Blumenthal v. Brewer

• Decision Date: 18 August 2016
• Docket Number: No. 118781.,118781.
• Citation: 2016 IL 118781,69 N.E.3d 834
• Parties: Jane E. BLUMENTHAL, Appellant, v. Eileen M. BREWER, Appellee.
• Court: Illinois Supreme Court

2016 IL 118781
69 N.E.3d 834

Jane E. BLUMENTHAL, Appellant,
v.
Eileen M. BREWER, Appellee.

No. 118781.

Supreme Court of Illinois.

Aug. 18, 2016.
Rehearing denied Oct. 20, 2016.

69 N.E.3d 839

Angelika Kuehn, of Oak Park, and Catherine Sakimura, Shannon P. Minter, Amy Whalen, and Jaime Huling Delaye, all pro hac vice and all of San Francisco, California, for appellee.

Camilla B. Taylor and John A. Knight, of Chicago, and Nancy D. Polikoff, of Washington, D.C., for amici curiae American Civil Liberties Union of Illinois et al.

OPINION

Justice KARMEIER delivered the judgment of the court, with 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, 31 Ill.Dec. 827, 394 N.E.2d 1204 (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.

69 N.E.3d 840

¶ 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, 388 Ill.Dec. 260, 24 N.E.3d 168.

¶ 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.

¶ 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,

69 N.E.3d 841

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, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979). As noted earlier, Hewitt held that Illinois public policy, as set forth in this state's statutory prohibition against common-law marriage, 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, 388 Ill.Dec. 260, 24 N.E.3d 168. 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...