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Appellate Court of Illinois Recognizes Unjust Enrichment Cause of Action on Behalf Same-Sex Former Domestic Partner

Posted on: December 31st, 2014 by Art Leonard No Comments

The Appellate Court of Illinois ruled in Blumenthal v. Brewer, 2014 Il App (1st) 132250, 2014 Ill. App. LEXIS 904 (Dec. 19, 2014), that a state court judge who is the former same-sex partner of a physician can maintain a legal claim on the theory of unjust enrichment to seek compensation for her financial contributions towards the home they shared and the physician’s professional practice.  The court found that legislative and common law developments since 1979 had rendered the Illinois Supreme Court’s leading decision against lawsuits between former unmarried partners, Hewitt v. Hewitt, 394 N.E.2d 1204, obsolete.

Jane Blumenthal and Eileen Brewer met and became domestic partners in 1981 or 1982 when they were both graduate students at the University of Chicago.  Their partnership ended in 2008, after they had raised three children together.  By then, Blumenthal was a doctor in a lucrative partnership practice, and Brewer was an elected Illinois Superior Court judge. They had merged their finances during their partnership, and had registered as domestic partners when that option became available in Cook County in 2003.  They had cross-adopted each other’s children. They had purchased real estate together, and Blumenthal had used joint funds to buy into the medical partnership.  After Blumenthal moved out, Brewer assumed the continuing financial responsibilities of the house. The children are now all grown up and emancipated adults.  Blumenthal filed a partition action in 2010, seeking to divide the value of the house the women had purchased together to reclaim her share.  Brewer counterclaimed, seeking sole title to the property to “equalize” the parties’ assets, as she had been a stay-at-home mom for their kids until they were old enough for her to resume her legal career, Blumenthal’s medical partnership had been purchased with joint funds, and Brewer had carried the financial burden of the house since Blumenthal had moved out.  Blumenthal argued that under Hewitt v. Hewitt Brewer could not maintain such a counterclaim, and Cook County Circuit Judge LeRoy K. Martin agreed, dismissing her claim.  Brewer, represented by the National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn, appealed with amicus support from the ACLU of Illinois and Lambda Legal.

When the Illinois Supreme Court decided Hewitt, there were strong legislative policies in effect supporting that court’s view that such a lawsuit could not be brought by an unmarried cohabitant, including a statute criminalizing unmarried cohabitation, the state’s statute abolishing the doctrine of common law marriage in Illinois, and court decisions disfavoring child custody for parents who were cohabiting outside of marriage.  Brewer argued successfully to the appellate court that the legislative and judicial landscape in Illinois had changed so drastically since 1979 that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today, and the court agreed in an opinion by Justice Margaret Stanton McBride.  The judge prefaced a detailed discussion of the historical evidence by stating: “We find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer’s suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction’s abolishment of common law marriage.”

In addition to agreeing that changes in the law had rendered Hewitt obsolete, the court pointed out that the decision “may have had unintended consequences.  The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage,” wrote McBride.  “The ruling, however, may have the contrary effect – refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.  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.”  She found support for this argument in a law review article by Candace Saari Kovacic-Fleischer, “Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,” 68 Wash. & Lee L. Rev. 1407, 1424 (2011), from which she quoted at length.

“After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer’s claims against Blumenthal,” wrote Justice McBride. “Furthermore, Brewer does not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements.  Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.”  The court also noted, of course, that after the couple split up, Illinois passed first a civil union law and then a marriage equality law, further confirming the view that Illinois does not consider same-sex relationships to be “illicit” in the sense that term was used by the Illinois Supreme Court in Hewitt.

The court also noted that its decision was in line with developments in other states, including the leading California case of Marvin v. Marvin, the nation’s most celebrated “palimony” case, the revision of the common law summary in the Restatement (Third) of Restitution and Unjust Enrichment, and the changed view embraced in Corbin’s Contracts treatise, which identified the Marvin decision as having decisively influenced courts in other states to become receptive to palimony claims.  The Illinois Supreme Court had relied on previous editions of these two published sources in Hewitt.

McBride concluded that in light of the court’s determination that Hewitt no longer controlled the outcome, it was unnecessary for it to address Brewer’s argument that a contrary decision would violate the Illinois and federal constitutional guarantees of due process and equal protection of the laws.  The court vacated the circuit court’s dismissal order and remanded the case “with directions to consider the parties’ remaining arguments,” as to which the court expressed no opinion.  As part of her opposition to Brewer’s counterclaim, Blumenthal had contested some of Brewer’s factual assertions, but the trial court had not resolved that dispute when it determined that the counterclaim had to be dismissed as a matter of law.

NY Philharmonic in Beethoven, Stravinsky & Ravel – Zimmermann & Gilbert

Posted on: January 29th, 2012 by Art Leonard No Comments

Last night I attended the last of three performances of a New York Philharmonic subscription program that cannily matched Stravinsky's Symphony in Three Movements with Ravel's 2nd Suite from the ballet Daphnis & Chloe for its second half, and began with Frank Peter Zimmermann as soloist in Beethoven's Violin Concerto.  Music Director Alan Gilbert was on the podium.  The orchestra provided excellent execution, as did Zimmermann.  Yet I came away with curiously mixed impressions.

For one thing, Gilbert seems to have been hit with a strong dose of moderation in his preparation for this program, at least so far as tempo goes.  All of the tempi throughout the evening seemed to me to avoid extremes of speed or slowness. Everything went along at a moderate pace, squarely within the performing traditions of these pieces. 

This worked best in the Ravel, where the sharp articulation and instrumental unanimity, together with steady pacing and carefully-workout-out phrasing, presented the music in all of its lush wonder.  The only spoiler factor here, to a small extent, was the hall itself, or at least the hall from the perspective of my seat – 2nd tier, side box 9.  At moments of climax, the sound lacked that gorgeous combination of bloom, brilliance and depth that makes the most of Ravel's extraordinary orchestrational effects, and brass tended to sound blasty.  Perhaps that was not the case from other vantage points in the hall, but I would love to have heard this orchestra playing this piece in Carnegie Hall, with its greater warmth and space better configured to project the depth of orchestral sound conceived by Ravel, and with slightly faster tempi for Daybreak and the final General Dance.

The moderate tempi undermined the impact of Beethoven's concerto for me as well.  I don't agree with Gilbert's assertion in the program book that Beethoven's is "perhaps the greatest of all Violin Concertos."  I have frequently found the first movement to be over-extended and repetitious, and the finale to be a bit underwhelming for a work of this length, similar to the "finale problem" that has aroused some comment about the Eroica (Symphony No. 3).  Beethoven was, without doubt, one of the great musical geniuses of all time, but not every one of his productions was on the same exalted level, and the Violin Concerto is a bit more commonplace than most of his other orchestral works.  I would agree that it was the best violin concerto of its time — what other violion concerto written in the first 20 years of the 19th century is regularly played today? — but I would place Mozart's 4th and 5th Concerti about it in inspiration, and I think the Brahms Concerto places it in the shade, as do the two Prokofiev Concerti and perhaps, even, the Stravinsky Concerto.

That said, a really intense, super-charged performance of the piece can stimulate my interest (listen to Heifetz with Toscanini/NBC Symphony or with Munch/Boston Symphony, for example), but a moderate, middle-of-the-road rendition, no matter how excellent, will cause my mind to wander, as it did last night.  Zimmermann's performance was at the highest technical level, but I thought it lacked the deep emotional involvement and urge to push forward that would make the concerto more memorable.

As for the Stravinsky, I constantly wanted it to move along faster in the outer movements.  I thought the middle movement, with its restrained lyricism, worked best of the three.  This piece, although called a symphony, is really more like a ballet in its style of composition.  One hears bits and pieces of the kind of music Stravinsky was writing for Balanchine to choreograph throughout this part of his career, and there are many spots that are clear reminiscences of Le Sacre du Printemps as well as some startling foreshadowing of the ballets Aaron Copland and Leonard Bernstein were composing during that period stretching from the 1940s to the early 1950s.  Stravinsky had a heavy influence on mid-20th century tonal composers, and the source of that influence can be heard in this piece.

I can't fault the Philharmonic players, who were truly dazzling and gave Gilbert everything he asked for, with the wind soloists special standouts.  I disagreed with some of what he asked for, that's all.  And none of these were "bad" performances, it's just that they didn't excite me to the extent that this music has excited me in other hands.