JANE E. BLUMENTHAL, Plaintiff-Appellee, v. EILEEN M. BREWER, Defendant-Appellant.
No. 1-13-2250
Appellate Court of Illinois, First District, Fifth Division
December 19, 2014
2014 IL App (1st) 132250
Appellate Court
Blumenthal v. Brewer, 2014 IL App (1st) 132250
Appellate Court Caption JANE E. BLUMENTHAL, Plaintiff-Appellee, v. EILEEN M. BREWER, Defendant-Appellant.
District & No. First District, Fifth Division Docket No. 1-13-2250
Filed December 19, 2014
Decision Under Review Appeal from the Circuit Court of Cook County, No. 10-CH-48730; the Hon. LeRoy K. Martin, Judge, presiding.
Judgment Vacated and remanded with directions.
Counsel on Appeal Angelika Kuehn, of Angelika Kuehn Law Offices, of Oak Park, and Shannon Minter, pro hac vice, Amy Whelan, pro hac vice, and Cathy Sakimura, pro hac vice, all of National Center for Lesbian Rights, of San Francisco, California, for appellant.
Reuben A. Bernick, of Chicago, for appellee.
John A. Knight, of Robert Baldwin Foundation of ACLU, Inc., and Camilla B. Taylor, of Lambda Legal Defense & Education Fund, Inc., both of Chicago, and Nancy D. Polikoff, of American University Washington College of Law, of Washington, D.C., for amici curiae.
OPINION
¶ 1 In 2010, Jane E. Blumenthal filed suit to partition a Chicago home she owned with Eileen M. Brewer, her former domestic partner of 26 years. Brewer counterclaimed for various remedies, including to receive sole title to the property so that the couple‘s overall assets would be equalized after she stayed at home with the couple‘s three children while Blumenthal was the family‘s breadwinner. The trial court dismissed Brewer‘s counterclaims as factually deficient, relying upon a 1979 decision, Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979). In Hewitt, the court rejected on public policy grounds a woman‘s suit to divide assets she accumulated with a man during a 15-year relationship in which they lived together, had three children together, but never married. Brewer appeals, primarily contending that Hewitt has been implicitly overruled by subsequent legislation favorable to same-sex domestic partnerships. American Civil Liberties Union of Illinois and Lambda Legal Defense & Education Fund, Inc., have filed an amici curiae brief in support of Brewer.
¶ 2 When a party presents a motion to dismiss a pleading or count as factually deficient, the court determines whether there are actually sufficient allegations that, if proven, could entitle the complainant to relief. In re Marriage of Centioli, 335 Ill. App. 3d 650, 781 N.E.2d 611 (2002);
¶ 3 The pleading at issue here relates the following. Brewer and Blumenthal became domestic partners in 1981 or 1982, while they were pursuing graduate studies at the University of Chicago. At no point during their ensuing relationship were same-sex couples legally entitled to marry in Illinois. The pair, however, exchanged rings as symbols of their lifelong commitment to each other and presented themselves to their families and friends as a committed couple.
¶ 4 Brewer subsequently attained a law dеgree from Harvard Law School and Blumenthal attained a medical degree from an undisclosed school.
¶ 5 After law school, Brewer gave birth to a child in 1990 and a second child in 1992. Blumenthal gave birth to a child in 1993. The couple gave all three children the same last name.
¶ 6 To best care for their children, the couple deliberately allocated their work and family responsibilities. Brewer stayed home for a while as the children‘s primary caregiver and then
¶ 7 The couple also took legal steps because of their lifelong commitment. In 2002, they went through the procedures to cross-adopt their three children, including undergoing a home study. Later that same year, the circuit court of Cook County granted their jointly filеd cross-adoption petition. In 2002, the Cook County board of commissioners created the “Domestic Partner Registry” so that same-sex couples in Chicago and suburban Cook County could formally document their partnerships. The local ordinance which created the registry stated in relevant part: “Our society has created diverse living arrangements and an expanded concept of the family unit“; “Many persons today live as families in enduring, committed relationships other than legal marriages“; “The County of Cook has an interest in supporting all caring, committed and responsible family units“; “The County also recognizes that it is in the public interest for persons in committed relationships and who share common households to be able to register those relationships formally“; “Over 5,000 companies, foundations, unions, and nonprofit organizations have domestic partnership benefit programs“; “Cook County would be providing a service to those companies, foundations, unions and non-profits in Cook County by creating an official depository of information with a government agency“; and “A government-issued certificate of registered domestic partnership makes it easier for small businesses to provide benefits to all types of families.” Cook County Ordinance No. 03-O-18 (approved July 1, 2003). Blumenthal and Brewer added their names to the county roll in 2003. In registering, they signed an affidavit stating in part,
“We, the undersigned, being duly sworn, do declare that on or before January in the year 1981 we agreed to live as domestic partners, and that we have so lived since that time. We further state that we have since that time held ourselves out to be each other‘s sole domestic partner and that neither of us is married. To fulfill the requirements established by Cook County for benefits coverage we furthеr attest that:
*** We are each other‘s sole domestic partner, responsible for each other‘s common welfare ***. [Also, we jointly own a residence, and have a joint credit card and joint checking account, and Blumenthal is the primary beneficiary of the will executed by Cook County employee Brewer.]” 1
¶ 8 In 2005, when Illinois neither provided for same-sex marriage nor recognized out-of-state same-sex marriages, Blumenthal and Brewer took out a marriage license in Massachusetts. They did not, however, marry in that state.
¶ 9 In January 2008, when the children were teenagers, Blumenthal unilaterally ended her domestic partnership with Brewer by vacating the family home. The records of this court indicate that in a separate action, the former partners resolved issues of custody, child support, and responsibility for expenses such as the children‘s college costs. In re Custody of J.M.B., 2013 IL App (1st) 122142-U. By 2011, all three children were emancipated adults.
¶ 10 Blumenthаl contributed some of the costs of maintaining the residence in 2008, but as of January 2009, Brewer became solely responsible for the property‘s upkeep and its mortgage payments, real estate taxes, and insurance. Between 2008 and 2013, Brewer spent in excess of $215,000 on the property. She also contributed at least 15 hours per week of her personal time to the property‘s care. Brewer contributed more money than Blumenthal despite the fact that Blumenthal‘s net worth, without including inheritances, exceeded and exceeds Brewer‘s net worth by more than $500,000. Furthermore, due to the disproportionate time and attention that Blumenthal was able to give to her career during the relationship, Blumenthal has not only a valuable medical practice, but also more income and savings than Brewer.
¶ 11 Based on these allegations, Brewer seeks the imposition of a constructive trust over the Kimbark Avenue residence to prevent unjust enrichment arising from Blumenthal‘s greater net worth at the end of the relationship (count I) or, in the alternative, a partition which adjusts for Brewer‘s sole financial liability for the property since 2009 (count II, count IV) and which adjusts for the value of Brewer‘s personal hours improving the property since 2008 based on the theory of quantum meruit (count V). Brewer also seeks the imposition of a constructive trust over the annual net earnings or the sale of Blumenthal‘s share of her medical practice to prevent unjust enrichment or, in the alternative, restitution of the funds that, on information and belief, Blumenthal took from the couple‘s joint account between 2000 and 2008 to buy into the six-doctor practice (count III).
¶ 13 Also relevant is that restitution is an equitable remedy and the basis of liability is unjust enrichment. Independent Voters of Illinois v. Illinois Commerce Comm‘n, 117 Ill. 2d 90, 98, 510 N.E.2d 850, 854 (1987).
¶ 14 To recover under the theory of quantum meruit, the plaintiff must prove that: (1) she performed a service to benefit the defendant, (2) she did not perform this service gratuitously, (3) defendant accepted this service, and (4) no contract existed to prescribe payment for this service. Canel & Hale, Ltd. v. Tobin, 304 Ill. App. 3d 906, 710 N.E.2d 861 (1999).
¶ 15 When Brewer prepared to file a counterclaim containing these allegations and claims, Blumenthal filed a legal memorandum indicating that Illinois public policy, as stated in Hewitt, does not allow for implied contract claims based on nonmarital cohabitation. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204. Blumenthal further argued that even if Illinois recognized claims between unmarried domestic partners, Brewer‘s allegations were factually deficient. After further briefing and oral arguments, the trial judge granted Brewer leave to file her proposed amended counterclaim, treated Blumenthal‘s memo as a section 2-615 motion to dismiss Brewer‘s pleading (
¶ 16 Brewer now argues that the trial court‘s reliance on the 35-year-old Hewitt opinion was misplaced because the legislative policies underlying that decision either no longer exist or have been modified substantially. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204. She contends it was
¶ 17 Blumenthal responds 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 (
¶ 18 We find some merit in both parties’ arguments. We agree with Brewer that Hewitt is based on public policy considerations and we agree with Blumenthal that Hewitt gives effect to the legislature‘s ban on common law marriage. Nevertheless, for the following reasons, we find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer‘s suit is not an attеmpt 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.
¶ 19 In Hewitt, Victoria Hewitt initially filed a complaint to divorce Robert Hewitt, but then acknowledged that the parties never took out a marriage license or took part in a marriage ceremony. Hewitt, 77 Ill. 2d at 52, 394 N.E.2d at 1205. Her amended complaint or the parties’ testimony indicated that after Robert and Victoria conceived a baby while they were college students in 1960, Robert told Victoria they would share their assets and were husband and wife without need of a formal ceremony, they immediately announced to their parents they were married, and for the next 15 years they held themselves out to be a married couple. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. During those years, they had two more children and coordinated their efforts and assets as if they were married, including investing in the success of the “husband‘s” dental schooling and practice. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. After her complaint for divorce was dismissed, Victoria refiled. Hewitt, 77 Ill. 2d at 52-53, 394 N.E.2d at 1205. She claimed an equal share of the property and profits she accumulated with Robert, based on breach of his express promise that they would share their assets without need of a formal ceremony, implied contract, fraud on his part, and detrimental reliance on her part. Hewitt, 77 Ill. 2d at 53, 394 N.E.2d at 1205. The trial court dismissed Victoria‘s suit because there was no marriage, but the appellate court reversed, holding that because the relationship was outwardly a conventional marriage, Victoria should be allowed to recover from Robert.
“We are aware, of course, of the increasing judicial attention given the individual claims of unmarried cohabitants to jointly accumulated property, and the fact that the majority of courts considering the question have recognized an equitable or contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit consideration. [Citation.] *** Of substаntially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. ***
***
*** The issue, realistically, is whether it is appropriate for this court to grant a legal status to a private arrangement substituting for the institution of marriage sanctioned by the State. The question whether change is needed in the law governing the rights of parties in this delicate area of marriage-like relationships involves evaluations of sociological data and alternatives we believe 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. [Citations.] That belief is reinforced by the fact that judicial recognition of mutual property rights between unmarried cohabitants would, in our opiniоn, clearly violate the [statutory ban on common law marriage].” Hewitt, 77 Ill. 2d at 57-61, 394 N.E.2d at 1207-09.
¶ 20 Thus, Brewer is correct when she argues that the court believed that allowing Victoria to recover from Robert would have contravened public policy and Blumenthal is correct that the court wanted to steer clear of sanctioning a common law marriage.
¶ 21 Hewitt‘s reasoning was subsequently applied in Ayala, in which the court rejected a woman‘s claim for an equitable interest in a home in Warrenville, Illinois, which she and her boyfriend had constructed and resided in for 10 years. Ayala v. Fox, 206 Ill. App. 3d 538, 564 N.E.2d 920 (1990). The woman alleged the couple ” ‘lived together as husband and wife’ ” (Ayala, 206 Ill. App. 3d at 539, 564 N.E.2d at 921), but, citing Hewitt, the court declined to award her an interest in the ” ‘marital’ residence” because doing so was contrary to the public policy expressed by the Illinois legislature to strengthen and preserve marriage. Ayala, 206 Ill. App. 3d at 542, 564 N.E.2d at 922 (citing Hewitt, 77 Ill. 2d at 65-66, 394 N.E.2d at 1211). Hewitt‘s rationale was also pivotal in Costa—a case in which the typical roles were reversed—with a man suing a woman with whom he had lived for 24 years in a ” ‘quasi-marital’ relationship, with ‘all the indicia of a marital type relationship, including love, trust, mutual responsibilities and intimacy.’ ” Costa v. Oliven, 365 Ill. App. 3d 244, 245, 849 N.E.2d 122, 123 (2006). The woman built a successful business while the man stayed home to raise and home-school their child. Costa, 365 Ill. App. 3d at 245, 849 N.E.2d at 123. He alleged that during their years together, she took sole title to almost every asset and possession that was acquired through the couple‘s joint efforts and labor. Costa, 365 Ill. App. 3d at 245, 849 N.E.2d at 123. He argued that dismissing his complaint for failure to state a cause led to harsh
¶ 22 Brewer, however, has identified numerous changes in Illinois law which indicate that public policy has shifted dramatically in the ensuing 35 years and that ongoing application of Hewitt is no longer justified.
¶ 23 Hewitt relied on Illinois‘s former policy of discouraging cohabitation between unmarried parties and disfavoring nonmarital children. The court referred to the “traditional” rule in effect in “all jurisdictions” that enforcing property rights between former cohabitants amounts to enforcing a bargain in which all or part of the consideration has been illicit sexual intercourse. Hewitt, 77 Ill. 2d at 59, 394 N.E.2d at 1208. Since Hewitt was decided, however, Illinois‘s public policies toward nonmarital relationships and nonmarital children have significantly changed.
¶ 24 When Hewitt was decided in 1979, Illinois criminalized cohabitation and the Illinois Supreme Court affirmed a trial judge‘s decision to transfer custody of three children to their father because their mother was openly living with her boyfriend. See Ill. Rev. Stat. 1961, ch. 38, ¶ 11-8 (a “person who cohabits *** commits fornication if the behavior is open and notorious“) (now
¶ 25 By 1983, however, the Illinois Supreme Court acknowledged that a parent‘s cohabitation was not inherently harmful to a child and should not be used to deny custody. In re Marriage of Thompson, 96 Ill. 2d 67, 78, 449 N.E.2d 88, 93 (1983) (stating there was no conclusive presumption in Illinois that when a custodial parent cohabitates, the child is harmed). And, in 1990, the Illinois legislature repealed the language that criminalized cohabitation. See Pub. Act 86-490 (eff. Jan. 1, 1990) (deleting “cohabits” from criminal code). After the statute was changed, the primary basis for the result in Hewitt—that agreements between unmarried parties are not enforceable because their relationship is illicit—ceased to exist.
¶ 26 Shortly after that, the courts addressed a custody challenge based on same-sex cohabitation. A father disapproved of the mother‘s openness to their two children about her same-sex relationship and argued that she should have concealed it from them, instead of answering her daughter‘s questions while her son was present. In re Marriage of R.S., 286 Ill. App. 3d 1046, 1049, 677 N.E.2d 1297, 1299 (1996). The father could not, however, point to any negative consequences (In re Marriage of R.S., 286 Ill. App. 3d at 1053, 677 N.E.2d at 1301) and the evidence showed that the children were thriving in their mother‘s care (In re Marriage of R.S., 286 Ill. App. 3d at 1055, 677 N.E.2d at 1303). The appellate court found that it was error to change custody on the basis of a parent‘s conduct which had no impact on her
¶ 27 Hewitt also relied on policies that disfavored nonmarital children, due to concerns about inheritance rights, custody questions, and the “sociological and psychological effects” of children being in “that type of environment.” Hewitt, 77 Ill. 2d at 58, 394 N.E.2d at 1208. Illinois has since repealed its policies denying recognition and protection to children born to unmarried parents. For instance, Hewitt‘s statement that contracts between unmarried couples are presumptively unenforceable and illegal was based in part on Wallace, an 1882 case in which an agreement between an unmarried father and mother to make their daughter his heir was held void as a verbal agreement in consideration of future illicit cohabitation. Wallace v. Rappleye, 103 Ill. 229, 249 (1882). Today, however, the Illinois Parentage Act of 1984 specifically provides that “[t]he parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents.”
¶ 28 Hewitt‘s discussion of the “traditional” rule that courts do not recognize property claims between unmarried couples was based in part on section 589 of the first version of the Restatement of Contracts. Hewitt, 77 Ill. 2d at 58-59, 394 N.E.2d at 1207-08 (quoting Restatement of Contracts § 589 (1932)). In 1981, the Restatement of Contracts was updated for the first time in 50 years. The current version of the lеgal treatise deleted section 589 and in doing so ceased to define all bargains between people in intimate relationships as illegal contracts. Restatement (Second) of Contracts (1981).
¶ 29 Hewitt was also premised on a section of Corbin on Contracts which has been abandoned. Hewitt, 77 Ill. 2d at 59, 394 N.E.2d at 1208 (citing 6A Arthur L. Corbin, Contracts § 1476 (1962)). That section, entitled “Bargains in Furtherance of Immorality,” gave the example of lending money or supplying goods to a brothel, which is hardly the type of conduct that Brewer alleged in her claims against Blumenthal. 6A Arthur L. Corbin, Contracts § 1476, 623 (1962).
¶ 30 Furthermore, the current version of Corbin on Contracts recognizes that a cohabitating couple is a family and remarks, “The courts’ treatment of contracts entered into by cohabitating parties evolved in the last part of the twentieth century and is clear evidence of how the courts’ view of what might be against public policy varies with changes in society‘s views.” 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). The author of the treatise explains: “It is no coincidence that courts have become more receptive to enforcing contracts between cohabitating parties in an age in which a significant number of male and female couples as well as same gender couples cohabit. The shift in judicial treatment, while significant in effect, is subtle in terms of analytical differences.” 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 205 (Joseph M. Perillo ed., rev. ed. 2003). Courts reasoned that they were furthering the public policies of (1) protecting and encouraging marriage and (2) discouraging any exchange of sexual activity for value. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 207 (Joseph M. Perillo ed., rev. ed. 2003).
¶ 31 In Marvin, the parties cohabited for seven years and she sought, by way of a contract action, to enforce his oral promise that they would share earnings and property for life. The court stated that this type of agreement “even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement.” Marvin, 557 P.2d at 114. Instead, “any [s]everable portion of the contract supported by independent consideration will still be enforced.” Marvin, 557 P.2d at 114. In other words, in reversing a judgment on the pleadings in his favor, the court concluded that nonmarital cohabitants should be treated “as any other persons,” and that contracts between them are valid and enforceable so long as they are not solely and exclusively based on sexual services, i.e., prostitution. Marvin, 557 P.2d at 116. The court emphasized that the institution of marriage is important and worthy of protection, but, nonetheless, Marvin “disconnected the link prior courts had perceived between cohabitation agreements and a public policy against sexual relations for value, stating that to ‘equate the nonmarital relationship of today to [prostitution] is to do violence to an accepted and totally different practice.’ ” 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 213-14 (Joseph M. Perillo ed., rev. ed. 2003) (quoting Marvin, 557 P.2d at 122). Thus, Marvin established the limited principle that cohabitation in itself is not illicit or meretricious and that the “judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed.” Marvin, 557 P.2d at 122. Therefore, according to Corbin on Contracts, the majority of “modern” courts now enforce claims between former cohabitants. 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 217 (Joseph M. Perillo ed., rev. ed. 2003).
“Whereas cases decided [prior to] Marvin may have presumed that the sexual relationship was the substance of the agreement, cases after Marvin seem to presume that the relationship is not the substance of the agreement. These сases are not concerned that the agreement exists in the context of a sexual relationship, but rather are concerned only if the contract‘s ‘primary’ reason is sexual relations for value.” 15 Grace McLane Giesel, Corbin on Contracts § 81.4, 219 (Joseph M. Perillo ed., rev. ed. 2003).
¶ 32 It is also worth noting that Hewitt 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. Hewitt, 77 Ill. 2d at 58, 394 N.E.2d at 1207 (expressing concern that allowing unmarried partners to adjudicate mutual property disputes would “encourage formation of such relationships and weaken marriage as the foundation of our family-based society,” and stating that “[o]f substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage“). The ruling, however, may have the contrary effect—refusing to hear claims between unmarried cohabitants
“[T]his court and the courts of other jurisdictions have, in effect, sometimes said, ‘We will wash our hands of such disputes. The parties should and must be left to their own devices, just where they find themselves.’ *** [S]uch pronouncements seem overly fastidious and a bit fatuous. They are unrealistic and, among other things, ignore the fact that an unannounced (but nevertheless effective and binding) rule of law is inherent in any such terminal statements by a court of law. The unannounced but inherent rule is simply that the party who has title, or in some instances who is in possession, will enjoy the rights of ownership of the property concerned. The rule often operates to the great advantage of the cunning and the shrewd, who wind up with possession of the property, or title to it in thеir names, at the end of a so[-]called meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes, as to the parties involved, an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties.” West v. Knowles, 311 P.2d 689, 692-93 (Wash. 1957) (Finley, J., specially concurring).
¶ 33 Also essential to Hewitt‘s holding was the court‘s conclusion that the legislature‘s then-recent decision to “retain[ ] fault grounds for dissolution of marriage” reflected a public policy to “prevent[ ] the marriage relation from becoming in effect a private contract terminable at will.” Hewitt, 77 Ill. 2d at 63-64, 394 N.E.2d at 1210. The court construed this as “another indication that public policy disfavors private contractual alternatives to marriage.” Hewitt, 77 Ill. 2d at 64, 394 N.E.2d at 1210. The court remarked that California‘s ruling in Marvin was “facilitated” in part by California‘s no-fаult divorce law. Hewitt, 77 Ill. 2d at 61, 394 N.E.2d at 1209. At the time, Illinois was one of only three states retaining fault grounds for the dissolution of marriage. Hewitt, 77 Ill. 2d at 63, 394 N.E.2d at 1210. Five years later, however, the Illinois legislature adopted no-fault divorce, allowing either spouse to terminate a marriage due to “irreconcilable differences.”
¶ 34 We have also considered that the Illinois legislature enacted the Illinois Religious Freedom Protection and Civil Union Act, which provides for unmarried couples to enter into Illinois civil unions and receive all the rights and burdens available to married couples in this jurisdiction.
¶ 35 We acknowledge Hewitt‘s statement that it is the legislature‘s role to declare public policy in the domestic relations field. Hewitt, 77 Ill. 2d at 61, 394 N.E.2d at 1209. After having
¶ 36 The important changes in Illinois law are consistent with changes in other jurisdictions. Based on its survey of modern authority, in 2011, the Restatement (Third) of Restitution and Unjust Enrichment added a new section that specifically allows former cohabitants to bring claims against each other to “prevent unjust enrichment upon the dissolution of the relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28 (2011). That new section provides:
“If two persons have formerly lived together in a relationship resembling marriage, and if one of them owns a specifiс asset to which the other has made substantial, uncompensated contributions in the form of property or services, the person making such contributions has a claim in restitution against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship.” Restatement (Third) of Restitution and Unjust Enrichment § 28 (2011).
¶ 37 Brewer points out that today, nearly every state permits unmarried partners to bring common law claims to resolve their property disputes, even though these same jurisdictions do not permit common law marriage. See, e.g., Wood v. Collins, 812 P.2d 951 (Alaska 1991); Cook v. Cook, 691 P.2d 664 (Ariz. 1984); Bramlett v. Selman, 597 S.W.2d 80 (Ark. 1980); Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Boland v. Catalano, 521 A.2d 142 (Conn. 1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Simmons v. Samulewicz, 304 P.3d 648 (Haw. Ct. App. 2013); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980); Akers v. Stamper, 410 S.W.2d 710 (Ky. Ct. App. 1967); Donovan v. Scuderi, 443 A.2d 121 (Md. Ct. Spec. App. 1982).2 Accordingly, we see no conflict between our conclusions about Brewer‘s claims against her former domestic partner and Illinois‘s ban on common law marriage.
¶ 38 Blumenthal has contended that Brewer is attempting to retroactively redefine what the parties’ relationship was in order to claim the benefits of a legal marriage, much like the petitioner did in In re Estate of Hall, 302 Ill. App. 3d 829, 707 N.E.2d 201 (1998). We disagree. In that probate case, the petitioner, who was never married to her same-sex life partner, sought to be recognized as the “surviving spouse” within the meaning of a section of the Probate Act that entitles surviving spouses to a share of the decedent‘s estate. Estate of Hall, 302 Ill. App. 3d at 832, 707 N.E.2d at 203 (quoting
¶ 39 In light of this conclusion, we do not need to reach appellant Brewer‘s alternative contentions that preventing unmarried domestic partners from pursuing common law claims available to all other persons, solely because they had or have an intimate relatiоnship, violates the Illinois and federal constitutional guarantees of due process and equal protection of the laws. See
¶ 40 Finally, Blumenthal contends that even absent Hewitt, Brewer‘s counterclaims do not factually state the elements necessary for any claims of implied contractual relief. Blumenthal made this argument in the trial court, but the judge did not resolve it. This was error. Accordingly, we vacate the dismissal that was based on Hewitt and remand with directions to consider the parties’ remaining arguments. We have not considered those arguments and have no opinion about them.
¶ 41 Vacated and remanded with directions.