In re MARRIAGE OF KEITH M. ALLEN, Petitioner-Appellee, and DEBRA DURHAM ALLEN, Respondent-Appellant.
from the Circuit Court of Cook County 13-D-06148 Honorable
John Thomas Carr, Judge Presiding
PRESIDING JUSTICE McBRIDE 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 pre-marital 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
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 co-dependent 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 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
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
pre-marital "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, 72 Ill.2d at 61, 394 N.E.2d at 1209. Such a
significant change in the "delicate area of marriagelike
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, 72 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, 72 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.' "). 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, 72 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, 72
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, 72 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, 18 Cal.3d 660, 557 P.2d
106 (1976), had been decided and widely publicized.
Hewitt, 72 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, 18
Cal.3d 660, 557 P.2d 106. Our supreme court considered all of
these circumstances before concluding there was "a
recent and unmistakable [Illinois] legislative judgment
disfavoring the grant of mutual property rights to knowingly
unmarried cohabitants." Hewitt, 72 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, 72 Ill.2d at 64, 394 N.E.2d at 1210.
American Federation of State, County & Municipal
Employees, AFL-CIO v. Dep't 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' domestic
relationship, Brewer's counterclaims were barred by
Hewitt. Hewitt, 77 Ill.2d 49, 394 N.E.2d
1204. In its ruling on the motion to dismiss, the court did
not consider the factual sufficiency of Brewer's
counterclaims. Blumenthal, 2014 IL App (1st) 132250,
¶ 15, 24 N.E.3d 168.
9 Brewer appealed to this court and argued, in part, that
Hewitt had been "implicitly overruled" by
subsequent legislation favorable to same-sex domestic
partnerships. Blumenthal, 2014 IL App (1st) 132250,
¶ 1, 24 N.E.3d 168. We did not agree with Brewer's
conclusion and, in any event, we do not have authority to
"overrule" a Supreme Court decision. Du Page
County Airport Authority v. Dep't of Revenue, 358
Ill.App.3d 476, 486, 831 N.E.2d 30, 39 (2005) (lower courts
are bound to follow supreme court precedent); Hensley v.
Hensley, 62 Ill.App.2d 252, 259, 210 N.E.2d 568, 572
(1965) (it is not "the function of an appellate court to
overrule or attempt to overrule or criticize the decisions of
the highest judicial tribunal of our state"); Sims
v. Sneed, 118 Ill.App.2d 294, 297, 254 N.E.2d
316, 318 (1969) (an inferior appellate court can not deviate
from the public policy established by the highest appellate
court); Agricultural Transportation Ass'n v.
Carpentier, 2 Ill.2d 19, 27, 116 N.E.2d 863, 867 (1953)
("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.").
10 Instead, we did not believe Hewitt was
controlling on the question of whether same-sex domestic
partners could bring common law claims regarding property
they accumulated together. Hewitt, 77 Ill.2d 49, 394
N.E.2d 1204. Throughout the entirety of their relationship,
Blumenthal and Brewer had been precluded from marrying in
Illinois. We focused on public policy and observed an
unmistakable and overwhelming trend of recognizing the
legitimacy of same-sex domestic partnerships. When
Hewitt was decided, it was public policy to treat
all unmarried relationships as illicit and the supreme court
had pointed out, "Illinois' public policy regarding
agreements such as the one alleged here was implemented long
ago in [an 1882 opinion] where this court said: 'An
agreement in consideration of future illicit cohabitation
between the plaintiffs is void.' This is the traditional
rule, in force until recent years in all jurisdictions."
Hewitt, 72 Ill.2d at 58-59, 394 N.E.2d at 1208.
However, in the 35 years since Hewitt, the Illinois
legislature repealed the criminal prohibition on nonmarital
cohabitation, prohibited differential treatment of marital
and nonmarital children, adopted no-fault divorce in place of
the undignified system which had required the court to assign
blame or fault to a specific spouse, established civil unions
for both opposite-sex and same-sex partners which provided
for them to receive all the rights and burdens available to
married persons, and extended other protections to nonmarital
families. Blumenthal, 2014 IL App (1st) 132250,
¶¶ 24, 27, 33, 34, 24 N.E.3d 168, citing
e.g., Pub. Act 86-490 (eff. Jan 1, 1990) (deleting
"cohabits" from criminal code 720 ILCS 5/11-40
(West 2010)); Pub. Act 83-1372 (eff. July 1985) (creating 750
ILS 45/3 (West 2012) which extended support obligation to
every child regardless of parents' marital status); Pub.
Act 80-1429, §1 (eff. Sept. 12, 1978) (amending probate
act to provide for intestate inheritance rights of children
of unmarried parents); Pub. Act 84-1028 § 1 (eff. Nov.
18, 1984) (amending pension code to entitle children of
unmarried parents to survivor's benefits); Pub. Act
83-954 (eff. July 1, 1984 (allowing either spouse to
dissolution on basis of "irreconcilable
differences"); 750 ILCS 75.1 et seq. (West
2010) (Religious Freedom Protection and Civil Union Act); and
750 ILCS 80/1 et. seq. (West 2014) (Religious Freedom and
Marriage Fairness Act). Thus, there were significant
indications after Hewitt's publication that
Illinois' legislators no longer disfavored unmarried
cohabitation or same-sex relationships in general.
11 Furthermore, some of the authority underpinning
Hewitt no longer existed when Blumenthal
was argued in 2014. For instance, the supreme court's
discussion of the "traditional rule" to treat all
bargains between unmarried couples as illegal contracts was
based on a version of the Restatement of Contracts that was
abandoned shortly after Hewitt's publication in
1979 when the legal treatise was updated in 1981.
Blumenthal, 2104 IL App (1st) 132250, ¶ 28, 24
N.E.3d 168. The supreme court's discussion was also based
on a section of Corbin on Contracts issued in 1962 that was
entitled "Bargains in Furtherance of Immorality"
and gave the example ...