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Hewitt v. Hewitt





APPEAL from the Circuit Court of Champaign County; the Hon. HAROLD L. JENSEN, Judge, presiding.


Plaintiff appeals from the order of the trial court dismissing her complaint which prayed that the court grant to her a just, fair share of the property, earnings, and profits of the defendant, order a proper provision for support and maintenance of plaintiff and their minor children, or, in the alternative, divide the joint tenancy property of the parties and impress a trust on other property acquired through the joint efforts of plaintiff and defendant.

Plaintiff's initial pleading was a complaint for divorce alleging a marriage in Iowa in June 1960, their subsequent cohabitation as husband and wife until September 1975, and the birth of three children. The trial court heard evidence on defendant's motion to dismiss. His memorandum opinion found that plaintiff conceded that there was no marriage ceremony as alleged in the complaint, that the parties had never lived together in the State of Iowa and that there was no common-law marriage which the court might recognize.

The trial court also found that defendant admitted the paternity of the children, that the only question upon that issue was that of child support, and that it was unnecessary to require a separate action to be brought under the Paternity Act. (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 51 et seq.) The court further found that certain property was held in joint tenancy and plaintiff was directed to amend her pleadings to make her complaint more definite and certain as to the nature of the property in joint tenancy.

The order on appeal was directed to an amended count which contained the following allegations: That prior to June 1960, the parties were residents of Illinois attending Grinell College in Iowa, that plaintiff became pregnant, and that on or about such date the defendant told plaintiff that they were husband and wife and that they would thereafter live together as such; that no formal marriage ceremony was necessary and that defendant stated that he would thereafter share his life, future earnings, and property with plaintiff; that the parties immediately announced their marriage to their respective parents, thereafter lived together as husband and wife and that in reliance upon defendant's representations she devoted her entire efforts to assisting in the completion of defendant's professional education and the establishing of his successful practice of pedodontia; that such professional education was assisted financially by the parents of plaintiff; that plaintiff assisted defendant in the practice of his profession by virtue of her special skills and that although plaintiff was given a payroll check for such services the monies were placed in the family funds and used for family purposes. It is further alleged that defendant is a successful professional man with an income of $80,000 per year who has acquired property both in joint tenancy and as separate property, and that the assistance and encouragement and industry of the plaintiff were directed to the acquiring of such property and professional pecuniary advancement of defendant.

It is alleged that plaintiff furnished defendant with every assistance that a wife and mother could give, including social activities designed to enhance defendant's social and professional reputation. Plaintiff further alleges that for 17 years defendant represented to her and to all the world that they were husband and wife and that she has relied upon such representations to her detriment, and that she should be entitled to equal division of the property whether in joint tenancy or in the sole name of defendant.

It is alleged that the court should enforce the implied contract evidenced by the conduct of the parties; that plaintiff relied upon defendant's representation that they were partners within the family relationship; and that defendant knowing that the alleged marriage was not legal nevertheless continued to assure plaintiff that she was his wife and continued to hold himself out as husband of the plaintiff to secure the benefits to be gained through the services, devotion, thrift, and industry of plaintiff invested in the family relationship so that the property of the defendant should be impressed with a trust to protect plaintiff from the frauds and deception of the defendant.

The order of the trial court on appeal found that the law and public policy of the State requires the claims of plaintiff to be based upon a valid legal marriage; that there was no such legal marriage shown by the facts alleged; and that the allegations failed to state a cause of action recognized in Illinois upon a theory of implied contract, joint venture, or partnership. The order does not expressly speak to the allegation of an express oral contract, but we will presume that the ruling would be the same.

In argument, defendant has referred to plaintiff as a meretricious spouse living in a meretricious relationship. The adjective should be examined in its precise meaning, i.e., "Of, pertaining to, befitting or of a character of a harlot" (Shorter Oxford English Dictionary (1934)), or, "Of or relating to a prostitute" (Webster's New Collegiate Dictionary (1973)). Neither is it correct to refer to plaintiff as a concubine which is defined as "1: a woman living in a socially recognized state of concubinage * * * MISTRESS." (Emphasis supplied.) Webster's New Collegiate Dictionary (1973).

The well-pleaded facts contradict the terms in showing that the parties lived, and for a time, enjoyed a most conventional, respectable and ordinary family life. The single flaw is that for reasons not explained, the parties failed to procure a license, a ceremony, and a registration of a marriage. Upon the present pleading nothing discloses a scandal, an affront to family living or society, or anything other than that the parties were known as husband and wife. We refuse to weigh defendant's claim in the context of such epithets.

All parties agreed that no court of review in Illinois has examined claims arising under comparable circumstances. See cases collected in Annot., 31 A.L.R. 2d 1255 (1953), and its supplements.

Defendant argues that plaintiff's claims must be defeated upon the grounds of public policy in that all rights must rest upon a valid marriage contract within the provisions of the Illinois Marriage and Dissolution of Marriage Act, effective October 1, 1977. Section 102 of that Act (Ill. Rev. Stat. 1977, ch. 40, par. 102) states that:

"[I]ts underlying purposes * * * are to:

(1) provide adequate procedures for the solemnization and registration of marriage;

(2) strengthen and preserve the integrity of marriage and safeguard family relationships; * * *."

The provisions of the Act do not undertake to prohibit cohabitation without such solemnization of marriage. Its section 201 provides:

"A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this State."

Upon the facts pleaded, plaintiff has for more than 15 years lived within the legitimate boundaries of a marriage and family relationship of a most conventional sort. The record does not suggest that the parties' relationship came within the proscription ...

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