevent or penalize unmarried partners from entering into intimate relationships.
Rather, it acknowledges the legislative intent to provide certain rights and benefits
to those who participate in the institution of marriage.
¶ 86 The State’s interest in the creation, regulation, and dissolution of the marriage
relationship is beyond question. Over one hundred years ago, the United States
Supreme Court in Maynard v. Hill, 125 U.S. 190, 211 (1888), recognized that
marriage “is the foundation of the family and of society, without which there would
be neither civilization nor progress.” Throughout history, states have contributed to
the fundamental character of the marriage right by placing that institution at the
center of so many facets of the legal and social order. See Obergefell, 576 U.S. at
___, 135 S. Ct. at 2601. In Williams v. North Carolina, 317 U.S. 287, 298 (1942),
the Court noted that “[e]ach state as a sovereign has a rightful and legitimate
concern in the marital status of persons domiciled within its borders.” This is so
because “[t]he definition of marriage is the foundation of the State’s broader
authority to regulate the subject of domestic relations with respect to the
‘[p]rotection of offspring, property interests, and the enforcement of marital
responsibilities.’ ” United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675,
2691 (2013) (quoting Williams, 317 U.S. at 298). In enacting the Marriage and
Dissolution Act (Pub. Act 80-923 (eff. Oct. 1, 1977) (codified at 750 ILCS 5/101
et seq. (West 2014))), the Illinois legislature has shown its rightful interest in
defining and regulating domestic relationships.
¶ 87 Since marriage is a legal relationship that all individuals may or may not enter
into, Illinois does not act irrationally or discriminatorily in refusing to grant
benefits and protections under the Marriage and Dissolution Act to those who do
not participate in the institution of marriage. As noted in Hewitt and the line of
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cases that follow its holding, unmarried individuals may make express or implied
contracts with one another, and such contracts will be enforceable if they are not
based on a relationship indistinguishable from marriage. Indeed, Hewitt did nothing
more than effectuate the policy established by the legislature to prevent knowingly
unmarried cohabitants from evading the statutory abolition of common-law
marriage under section 214 of the Marriage and Dissolution Act (750 ILCS 5/214
(West 2010)) by employing theories of implied contract to achieve the same result
that would occur if common-law marriage were recognized. We, therefore, reject
Brewer’s claims.
¶ 88 CONCLUSION
¶ 89 For the foregoing reasons, the appellate court should not have considered
Brewer’s appeal with respect to that portion of the circuit court’s order disposing of
counts I, II, IV, and V of Brewer’s counterclaim, and it erred when it reversed and
remanded the cause with respect to count III of Brewer’s counterclaim. The
judgment of the appellate court is therefore vacated in part and reversed in part. The
judgment of the circuit court dismissing Brewer’s counterclaim in full is affirmed.
¶ 90 Appellate court judgment vacated in part and reversed in part.
¶ 91 Circuit court judgment affirmed.
¶ 92 JUSTICE THEIS, concurring in part and dissenting in part:
¶ 93 I agree with the majority’s disposition of counts I, II, IV, and V of Judge
Brewer’s counterclaim against Dr. Blumenthal. I further agree with the majority’s
holding that count III of the counterclaim cannot proceed on a constructive trust
theory. I disagree with the majority’s holding that count III cannot proceed on a
restitution theory.
¶ 94 The trial court dismissed Brewer’s amended complaint in its entirety because it
felt bound to Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court did not feel
similarly bound, but, as the majority notes, that court should have followed that
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case. Supra ¶ 61 (quoting Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38). The
central question for us to decide here is whether we should do so.
¶ 95 The doctrine of stare decisis is not an inexorable command (Chicago Bar Ass’n
v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994)), and this court will
depart from it and discard a prior case when there is good cause to do so (Moehle v.
Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982)). Good cause exists when an
earlier ruling has proven to be unworkable or poorly reasoned. People v. Sharpe,
216 Ill. 2d 481, 520 (2005) (citing People v. Jones, 207 Ill. 2d 122, 134 (2003)); see
Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) (stating that “any detours from the
straight path of stare decisis in our past have occurred for articulable reasons, and
only when the Court has felt obliged to bring its opinions into agreement with
experience and with facts newly ascertained” (internal quotation marks omitted)).
In my view, there is good cause to overrule Hewitt. The court’s decision in that case
was clouded by an inappropriate and moralistic view of domestic partners who
cohabit and founded upon legal principles that have changed significantly.
¶ 96 According to the majority, Hewitt “did no more than follow the statutory
provision abolishing common-law marriage, which embodied the public policy of
Illinois that individuals acting privately by themselves, without the involvement of
the State, cannot create marriage-like benefits.” Supra ¶ 61. In fact, Hewitt did
much more. It etched into the Illinois Reports the arcane view that domestic
partners who choose to cohabit, but not marry, are engaged in “illicit” or
“meretricious” behavior at odds with foundational values of “our family-based
society.” Hewitt, 77 Ill. 2d at 58. “Meretricious” means “of or relating to a
prostitute” (Webster’s Third New International Dictionary 1413 (1986)), so this
court labeled such people as prostitutes.
¶ 97 The majority’s attempt to distance itself from Hewitt’s sweeping and
near-defamatory statement is unconvincing. Though the majority assures that “this
court does not share the same concern or characterization of domestic partners who
cohabit, nor do we condone such comparisons” (supra ¶ 58 n.1), its disavowal of
Hewitt is literally subtextual, occurring only in a footnote. Elsewhere, the majority
borrows troubling language from that case. In Hewitt, the court stated that “the
situation” between the parties was “not the kind of arm’s length bargain envisioned
by traditional contract principles, but an intimate arrangement of a fundamentally
different kind.” Hewitt, 77 Ill. 2d at 61. Here, the majority states that the parties’
investment into Blumenthal’s medical practice was not “the kind of arm’s-length
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bargain envisioned by traditional contract principles,” but rather “an arrangement
of a fundamentally different kind, which *** is intimately related and dependent on
Brewer’s marriage-like relationship with Blumenthal.” Supra ¶ 71. The majority
cleverly tries to cloak the real meaning of Hewitt, but what makes these
“arrangements” fundamentally different is the same for the Hewitt court and the
majority.
¶ 98 To state uncategorically that “our view of Hewitt’s holding has not changed”
(supra ¶ 63) and insist that “it remains good law” (supra ¶ 64) is to reaffirm an
oddly myopic and moralistic view of cohabitation. The majority assertion that
Hewitt’s “core reasoning and ultimate holding *** did not rely nor was dependent
on the morality of cohabiting adults” (supra ¶ 58 n.1) is plainly incorrect because
the court’s discussion of the role of the legislature in setting public policy on
domestic relations and the prohibition of common-law marriage comes as an
even-if afterthought. See Hewitt, 77 Ill. 2d at 60. Insulating the institution of
marriage from the “changing mores of our society” was the clear impetus for our
holding in that case. Id. at 58.
¶ 99 To begin its analysis, the Hewitt court discussed at length the so-called rule of
illegality. The court quoted the first Restatement of Contracts, which stated, “ ‘A
bargain in whole or in part for or in consideration of illicit sexual intercourse or of a
promise thereof is illegal.’ ” Hewitt, 77 Ill. 2d at 59 (quoting Restatement of
Contracts § 589 (1932)). And the court cited the well-known contract law treatise
by Arthur Corbin, the reporter of the First Restatement, as further support for the
traditional rule. Id. (citing 6A Arthur Linton Corbin, Corbin on Contracts § 1476
(1962)). The Hewitt court acknowledged that “cohabitation by the parties may not
prevent them from forming valid contracts about independent matters, for which it
is said the sexual relations do not form part of the consideration” (id.), but rejected
the “real thrust” of the argument that the rule of illegality should be abandoned (id.
at 60). The court decried “the naivete *** involved in the assertion that there are
involved in these relationships contracts separate and independent from the sexual
activity, and the assumption that those contracts would have been entered into or
would continue without that activity.” Id.
¶ 100 Hewitt’s support for the rule of illegality has disappeared. In 1979, Illinois still
criminalized cohabitation. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a “person who
cohabits *** commits fornication if the behavior is open and notorious”). The
Hewitt court did not cite that statute, but quoted Wallace v. Rappleye, 103 Ill. 229,
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249 (1882), which held, “ ‘An agreement in consideration of future illicit
cohabitation between the [parties] is void.’ ” Hewitt, 77 Ill. 2d at 58-59. When the
prohibition against cohabitation was repealed in 1990 (see Pub. Act 86-490 (eff.
Jan. 1, 1990) (codified at 720 ILCS 5/11-40 (West 2010))), Wallace was, in effect,
superseded.
¶ 101 The Second Restatement of Contracts, which was completed in 1979 and
published in 1981, deleted the section of the First Restatement quoted in Hewitt and
ceased to define all bargains between people in intimate relationships as illegal.
The section of the Corbin treatise cited in Hewitt has been dropped in the current
version. Today, the treatise recognizes that cohabiting adults are a family and notes,
“The courts' treatment of contracts entered into by cohabiting parties evolved in the
last part of the twentieth century and is clear evidence of how the courts’ view of
what might be against public policy varies with changes in society’s views.” 15
Grace McLane Giesel, Corbin on Contracts § 81.4, at 205 (Joseph M. Perillo ed.,
rev. ed. 2003) (hereinafter Corbin). According to the treatise, courts across the
country no longer perceive a conflict between the public policies of protecting and
encouraging marriage and discouraging any exchange of sexual activity for value
and enforcing agreements between former cohabitants. Corbin, supra, § 81.4, at
207-08.
¶ 102 The treatise also refers to the landmark “palimony” case of Marvin v. Marvin,
557 P.2d 106 (Cal. 1976) (en banc), remarking:
“Whereas cases decided [prior to] Marvin may have presumed that the
sexual relationship was the substance of the agreement, cases after Marvin
seem to presume that the relationship is not the substance of the agreement.
These cases are not concerned that the agreement exists in the context of a
sexual relationship, but rather are concerned only if the contract’s ‘primary’
reason is sexual relations for value.” Corbin, supra, § 81.4, at 219.
Brewer and the amici supporting her cite many of those cases, but the majority
declines to follow them because they are not binding authority and “do not
adequately consider the deeply rooted public policy in Illinois.” Supra ¶ 82. That
policy, presumably, is the one mentioned earlier by the majority that individuals
acting privately cannot create marriage-like benefits without the involvement of the
State. Supra ¶ 61. According to the majority, that policy is embodied in prohibition
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of common-law marriage that “has remained completely untouched and
unqualified” in the nearly four decades since Hewitt. Supra ¶ 76.
¶ 103 Obviously, Illinois’s common-law marriage ban is still in effect. See 750 ILCS
5/214 (West 2010). Parallel statutes are in effect across the country, 2 but only
Georgia and Louisiana have rulings similar to Hewitt. See Long v. Marino, 441
S.E.2d 475 (Ga. Ct. App. 1994); Schwegmann v. Schwegmann, 441 So. 2d 316 (La.
Ct. App. 1983). Courts in a vast majority of the remaining states, as well as the
District of Columbia, that have chosen not to recognize common-law marriages
also have chosen to recognize claims between former domestic partners like
Blumenthal and Brewer. See, e.g., Bishop v. Clark, 54 P.3d 804 (Alaska 2002);
Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark.
1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d
142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of
Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d
648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App.
1980); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982); Wilcox v.
Trautz, 693 N.E.2d 141 (Mass. 1998); Featherston v. Steinhoff, 575 N.W.2d 6
(Mich. Ct. App. 1997); In re Estate of Eriksen, 337 N.W.2d 671 (Minn. 1983);
Cates v. Swain, No. 2010-CT-01939-SCT, 2013 WL 1831783 (Miss. May 2, 2013);
Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987); Kinkenon v. Hue, 301
N.W.2d 77 (Neb. 1981); Hay v. Hay, 678 P.2d 672 (Nev. 1984); Dominguez v.
Cruz, 617 P.2d 1322 (N.M. Ct. App. 1980); Morone v. Morone, 413 N.E.2d 1154
(N.Y. 1980); Collins v. Davis, 315 S.E.2d 759 (N.C. Ct. App. 1984), aff’d per
curiam, 321 S.E.2d 892 (N.C. 1984); McKechnie v. Berg, 667 N.W.2d 628 (N.D.
2003); Beal v. Beal, 577 P.2d 507 (Or. 1978) (en banc); Knauer v. Knauer, 470
A.2d 553 (Pa. Super. Ct. 1983); Bracken v. Bracken, 217 N.W. 192 (S.D. 1927);
Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Belcher v. Kirkwood, 383
S.E.2d 729 (Va. 1989); In re Marriage of Lindsey, 678 P.2d 328 (Wash. 1984)
(en banc); Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990); Watts v. Watts, 405
N.W.2d 303 (Wis. 1987); Kinnison v. Kinnison, 627 P.2d 594 (Wy. 1981).
2
According to the National Conference of State Legislatures, only Alabama, Colorado,
Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, and
Texas still recognize common-law marriage. Http://www.ncsl.org/research/
human-services/common-law-marriage.aspx (updated August 4, 2014).
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¶ 104 The recognition of claims between domestic partners has not revived the
doctrine of common-law marriage in jurisdictions that have abolished it. See
Principles of the Law of Family Dissolution § 6.01 cmt. a (2002) (hereinafter
Principles). That is, “the history of common law marriage in this country” (Hewitt,
77 Ill. 2d at 64)—or, more precisely, its widespread prohibition—has not prevented
courts across the country from allowing such claims to proceed. See Glasgo, 410
N.E.2d at 1330 (“We do not find that recognition of a claim for a declaration of
property rights in specific property to be a claim which reinstates common law
marriages.”); Hay, 678 P.2d at 674 (“We hasten to point out that Nevada does not
recognize common law marriage. [Citation.] We recognize that the state has a
strong public policy interest in encouraging legal marriage. We do not, however,
believe that policy is well served by allowing one participant in a meretricious
relationship to abscond with the bulk of the couple’s acquisitions.”); Goode, 396
S.E.2d at 438 (“This Court *** recognizes that the state has a strong policy interest
in encouraging legally valid marriages. [Citation.] However, we *** also recognize
that this policy must not defeat a person’s equitable interests, nor a person’s rights
based upon a valid agreement, expressed or implied.”); Kinnison, 627 P.2d at 595
(“While repeatedly rejecting the doctrine of common-law marriage, this court has
never held, however, that the fact that a man and a woman live together out of
wedlock and engage in a sexual relationship in any way invalidates agreements
between them or, because of the relationship, renders them incapable of contracting
with one another.”); see also Boland, 521 A.2d at 145; Wilcox, 693 N.E.2d at 146;
Hudson, 732 S.W.2d at 926; Dominguez, 617 P.2d at 1322-23; Knauer, 470 A.2d at
564.
¶ 105 In light of this wave of authority, the Restatement (Third) of Restitution and
Unjust Enrichment now contains a new section that provides former domestic
partners with an avenue “to prevent unjust enrichment upon the dissolution of the
relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28(1)
(2011).
¶ 106 Illinois is a clear outlier on this issue. See Principles, supra, § 6.03, Reporter’s
Notes, cmt. b (“Although Hewitt is not entirely isolated [citation] its approach is
distinctly a minority view, and has been explicitly rejected by many courts ***.”).
Hewitt must be overruled because it is outmoded and out of touch with
contemporary experience and opinions on cohabitation.
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¶ 107 Additionally, Hewitt must be overruled because the legal landscape that formed
the background for our decision has changed significantly. The Hewitt court was
puzzled by the impact that recognizing claims arising from the relationships of
unmarried cohabitants would have on society. Hewitt, 77 Ill. 2d at 58. Specifically,
the court queried, “[W]hat of the children born of such relationships? What are
their support and inheritance rights and by what standards are custody questions
resolved? What of the sociological and psychological effects upon them of that
type of environment?” Id. That court was the same one that decided Jarrett v.
Jarrett, 78 Ill. 2d 337, 345 (1979), which affirmed a trial court ruling transferring
custody of three children to their father because their mother was cohabiting with
another man. Four years later in In re Marriage of Thompson, 96 Ill. 2d 67, 78
(1983), the court changed course and held that, in Illinois, there is no “conclusive
presumption that, because a custodial parent cohabits with a member of the
opposite sex, the child is harmed.” See also In re Marriage of R.S., 286 Ill. App. 3d
1046, 1055 (1996) (“the clear import of the Thompson opinion is that Illinois courts
should not adopt absolute rules that require a change in custody based on conduct
of the custodial parent that does not impact the children”). Unmarried couples may
now adopt children. See 750 ILCS 50/2 (West 2010).
¶ 108 As for support and inheritance, the Probate Act of 1975 was amended in 1978 to
extend intestate inheritance rights to children of unmarried parents. See Pub. Act
80-1429 (eff. Sept. 12, 1978) (codified at 755 ILCS 5/2-2 (West 2010)). Similarly,
the Illinois Pension Code was amended in 1985 to extend survivor benefits to such
children. See Pub. Act 84-1028 (eff. Nov. 18, 1995) (codified at 40 ILCS 5/1-104.2
(West 2010)). And the Illinois Parentage Act of 1984, which also went into effect in
1985, specifically provided that “[t]he parent and child relationship, including
support obligations, extends equally to every child and to every parent, regardless
of the marital status of the parents.” Pub. Act 83-1372 (eff. July 1, 1985) (codified
at 750 ILCS 45/3 (West 2010)). That statute has since been repealed and replaced
by the Illinois Parentage Act of 2015. 750 ILCS 46 et seq. (West Supp. 2015).
¶ 109 To bolster its holding, Hewitt relied upon Illinois’s rejection of so-called
no-fault divorce. See Hewitt, 77 Ill. 2d at 63 (citing Ill. Rev. Stat. 1977, ch. 40,
¶ 401). The court took the legislature’s decision to retain fault grounds for divorce
as a “significantly stronger promarriage policy” that reaffirmed “the traditional
doctrine that marriage is a civil contract between three parties[: ]the husband, the
wife[,] and the State” and prevented “the marriage relation from becoming in effect
a private contract terminable at will.” Hewitt, 77 Ill. 2d at 63-64.
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¶ 110 The Marriage and Dissolution of Marriage Act was amended in 1984, and since
then Illinois has had no-fault divorce. See 750 ILCS 5/401(a)(2) (West 2010); see
also Karbin v. Karbin, 2012 IL 112815, ¶ 39 (stating that the no-fault divorce
provisions of the Act signaled a shift in policy that “reflected a dissatisfaction with
the traditional requirements of proving fault to obtain a divorce” and “allowed
people to part with dignity” (internal quotation marks omitted)). And the Illinois
Uniform Premarital Agreement Act was enacted in 1990. See 750 ILCS 10/1 et seq.
(West 2010); see also In re Marriage of Barnes, 324 Ill. App. 3d 514, 517 (2001)
(indicating that, historically, premarital agreements that limited spousal
maintenance or distributed property upon divorce were invalidated on public policy
grounds because they were said to be conducive to divorce, but it is now “clear that
there is no longer any general public policy opposed to agreements contemplating
divorce”). Those statutes answer the Hewitt court’s concern about “the marriage
relation *** becoming in effect a private contract terminable at will.” Hewitt, 77 Ill.
2d at 64.
¶ 111 Notably, Hewitt’s paternalistic reference to only opposite-gender marriages has
been superseded by the Religious Freedom and Marriage Fairness Act (Pub. Act
98-597 (eff. June 1, 2014) (adding, inter alia, 750 ILCS 80/5 (West Supp. 2013))),
which provides “same-sex and different-sex couples and their children equal access
to the status, benefits, protections, rights, and responsibilities of civil marriage.”
The legislature, in an earlier statute, extended the rights and burdens of marriage to
domestic partners who enter civil unions (see 750 ILCS 75/1 et seq. (West 2010)),
and many public and private employers provide benefits to domestic partners who
cohabit.
¶ 112 The majority, however, refuses to give these statutory amendments much
weight. According to the majority, “[t]hese post-Hewitt amendments demonstrate
that the legislature knows how to alter family-related statutes and does not hesitate
to do so when and if it believes public policy so requires.” Supra ¶ 76. The
implication is that, in light of the many statutory changes since Hewitt, the
legislature’s silence on the rights of cohabitants somehow indicates its rejection of
claims like those brought by Brewer. I interpret that silence differently. Simply
because the legislature has taken some action in the domestic relations arena does
not mean that this court cannot act as well. See In re Parentage of M.J., 203 Ill. 2d
526, 540 (2003). The legislature is undoubtedly well equipped to declare public
policy on domestic relations. Hewitt, 77 Ill. 2d at 61, 66; supra ¶ 77. Courts,
however, are better equipped than the legislature to help parties divide joint assets
- 36 -
using familiar legal and equitable rules. See Watts, 405 N.W.2d at 311 (“Courts
have traditionally developed principles of contract and property law through the
case-by-case method of the common law. While ultimately the legislature may
resolve the problems raised by unmarried cohabiting parties, we are not persuaded
that the court should refrain from resolving such disputes until the legislature gives
us direction.”).
¶ 113 For more than a century and a half, Illinois courts have adjudicated property
disputes between family members. See, e.g., Miller v. Miller, 16 Ill. 296, 298-99
(1855); Collar v. Patterson, 137 Ill. 403, 407 (1891); Heffron v. Brown, 155 Ill.
322, 326 (1895); Finch v. Green, 225 Ill. 304, 312 (1907); Legate v. Legate, 249 Ill.
359, 364 (1911). Generally, courts have held that, when people live together in a
family setting, contributions between them are presumed gratuitous and not
compensable absent an express or implied contract. See In re Estate of Milborn,
122 Ill. App. 3d 688, 692 (1984) (“The rule rests on the idea of mutual dependence
between those who are members of one immediate family ***.” (Emphasis
omitted.)). Thus, seen in the light of established Illinois law, claims like Brewer’s
claim are nothing new.
¶ 114 More importantly, claims like Brewer’s claim do not implicate the Marriage
and Dissolution of Marriage Act and, thus, do not undermine the public policy of
Illinois, as expressed in the prohibition of common-law marriage, that individuals
themselves cannot create marriage-like benefits. See supra ¶ 61. Although the
parties had what the majority terms a “marriage-like relationship” (supra ¶ 1),
Brewer does not seek “marriage-like benefits” (supra ¶ 61) or “marriage-like
rights” (supra ¶ 77) in count III. She simply asks to bring the same common-law
claims available to other people. She should be allowed to do so. The fact that
Brewer and Blumenthal were once domestic partners should be no impediment.
See Mason, 476 A.2d at 666 (“the position that the courts will not participate in
resolving the disputes in accordance with general principles of law and, thus, will
leave the parties to their own devices, to be unrealistic and unresponsive to social
need”); Salzman v. Bachrach, 996 P.2d 1263, 1268-69 (Colo. 2000) (en banc)
(“cohabitation and sexual relations alone do not suspend contract and equity
principles”). Admittedly, such claims may be difficult to plead and prove (see
Marsha Garrison, Nonmarital Cohabitation: Social Revolution and Legal
Regulation, 42 Fam. L.Q. 309, 321 (2008)), but that is a matter for the trial court.
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¶ 115 Hewitt’s flaws, both linguistic and legal, have become more apparent with time.
Our holding there is a court-made rule that this court should overrule. I believe that
count III of Brewer’s amended complaint should be remanded for the trial court to
determine whether she has pleaded a cognizable cause of action. For these reasons,
I dissent.
¶ 116 JUSTICE BURKE joins in this partial concurrence, partial dissent.
DISSENT UPON DENIAL OF REHEARING
¶ 117 JUSTICE THEIS, dissenting upon denial of rehearing:
¶ 118 I continue to believe that the majority was wrong to reaffirm Hewitt v. Hewitt,
77 Ill. 2d 49 (1979). That case should be overruled, and Brewer should be allowed
to pursue her restitution claim for the reasons that I stated in my dissent. Supra ¶ 96
(Theis, J., concurring in part and dissenting in part, joined by Burke, J.). Further,
this court should grant rehearing because the majority mischaracterized Brewer’s
restitution claim and ignored a key aspect of her constitutional challenge.
¶ 119 The majority opinion rejected that challenge, explaining that Hewitt
“disallows unmarried cohabitants who live in a marriage-like relationship from
accessing, under the guise of an implied contract, the rights and protections
specified in the Marriage and Dissolution Act. In other words, individuals can
enter into an intimate relationship, but the relationship itself cannot form the
basis to bring common-law claims.” Supra ¶ 85.
According to the majority, “Hewitt did nothing more than effectuate the policy
established by the legislature to prevent knowingly unmarried cohabitants from
evading the statutory abolition of common-law marriage *** by employing
theories of implied contract to achieve the same result that would occur if
common-law marriage were recognized.” Supra ¶ 87. The majority then concluded
that because “marriage is a legal relationship that all individuals may or may not
enter into, Illinois does not act irrationally or discriminatorily in refusing to grant
benefits and protections under the Marriage and Dissolution Act to those who do
not participate in the institution of marriage.” Supra ¶ 87.
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¶ 120 That conclusion is suspect for two reasons. First, the majority mischaracterized
Brewer’s restitution claim. The majority intimated that Brewer makes a claim
under the Illinois Marriage and Dissolution of Marriage Act. She does not. As I
stated in my dissent,
“[C]laims like Brewer’s claim do not implicate the Marriage and Dissolution of
Marriage Act and, thus, do not undermine the public policy of Illinois, as
expressed in the prohibition of common-law marriage, that individuals
themselves cannot create marriage-like benefits. See supra ¶ 61. Although the
parties had what the majority terms a ‘marriage-like relationship’ (supra ¶ 1),
Brewer does not seek ‘marriage-like benefits’ (supra ¶ 61) or ‘marriage-like
rights’ (supra ¶ 77) in count III. She simply asks to bring the same common-law
claims available to other people.” Supra ¶ 114.
Brewer has not employed an implied contract theory to achieve the same result that
she would obtain under section 503 of the Marriage and Dissolution of Marriage
Act (750 ILCS 5/503 (West 2014)). She has employed an equitable theory to
achieve a just result. Claims like Brewer’s claim have long been recognized in
Illinois. Supra ¶ 113 (Theis, J., concurring in part and dissenting in part, joined by
Burke, J.).
¶ 121 Second, the majority ignored the key aspect of Brewer’s constitutional
challenge. In her response brief, Brewer asserted that applying Hewitt to bar her
restitution claim would violate due process and equal protection because our
holding in that case effectively penalizes unmarried domestic partners who
cohabitate for exercising their right to an intimate relationship, as recognized by the
United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Consequently, Hewitt’s holding is not rationally related to a legitimate
governmental interest. Brewer added that it would be “particularly irrational” to
expand Hewitt from its fact context of opposite-sex domestic partners who could
have married, but chose not to do so, to the fact context here of same-sex domestic
partners who could not have married. According to Brewer, she and Blumenthal
“did not choose not to marry; they were barred from it” by a law, like those
declared unconstitutional in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584
(2015), that has since been repealed and replaced.
¶ 122 The majority overlooked that point, relying on a false version of history in
which all Illinoisans could marry as the justification for its application of Hewitt.
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Of course, it is not irrational or discriminatory to deny the protections of the Act’s
dissolution provisions to persons who never used its marriage provisions. A
question remains whether it is irrational and discriminatory to deny the protections
of the common law to persons who never could have used the marriage provisions
because of their sexual orientation.
¶ 123 The majority assumed that all domestic partners who cohabitate are the same.
They are not. Some domestic partners have always enjoyed the right to marry, and
consequently have always had the option of exercising that right and resorting to
the Marriage and Dissolution of Marriage Act in the event of divorce. Others have
not always enjoyed that right and have not always been able to resort to the Act.
Until Illinois extended the Act to domestic partners who enter civil unions in 2010,
all domestic partners who cohabitated without marrying did so knowingly, but not
all of them did so willingly. During the entire 26 years that Brewer and Blumenthal
were together, marriage was not a legal relationship for them.
¶ 124 In her rehearing petition, Brewer contends that the majority’s adherence to
Hewitt repeated and compounded unconstitutional discrimination against same-sex
domestic partners by barring Brewer’s restitution claim simply because she did not
do what the law prevented her from doing. According to Brewer, “it is irrational to
prevent same-sex couples from marrying and, at the same time, exclude them from
common law property protections on the ground that, if they wished to have any
property protections, they should have married.” Brewer asserts that application of
Hewitt to same-sex domestic partners who separated before they could legally
marry creates “an untenable double bind” because it “conditions an important
right—the ability to seek an equitable division of property when a relationship
ends—on marriage, and then applies that restriction even to couples [who] were
legally barred from marriage during the entire duration of their relationship, and
even though that legal prohibition has now been ruled unconstitutional by the U.S.
Supreme Court.”
¶ 125 That double bind and its accompanying constitutional issues are a result of the
majority’s flawed reasoning. The majority stated that Hewitt “did no more than
follow the statutory provision abolishing common-law marriage, which embodied
the public policy of Illinois that individuals acting privately by themselves, without
the involvement of the State, cannot create marriage-like benefits.” Supra ¶ 61.
Again, Brewer does not seek marriage-like benefits. It defies logic, however, to
insist that Brewer could not create marriage-like benefits without state involvement
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when she could not have created a marriage with state involvement. Indeed, the
state refused to be involved because Illinois did not allow same-sex marriage while
she and Blumenthal were together. The parties’ relationship may have been
identical in every essential way to that of a married couple (supra ¶ 63), but those
similarities did not create a legal marriage.
¶ 126 The problems created by the majority opinion could be easily solved by
discarding Hewitt as an outmoded and unfair rule for all domestic partners. Short of
that, rehearing should be allowed to consider not the majority’s version of Brewer’s
constitutional challenge, but her actual argument that Hewitt’s rule, as applied to
same-sex domestic partners like herself and Blumenthal, whose relationships ended
before they were permitted to marry in Illinois, violates due process and equal
protection. I dissent from the denial of rehearing.
¶ 127 JUSTICE BURKE joins in this dissent upon denial of rehearing.
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Blumenthal v. Brewer
Combined Opinion