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                                Appellate Court                           Date: 2017.02.15
                                                                          09:26:58 -06'00'




                  In re Marriage of Allen, 2016 IL App (1st) 151620



Appellate Court     In re MARRIAGE OF KEITH M. ALLEN, Petitioner-Appellee, and
Caption             DEBRA DURHAM ALLEN, Respondent-Appellant.



District & No.      First District, Fourth Division
                    Docket Nos. 1-15-1620, 1-15-2146 cons.



Filed               December 29, 2016



Decision Under      Appeal from the Circuit Court of Cook County, No. 13-D-06148; the
Review              Hon. John Thomas Carr, Judge, presiding.



Judgment            Affirmed.



Counsel on          Paul J. Bargiel, of Paul J. Bargiel, P.C., and Alan D. Hoffenberg,
Appeal              Gloria E. Block, and Tiffany M. Alexander, of Hoffenberg & Block,
                    both of Chicago, for appellant.

                    Jay D. Stein and Katya C. Manak, of Stein & Stein, Ltd., of Chicago,
                    for appellee.



Panel               PRESIDING JUSTICE McBRIDE delivered the judgment of the
                    court, with opinion.
                    Justices Gordon and Reyes concurred in the judgment and opinion.
                                                OPINION

¶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 premarital 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 rulings.1
¶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 early 2015.
¶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 codependent
     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

         1
           We filed an opinion disposing of this case on August 16, 2016, but withdrew that filing and issued
     this one solely to correct the names of the parties’ attorneys listed on a cover sheet submitted to the
     Illinois Reporter of Decisions. No changes have been made to our decision.

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     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 appropriate claim(s).
¶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
     Illinois 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
     couple.
¶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 premarital “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, 77 Ill. 2d at 61, 394 N.E.2d at 1209. Such a
     significant change in the “delicate area of marriage-like 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, 77 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, 77 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.’ ” (quoting Ill. Rev. Stat. 1977, ch. 40, ¶ 214)). 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, 77 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


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     married. Hewitt, 77 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, 77 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, 557 P.2d 106 (Cal. 1976) (en banc),
     had been decided and widely publicized. Hewitt, 77 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, 557 P.2d 106. Our
     supreme court considered all of these circumstances before concluding there was “a recent and
     unmistakeable [Illinois] legislative judgment disfavoring the grant of mutual property rights to
     knowingly unmarried cohabitants.” Hewitt, 77 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, 77 Ill. 2d at 64, 394 N.E.2d at 1210. American Federation of
     State, County & Municipal Employees v. Department 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. Department 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



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       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, 77 Ill. 2d at 58-59, 394 N.E.2d at 1208 (quoting Wallace v. Rappleye,
       103 Ill. 229, 249 (1882)). 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, 25, 27, 33, 34, 24 N.E.3d 168 (citing
       Pub. Act 86-490 (eff. Jan. 1, 1990) (deleting “cohabits” from what is now 720 ILCS 5/11-40
       (West 2010)), Pub. Act 83-1372 (eff. July 1, 1985) (creating the predecessor to 750 ILCS 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, 1985) (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) (Illinois 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’s 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, 2014 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 of lending money to supply a brothel. Blumenthal, 2014 IL
       App (1st) 132250, ¶ 29, 24 N.E.3d 168 (citing 6A Arthur Linton Corbin, Corbin on Contracts
       § 1476 (1962)).
¶ 12       Ultimately, we found that Hewitt did not control the question of whether Blumenthal and
       Brewer could bring common-law claims regarding property they accumulated together. The
       couple in Hewitt was an opposite-sex couple who always had the right to marry and take on the


                                                   -5-
       burdens and protections of that legal status, but they had not married. Judicial recognition of
       their relationship would have been inconsistent with Illinois law, particularly the express ban
       on common-law marriage. Hewitt was and is applicable to opposite-sex couples and is not
       affected by our decision in Blumenthal. In contrast to the parties in Hewitt, Blumenthal and
       Brewer did not have the right to marry in Illinois, and our recognition of property claims
       between them in 2014 was consistent with the public policy and legislative changes
       acknowledging same-sex rights that we detailed in our opinion. The couple’s relationship
       ended in 2008 (Blumenthal, 2014 IL App (1st) 132250, ¶ 9, 24 N.E.3d 168), which was before
       Illinois established civil unions as of June 1, 2011 (750 ILCS 75/1 et seq. (West 2012)), and
       legally recognized same-sex marriage in a law that took effect on June 1, 2014 (750 ILCS 80/1
       (West 2014)). We rejected the contention that Brewer was attempting to retroactively define
       the parties’ relationship as a marriage or create a common-law marriage in violation of this
       jurisdiction’s express ban on such relationships. Blumenthal, 2014 IL App (1st) 132250,
       ¶¶ 37-38, 24 N.E.3d 168. We addressed only whether a woman who had been prohibited from
       marrying her domestic partner should also be prohibited from bringing common-law property
       claims against that person. The combination of the women’s inability to marry and the
       extensive indications that Illinois’s public policy favored the recognition of same-sex domestic
       relationships led us to vacate the dismissal of Brewer’s counterclaims on the basis of authority
       regarding an opposite-sex couple and remand with directions to consider the merits of
       Blumenthal’s motion to dismiss on other grounds. Blumenthal, 2014 IL App (1st) 132250,
       ¶¶ 35, 40, 24 N.E.3d 168.
¶ 13        Accordingly, we disagree with Debra’s contention that it was an abuse of discretion for the
       trial court to deny her leave to add common-law claims to her divorce proceedings based on
       her premarital relationship with Keith. Debra and Keith are an opposite-sex couple who had
       the option to marry at any point during the 13 years that preceded their wedding in 2012.
       Hewitt, which rejected similar claims between an unmarried opposite-sex couple, is
       dispositive. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204. Any other holding would contravene
       Illinois public policy, particularly the legislature’s ongoing ban on common-law marriage. 750
       ILCS 5/214 (West 2014). The trial judge’s denial of leave to amend was a sound exercise of his
       discretion. Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 7, 812 N.E.2d
       419, 424 (2004) (when no cause of action can be stated, leave to amend should be denied).
       Furthermore, given that Debra’s proposed claim was deficient, it was not error for the trial
       judge to refuse Debra’s offer of proof. Blazina v. Blazina, 42 Ill. App. 3d 159, 166-67, 356
       N.E.2d 164, 170 (1976) (wife’s deficient complaint did not entitle her to make offer of proof).
       For these reasons, we affirm the trial court’s rulings.

¶ 14      Affirmed.




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