Court of Appeals of Illinois, First District, Fourth Division
In re MARRIAGE OF KEITH M. ALLEN, Petitioner-Appellee, and DEBRA DURHAM ALLEN, Respondent-Appellant.
from the Circuit Court of Cook County, No. 13-D-06148; the
Hon. John Thomas Carr, Judge, presiding.
Stein and Katya C. Manak, both of Stein & Stein, Ltd., of
Chicago, for appellant.
J. Bargiel, and Alan D. Hoffenberg, Gloria E. Block, and
Tiffany M. Alexander, of Alexander, Hoffenberg & Block,
LLC, both of Chicago, for appellee.
McBRIDE PRESIDING JUSTICE delivered the judgment of the
court, with opinion. Justices Gordon and Reyes concurred in
the judgment and opinion.
McBRIDE PRESIDING JUSTICE
1 Keith M. Allen and Debra Durham Allen had been married for
less than seven months when they cross-petitioned for
dissolution of their marriage pursuant to the Illinois
Marriage and Dissolution of Marriage Act. 750 ILCS 5/401
(West 2012). Shortly before their property and maintenance
dispute went to trial, Debra sought leave to amend her
petition with common-law claims based on 13 premarital years
of cohabitation that were "not unlike a marriage."
The trial court denied the motion and declined the offer of
proof Debra made during the trial, then dissolved the
marriage and awarded property and maintenance on the basis of
the brief marriage. Debra appeals the two adverse rulings.
2 Keith, who was born in 1960, has had a long and lucrative
association with the McDonald's chain of restaurants,
beginning in 1976 with his employment as a crew member and
culminating in his ownership in 2004 of six franchised
locations. In addition to the restaurants, Keith owns
multiple homes and motor vehicles and has other substantial
assets. Some of the assets are owned through corporations or
a trust, but the precise form of ownership is irrelevant for
purposes of this appeal. Debra's financial resources are
modest. She was born in 1963, attended college for a few
years, has worked in administrative and retail positions, and
also has training and some experience in interior design. The
couple first cohabitated in Keith's home in 2000 or 2001,
however, they have never lived together continuously and,
between 2000 and 2012, Debra resided for periods up to six
months in Illinois and Indiana and for a year in Michigan.
They married in late 2012, but separated by early 2013 when
Debra returned to Indiana. In July and August 2013,
respectively, they filed cross petitions for dissolution. The
parties' primary dispute was whether Debra was entitled
to a greater share of the marital property and to
maintenance. Discovery ensued, as did motions regarding
temporary maintenance and compliance with discovery requests.
A trial was scheduled for late 2014 and then rescheduled to
3 Days before the Allens' trial, we issued our decision
in Blumenthal v. Brewer, 2014 IL App (1st) 132250,
24 N.E.3d 168, recognizing the right of a woman in a same-sex
relationship to bring common-law claims to distribute
property she had jointly accumulated with her partner while
cohabitating for 26 years during the period when Illinois
treated same-sex relationships as illicit and did not
recognize same-sex marriages.
4 Debra filed an emergency motion for leave to add a claim of
unjust enrichment and/or quantum meruit against her
husband on the basis of Blumenthal.
Blumenthal, 2014 IL App (1st) 132250, 24 N.E.3d 168.
Debra contended that for many years before their wedding
ceremony, she and Keith "engaged in a devoted,
monogamous, residential and codependent relationship not
unlike that of a marriage" and that but for her
"dutiful service, " Keith would not have
accumulated "the substantial wealth that he has
today." She asked to postpone the trial and reopen
discovery into Keith's assets as far back as the start of
the couple's relationship in 1999, and thus encompass the
period when Keith first began leasing and franchising
McDonald's restaurants. Debra also asked to be awarded
$30, 000 from Keith with which to retain a financial expert
who would analyze and testify to the increase in Keith's
assets during the parties' unmarried years together, and
to be awarded $50, 000 in attorney fees from Keith so that
her divorce attorney could pursue discovery and prepare the
5 The trial court denied Debra's motion and her motion
for reconsideration or, in the alternative, for judicial
findings that would allow Debra to take an immediate appeal
concerning the applicability of Blumenthal. The
judge stated, "I believe the Supreme Court in the
Hewitt case does not allow me to grant the relief
requested." The judge was referring to the Illinois
Supreme Court's 1979 decision in Hewitt v.
Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204 (1979), which
rejected equitable or quasi-contract claims between an
unmarried, opposite-sex couple.
6 During the Allens' dissolution trial, the judge
sustained Keith's objections to questions which Debra
posed to support of her common-law claims, and when Debra
asked to make a formal offer of proof, the judge denied the
request. After the trial, the judge entered a final judgment
order of dissolution in May 2015 and awarded Debra property
totaling $18, 545 and 6.4 months of maintenance totaling $22,
600. The award was far less than Debra suggested in her
motion for leave to add a common-law claim based on her
premarital "wife-like" support of Keith during some
of the years he was building a lucrative career and
accumulating substantial assets.
7 Debra's main contention is that the judge misconstrued
the significance of Hewitt and Blumenthal.
Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204;
Blumenthal, 2014 IL App (1st) 132250, 24 N.E.3d 168.
Hewitt concerned an unmarried, opposite-sex couple
who had a family-like relationship for 15 years, during which
there was no legal impediment to prevent the man and woman
from marrying. Hewitt, 77 Ill.2d 49, 394 N.E.2d
1204. Following the breakdown of their relationship, the
woman, Victoria, filed for dissolution of her marriage from
the man, Robert, but her complaint was dismissed because the
couple knowingly never obtained a marriage license or had a
marriage ceremony. Hewitt, 77 Ill.2d at 52-53, 394
N.E.2d at 1205. In an amended complaint, Victoria alleged she
was entitled to one-half of Robert's property and profits
based on his express promise, an implied contract, fraud, and
unjust enrichment. Hewitt, 77 Ill.2d at 53, 394
N.E.2d at 1205. The Illinois Supreme Court rejected all of
Victoria's claims. The court found that the judiciary
should not recognize mutual property rights between unmarried
couples for several reasons. First, it is not the
judiciary's role to change the laws regarding marriage.
Hewitt, 77 Ill.2d at 61, 394 N.E.2d at 1209. Such a
significant change in the "delicate area of
marriage-like relationships *** [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." Hewitt, 77 Ill.2d at 61, 394 N.E.2d at
1209. Second, the Illinois Marriage and Dissolution of
Marriage Act expressly prohibited the recognition of
common-law marriage, which was precisely the type of
relationship that existed between Victoria and Robert.
Hewitt, 77 Ill.2d at 62, 394 N.E.2d at 1209 (the
statute is intended to strengthen and preserve the integrity
of marriage and it explicitly states " 'Common law
marriages contracted in this State after June 30, 1905 are
invalid.' " (quoting Ill. Rev. Stat. 1977, ch. 40,
¶ 214)). In addition, in enacting the civil law concept
of the putative spouse, the legislature clearly had the
opportunity to create property rights for a class of
unmarried people beyond the putative spouses, but the
legislature did not create those rights. Hewitt, 77
Ill.2d at 66, 394 N.E.2d at 1210. The legislature provided
that an unmarried person may 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 or she
is validly married. Hewitt, 77 Ill.2d at 64, 394
N.E.2d at 1210. Thus, the legislature "extended legal
recognition to a class of nonmarital relationships, but only
to the extent of a party's good-faith belief in the
existence of a valid marriage." Hewitt, 77
Ill.2d at 64, 394 N.E.2d at 1210. The court remarked on the
fact that during the legislature's deliberations on the
statute, the landmark California case on palimony, Marvin
v. Marvin, 557 P.2d 106 (Cal. 1976) (en banc),
had been decided and widely publicized. Hewitt, 77
Ill.2d at 64, 394 N.E.2d at 1210. The Supreme Court of
California found that partners in nonmarital relationships
may bring claims for property division based on both express
and implied contracts. Marvin, 557 P.2d 106. Our
supreme court considered all of these circumstances before
concluding there was "a recent and unmistakeable
[Illinois] legislative judgment disfavoring the grant of
mutual property rights to knowingly unmarried
cohabitants." Hewitt, 77 Ill.2d at 64, 394
N.E.2d at 1210. Thus, Illinois public policy, which is found
primarily in its statutes, was to disfavor "private
contractual alternatives to marriage." Hewitt,
77 Ill.2d at 64, 394 N.E.2d at 1210. American Federation
of State, County & Municipal Employees v. Department of
Central Management Services, 173 Ill.2d 299, 307, 671
N.E.2d 668, 674 (1996) (courts look to the state's
constitution and statutes to ascertain public policy, and
when those are silent, to judicial opinions).
8 Subsequently, Jane E. Blumenthal, a physician, brought suit
to partition a Chicago home that she owned with Eileen M.
Brewer, her former domestic partner of 26 years.
Blumenthal, 2014 IL App (1st) 132250, ¶ 1, 24
N.E.3d 168. The women had raised three children together in
the home. Blumenthal, 2014 IL App (1st) 132250,
¶ 1, 24 N.E.3d 168. Brewer, a circuit court judge,
counterclaimed for various remedies, including imposition of
a constructive trust over the property to prevent unjust
enrichment arising from Blumenthal's greater net worth at
the end of their domestic partnership. Blumenthal,
2014 IL App (1st) 132250, ¶ 11, 24 N.E.3d 168. Brewer
also sought a constructive trust over the earnings or the
sale of Blumenthal's share of her medical practice to
prevent unjust enrichment, or in the alternative, restitution
of the funds Blumenthal allegedly took from the couple's
joint bank account to buy into the medical practice.
Blumenthal, 2014 IL App (1st) 132250, ¶ 11, 24
N.E.3d 168. The trial court granted Blumenthal's motion
to dismiss, finding that, based on the parties' ...