Illinois Supreme Court declines to extend property rights to unmarried partners
By Michael T. Reagan, Law Offices of Michael T. Reagan
In Blumenthal v. Brewer, 2016 IL 118781, the court reaffirmed Hewitt v. Hewitt, 77 Ill.2d 49 (1979) which concerned the rights of unmarried cohabitants, restated that the Supreme Court alone may overrule or modify one of its previous opinions, and concluded that it is exclusively for the legislature to determine whether a change in public policy governing the rights of parties in nonmarital relationships is necessary. Justice Karmeier wrote for the majority; Justice Theis, with Justice Burke joining her, wrote separately, concurring in part and dissenting in part.
Jane Blumenthal, a physician, and Eileen Brewer, a circuit judge, had been domestic partners since approximately 1981. That relationship ended in 2008. During the time that they were together, they purchased a residence in Illinois, acquired other property, and Blumenthal acquired an ownership interest in a medical professional corporation. Children were born to both partners during their relationship. It is alleged that by agreement Brewer devoted more time to the care of the children and the partners’ residence, thereby enabling Blumenthal to attain greater earning power than Brewer. When the relationship ended and Blumenthal vacated their residence, Brewer assumed the ongoing obligations for the necessary payments and maintenance of the property.
This litigation began when Blumenthal sued for partition of the residence. Brewer counterclaimed for various common law relief, including sole title to the home, as well as an interest in Blumenthal’s earnings and ownership share in the medical practice so that the couple’s overall assets would be equalized upon the end of the relationship. Blumenthal obtained an order from the circuit court dismissing the entirety of the counterclaim, under the authority of Hewitt.
The partition action proceeded to final judgment. The circuit court split the value of the home, with adjustments for Blumenthal having paid the earnest money and down-payment, and Brewer having later attended to the mortgage, taxes, insurance, and repairs. No appeal was taken from that order, and Brewer bought out Blumenthal’s share in accordance with the circuit court’s valuations.
The controversy is presented here on the five counts of Brewer’s counterclaim. The Supreme Court characterized four of those counts as pertaining directly to the disposition of the home and its proceeds, setting out theories of constructive trust based on unjust enrichment, equitable division, a theory based on the amounts expended by Brewer in maintenance after a particular date, and quantum meruit. The remaining count sought a constructive trust over the earnings or sale of Blumenthal’s share of the medical practice, or in the alternative, restitution of funds used by Blumenthal obtained from the couple’s joint account to purchase her share in the practice. The appellate court, in a lengthy opinion which reviewed many legislative and societal changes since Hewitt was decided in 1979, reversed the dismissal of the counterclaim, and remanded the matter to the trial court for consideration of additional issues.
The Supreme Court reversed the appellate court with respect to the Counterclaim and affirmed the circuit court’s dismissal.
The Supreme Court held that the appellate court did not have jurisdiction to entertain the appeal from the dismissal of the four counts relating to the division of the value of the residence. The court stated that those counts did not present claims distinct from Blumenthal’s action, but rather “advanced different analytical approaches for determining how the home or its proceeds should be allocated.” The court drew upon the principle that where a claim is based on the same operative facts but is stated differently in multiple counts, the dismissal of fewer than all of the counts is not a final judgment as required by Supreme Court Rule 304(a). Therefore, the order of the circuit court dismissing those four counts was not final, and was not appealable under Supreme Court Rule 304(a), despite the circuit court’s finding to the contrary.
A second reason stated by the Supreme Court for reversal of the appellate court on those counts was that even if the appellate court had jurisdiction, an appellate court does not have the authority to declare Supreme Court precedent to be no longer controlling. The Supreme Court further noted that because the parties had acted upon the judgment entered with respect to partition and allocation of the proceeds without an appeal having been taken, that that aspect of the claim is moot.
The Supreme Court did have jurisdiction to take up the consideration of Count III of the counterclaim, which sought a constructive trust and restitution with respect to the medical practice, because that claim was unrelated to the partition or value of the residence. The court first recognized the centrality of the ongoing statutory prohibition of common-law marriage and the court’s decision in Hewitt. The court noted that “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.” The Hewitt court concluded that the rights of parties with respect to marriage-like relationships was best relegated to the superior investigative and fact-finding facility of the legislative branch and to the legislature’s traditional role of declaring public policy in the domestic relations field. The court disavowed Hewitt’s comments about illicit or meretricious relationships. The court found the present case to be almost indistinguishable from Hewitt, except that the parties here were in a same-sex relationship. The court described Hewitt as having done no more than follow the statutory provision abolishing common law marriage, which embodied the public policy that individuals acting privately, without the involvement of the state, can create marriage-like benefits.
The Supreme Court held that the appellate court acted improperly in declining to follow Hewitt. The court further stated that “when considering the property rights of unmarried cohabitants, our view of Hewitt’s holding has not changed. Brewer’s invitation to overrule Hewitt was declined.
With respect to the facts of this case, the court stated that there was no showing that the Counterclaim had an independent economic basis apart from the relationship between the parties and accordingly, the claim contravenes public policy implicit within the statutory scheme of the Marriage and Dissolution Act. The court reviewed the numerous post-statutory changes but found no evidence therein of a legislative intent to change the relevant public policy. The court also noted that the legislature has not acted to reverse the judicial view of the statutory scheme as expressed in Hewitt. The court found that “the current legislative and judicial trend is to uphold the institution of marriage,” citing in part the opinion of the Supreme Court of the United States in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) which held that same-sex couples could not be denied the right to marry. The court concluded that it is perhaps “more imperative than before” that these questions be left to the legislative branch.
Justice Theis, concurring and dissenting, agreed with the majority’s disposition of the four counts of the Counterclaim relating to the residence. She also agreed with the majority’s holding that the remaining count, concerning the constructive trust relating to the medical practice, cannot proceed. However, she disagreed in detailed length with the majority’s holding that that claim could not proceed on the theory of restitution. She noted that the trial court dismissed the entirety of the Counterclaim because it felt bound by Hewitt. However, “the central question for us to decide here is whether we should” follow Hewitt. She concluded that there was “good cause” to overrule Hewitt. She expressed the opinion that the Hewitt decision “was clouded by an inappropriate and moralistic view of domestic partners who cohabit and founded upon legal principles that have changed significantly.” She described the majority’s attempt “to distance itself from Hewitt’s sweeping and near-defamatory statement (concerning ‘illicit’ or ‘meretricious’ behavior) is unconvincing.” The dissent states that the insistence upon describing Hewitt as good law “is to reaffirm an oddly myopic and moralistic view of cohabitation.” The dissent develops at length an argument that “Hewitt’s support for the rule of illegality has disappeared.”
As was done by the appellate court as well, the dissent notes changes in the Restatement of Contracts and in Corbin on Contracts. The Restatement (Third) of Restitution and Unjust Enrichment contains a new section that provides former domestic partners with an avenue to prevent unjust enrichment upon the dissolution of the relationship. The dissent states that a vast majority of states which have chosen not to recognize common-law marriages at the same time recognize claims like those brought here. The dissent states that “Illinois is a clear outlier on this issue.”
Justice Theis’ opinion asserts that Hewitt also must be overruled because the legal landscape has changed so much. The dissenters interpret the silence of the legislature differently than does the majority. “Simply because the legislature has taken some actions in the domestic relations arena, it does not mean that this court cannot act as well.”
Summing up, the dissenters state that “Brewer does not seek ‘marriage-like benefits’ … She simply asked to bring the same common-law claims available to other people … The fact that Brewer and Blumenthal were once domestic partners should be no impediment.” The dissenters call for the overruling of Hewitt, because “its flaws have become more apparent with time.”