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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.