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Blumenthal v. Brewer

Supreme Court of Illinois

October 20, 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.



         ¶ 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.

         ¶ 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, 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, 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 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 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.

         ¶ 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)).

         ¶ 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. 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 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 ...

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