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Blumenthal v. Brewer, 2016 IL 118781 Caption in Supreme JANE E. BLUMENTHAL, Appellant, v. EILEEN M. BREWER, Court: Appellee. Docket No. 118781 Filed August 18, 2016 Rehearing denied October 20, 2016 Decision Under Appeal from the Appellate Court for the First District; heard in that Review court on appeal from the Circuit Court of Cook County; the Hon. Leroy K. Martin, Judge, presiding. Judgment Appellate court judgment vacated in part and reversed in part. Circuit court judgment affirmed. Counsel on Reuben A. Bernick, of Chicago, for appellant. Appeal Angelika Kuehn, of Oak Park, and Catherine Sakimura, Shannon P. Minter, Amy Whalen, and Jaime Huling Delaye, all pro hac vice and all of San Francisco, California, for appellee. Camilla B. Taylor and John A. Knight, of Chicago, and Nancy D. Polikoff, of Washington, D.C., for amici curiae American Civil Liberties Union of Illinois et al. Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in the judgment and opinion. Justice Theis concurred in part and dissented in part, with opinion, joined by Justice Burke. Justice Theis dissented upon denial of rehearing, with opinion, joined by Justice Burke. OPINION ¶1 In this case we are called on to consider the continued viability and applicability of our decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), which held that Illinois public policy, as set forth in this State’s statutory prohibition against common-law marriage, precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties. ¶2 The issue has arisen here in the context of an action brought by Dr. Jane E. Blumenthal for partition of the family home she shared and jointly owned with Judge Eileen M. Brewer. The couple had maintained a long-term, domestic relationship and raised a family together but had never married. Blumenthal sought partition of the residence when the relationship ended and she moved out. ¶3 The partition action itself presented no question under Hewitt. The problem arose when Brewer counterclaimed for various common-law remedies, including sole title to the home as well as an interest in Blumenthal’s ownership share in a medical group so that the couple’s overall assets would be equalized now that the couple had ended their relationship. Blumenthal moved to dismiss, asserting that the various counts of the counterclaim should fail as a matter of law under Hewitt, which rejected a woman’s suit to divide assets she accumulated with a man during a long-term relationship in which they lived together and had three children together but never married. The circuit court agreed, and the counterclaim was dismissed in full. ¶4 The underlying partition action between Blumenthal and Brewer proceeded to final judgment. No appeal was or has been taken from that judgment. While the partition proceeding was following its course, however, Brewer pursued an appeal of the dismissal of her counterclaim pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), arguing that Hewitt should be rejected and should not bar any of the relief she sought. ¶5 The appellate court agreed with Brewer’s position. It rebuffed Hewitt’s holding as outmoded and ill-considered, undertook its own public policy analysis, and held that the public policy of prohibiting unmarried domestic partners from bringing common-law claims against one another no longer exists in current law. Accordingly, it vacated the circuit court’s dismissal of Brewer’s counterclaim and remanded the matter to the circuit court to consider additional arguments raised by the parties. 2014 IL App (1st) 132250, ¶ 40.

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¶6 This court allowed Blumenthal’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). We also granted the American Civil Liberties Union of Illinois and Lambda Legal Defense and Education Fund, Inc., leave to file a friend of the court brief in support of Brewer. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For the reasons that follow, we now vacate in part and reverse in part the judgment of the appellate court and affirm the judgment of the circuit court.

¶7 BACKGROUND ¶8 This litigation began in 2010 when Blumenthal filed her verified complaint for partition pursuant to section 17-101 of the Code of Civil Procedure (735 ILCS 5/17-101 et seq. (West 2012)) in the circuit court of Cook County. The portion of the partition action relevant here was directed at the parties’ South Kimbark residence (hereinafter sometimes referred to as the Chicago home), which Blumenthal jointly owned with Brewer, who had been her domestic partner since approximately 1981. Blumenthal’s complaint requested that “a fair division and partition of [the] property be made between the parties *** according to their respective rights and interests.” The complaint further requested, in the alternative, that if the property could not be divided without manifest injustice to the parties in interest, then it should be sold by or under direction of the court, with the proceeds of the sale to be divided among the parties “according to their respective rights or interests in such proceeds as ascertained and declared” by the court. ¶9 Brewer’s counterclaim, which is the focus of this appeal, was premised on the couple’s domestic relationship, which Brewer characterized as “identical in every essential way to that of a married couple.” As finally amended, the counterclaim contained five counts. Counts I, II, IV, and V all pertained directly to the disposition of the parties’ home in the underlying partition action. Specifically, they sought to guide the court with respect to how the party’s respective rights and interests in that property should be ascertained and valued and how the property should be divided. Count I sought imposition of a constructive trust based on unjust enrichment. Count II argued that the house should be divided based on principles of equitable division. Count IV asserted that in allocating the value of the house, the court should factor in amounts expended by Brewer to maintain it after a certain date. Invoking principles of quantum meruit, count V claimed that apportionment of the home’s value should take into account the value of Brewer’s time in making sure the property was adequately secured, maintained, and repaired. Count III sought a constructive trust over the annual net earnings or the sale of Blumenthal’s share of her medical practice, or in the alternative, restitution of funds that Blumenthal used from the couple’s joint account to purchase the medical practice. ¶ 10 In the circuit court, Blumenthal successfully argued that all counts of Brewer’s counterclaim were barred as a matter of law by this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). As noted earlier, Hewitt held that Illinois public policy, as set forth in this state’s statutory prohibition against common-law marriage, precludes knowingly unmarried cohabitants from bringing claims against one another to enforce mutual property rights where those rights are rooted in a marriage-like relationship between the parties. ¶ 11 On appeal to the appellate court, Brewer contended that dramatic shifts in public policy had rendered this court’s decision in Hewitt obsolete and that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today. Brewer contended that at

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the time Hewitt was decided, it was public policy to treat unmarried relationships as illicit but in the decades since Hewitt, the Illinois legislature had repealed the criminal prohibition on nonmarital cohabitation, prohibited differential treatment of marital and nonmarital children, adopted no-fault divorce, established civil unions for both opposite-sex and same-sex partners, and extended other significant protections to nonmarital families. Thus, Brewer maintained that in light of these profound changes, Hewitt’s restriction on common-law claims being brought by unmarried partners has been implicitly overruled and that continued application of Hewitt would directly contravene the current policy of this state. ¶ 12 Blumenthal responded 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 (Marriage and Dissolution Act) (750 ILCS 5/214 (West 2010) (“Common law marriages contracted in this State after June 30, 1905 are invalid.”)). Blumenthal contended that Hewitt remains good law because it gives effect to Illinois’s ongoing public policy that individuals acting privately by themselves cannot create a marriage relationship and that the government must be involved in the creation of that bond. In Blumenthal’s view, reversing the circuit court’s dismissal order would require the appellate court to overrule Hewitt and its progeny, something it had no authority to do, and, in effect, resurrect common-law marriage in Illinois. ¶ 13 In a detailed discussion, the appellate court found some merit in both parties’ arguments but ultimately agreed with Brewer’s claims, finding that the primary basis for the result in Hewitt “ceased to exist.” 2014 IL App (1st) 132250, ¶¶ 18, 25. To support its claim that Hewitt is now obsolete, the appellate court adopted Brewer’s list of post-Hewitt policy changes and laws that relate to property rights of married or unmarried couples. Id. ¶¶ 30, 33-34. In particular, the appellate court gave considerable weight to the fact that in the decades since Hewitt was decided, the Illinois legislature has repealed the criminal prohibition on nonmarital cohabitation, prohibited differential treatment of marital and nonmarital children, adopted no-fault divorce, established civil unions for both opposite-sex and same-sex partners, and extended other significant protections to nonmarital families. Id. ¶¶ 23-27, 33-34. ¶ 14 The appellate court also disagreed with the policy finding in Hewitt, arguing that Hewitt “may have the contrary effect [of discouraging cohabitation and encouraging marriage because] refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.” Id. ¶ 32. Thus, the appellate court believed that “[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.” Id. ¶ 15 Finding that Hewitt’s common-law ban was misplaced, the appellate court determined that Brewer’s counterclaim was not an attempt to retroactively redefine the parties’ relation in order to claim the benefits of a legal marriage, but rather a claim to have similar common-law property rights as others that were not in a cohabiting, unmarried relationship. Id. ¶ 38. Accordingly, the appellate court vacated the circuit court’s Hewitt-based dismissal of the counterclaim and remanded the matter to the circuit court to consider additional arguments raised by the parties. Id. ¶ 40.

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¶ 16 We will discuss the remaining relevant facts of this case within our discussion.

¶ 17 ANALYSIS ¶ 18 Blumenthal’s central argument on this appeal is that the circuit court’s order dismissing Brewer’s counterclaim was proper and should not have been disturbed because it was mandated by this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), and the prohibition against common-law marriage set forth in section 214 of the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)). Blumenthal asserts that in reversing the circuit court and remanding for further proceedings, the appellate court misread Hewitt, improperly reinstated common-law marriage in contravention of Illinois law, and usurped public policy determinations that properly belong to the legislature. Blumenthal also criticizes the appellate court’s decision for improperly extending principles of unjust enrichment. ¶ 19 In undertaking our review, we begin by noting that the circuit court’s rejection of Brewer’s counterclaim was made in the context of a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Such motions challenge the legal sufficiency of a pleading based on defects apparent on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. In ruling on a section 2-615 motion, a court must accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Beacham v. Walker, 231 Ill. 2d 51, 57-58 (2008). It is well understood that the critical inquiry is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted. Such orders granting motions to dismiss under section 2-615 are reviewed de novo. Bonhomme v. St. James, 2012 IL 112393, ¶ 34.

¶ 20 Counterclaim Counts I, II, IV, and V ¶ 21 As a preliminary matter, Blumenthal contends the issue of whether counts I, II, IV, and V of Brewer’s counterclaim are viable under Hewitt should not have been addressed by the appellate court and is not properly before us. We agree. As to those four counts, the appellate court’s judgment is fatally flawed for two fundamental reasons unrelated to Hewitt. ¶ 22 First, the appellate court lacked jurisdiction to entertain the appeal from dismissal of those counts. The Illinois Constitution confers on the appellate court jurisdiction to hear appeals from all final judgments entered in the circuit court. See Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court”). The constitution also grants this court the right to “provide by rule for appeals to the Appellate Court from other than final judgments.” Id. Accordingly, absent a supreme court rule, the appellate court is without jurisdiction to review judgments, orders, or decrees that are not final. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9. ¶ 23 The ruling at issue here was brought before the appellate court based on Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), which authorizes appeals from final judgments that do not dispose of an entire proceeding “if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” An order or judgment is considered to be final and appealable for purposes of this rule if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on

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the entire controversy or a separate part thereof. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008). The purpose of the rule is “ ‘to discourage piecemeal appeals in the absence of a just reason and to remove the uncertainty which existed when a final judgment was entered on fewer than all of the matters in controversy.’ ” Id. (quoting Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990)). ¶ 24 Although the circuit court in this case made the written finding required by Rule 304(a), that finding is not dispositive. By its terms, Rule 304(a) applies only to final judgments or orders. The special finding contemplated by the rule will make a final order appealable, but it can have no effect on a nonfinal order. Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987). If the order is in fact not final, inclusion of the special finding in the trial court’s order cannot confer appellate jurisdiction. EMC Mortgage Corp., 2012 IL 113419, ¶ 14. ¶ 25 The circuit court’s action dismissing counts I, II, IV, and V of Brewer’s counterclaim did not qualify as a final judgment or order. As mentioned above, to be considered final and appealable for purposes of Rule 304(a), a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court only has to proceed with execution of the judgment. Kellerman, 119 Ill. 2d at 115. While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. Id. The circuit court’s dismissal of counts I, II, IV, and V did not meet that requirement. ¶ 26 Counts I, II, IV, and V arose from the same set of operative facts and sought precisely the same thing as the underlying cause of action asserted by Blumenthal: division of the value of the parties’ Chicago home. Rather than being distinct and separate from Blumenthal’s action, these counts merely advanced different analytical approaches for determining how the home or its proceeds should be allocated between the parties. They were, in effect, different iterations of the very same claim. When they were dismissed, the ultimate question—how the value of the residence should be split—remained unresolved. The dismissal served only to narrow the criteria applicable to that decision. ¶ 27 Although we have found no cases directly on point, our appellate court has recognized that where one claim based on the same operative facts is stated differently in multiple counts, the dismissal of fewer than all counts is not a final judgment as to any of the party’s claims as required by Rule 304(a). See Davis v. Loftus, 334 Ill. App. 3d 761, 766 (2002). Similarly, we have held that where an order disposes only of certain issues relating to the same basic claim, such a ruling is not subject to review under Rule 304(a). To the contrary, permitting separate appeals of such orders promotes precisely the type of piecemeal appeals Rule 304(a) was designed to discourage. See In re Marriage of Leopando, 96 Ill. 2d 114, 119-20 (1983). Based on this reasoning, the portion of the circuit court’s order dismissing counts I, II, IV, and V of Brewer’s counterclaim was not appealable under Rule 304(a). ¶ 28 Second, even if the appellate court had jurisdiction to review the dismissal of counts I, II, IV, and V, its resolution of the appeal was improper and cannot stand. As discussed, the appellate court’s conclusion that the circuit court erred in dismissing those counts was predicated on its repudiation of this court’s decision in Hewitt v. Hewitt, 77 Ill. 2d 49 (1979). The appellate court’s rejection of Hewitt was tantamount to overruling that decision. However, overruling a decision by the Illinois Supreme Court is an action the appellate court

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has no authority to take. People v. Artis, 232 Ill. 2d 156, 164 (2009) (“The appellate court lacks authority to overrule decisions of this court, which are binding on all lower courts.”). While the appellate court was free to question Hewitt and recommend that we revisit our holding in the case, under the judicial system created by the Illinois Constitution, it could not, itself, declare that one of our decisions was no longer controlling authority. As we have recently explained, “The judicial article of the Illinois Constitution of 1970, like its predecessor in the constitution of 1870, creates a three-tiered court system, with the appellate court sitting in review of the circuit courts, and the supreme court sitting in review of the appellate and circuit courts. Ill. Const. 1970, art. VI. A fundamental principle flows from this hierarchical structure: ‘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.’ ” (Emphasis in original.) Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38 (quoting Agricultural Transportation Ass’n v. Carpentier, 2 Ill. 2d 19, 27 (1953)). ¶ 29 Accordingly, even if the appellate court disagreed with Hewitt, it remained bound by that decision and should have left it to this court to reassess the decision’s validity. ¶ 30 Because the appellate court’s reversal of the dismissal of counts I, II, IV, and V of Brewer’s counterclaim was predicated on the exercise of jurisdiction it did not possess and the repudiation of legal precedent it had no authority to overrule, we would normally be inclined to simply vacate its ruling as to those counts and remand to the circuit court for further proceedings. In this case, however, a remand would serve no purpose. That is so because while Brewer was pursuing this appeal, she and Blumenthal continued to litigate the underlying partition action. The matter of how the home should be divided has now been finally determined by the circuit court. ¶ 31 Initially, Brewer recognized that resolution of the underlying partition action could affect her counterclaim and therefore moved for a stay of the proceedings on the partition until appeal of the dismissal of her counterclaim was resolved. Although the circuit court denied the stay, it indicated that the question of a stay could be revisited if Brewer posted an appeal bond. From the record, it appears that Brewer elected not to exercise that option. Instead, the partition action proceeded to trial on the merits in August 2014. ¶ 32 The partition trial was conducted over a three-day period. In the course of the trial, testimony was presented regarding when the home was purchased, who contributed to the earnest money and down payment for the purchase, which of the parties and their children lived in the home and when, the cost of upkeep and repairs and who paid those costs, how and when certain other personal and real property was divided by the parties, the disposition of inheritances Brewer received from her parents, and how Brewer and Blumenthal handled their respective finances, including joint investment accounts. The court heard the circumstances of the parties’ breakup; listened to analyses of real estate values and market conditions in the neighborhood; and received evidence regarding the parties’ income taxes and the source and amounts of mortgage payments, insurance, utilities and taxes on the property. The circuit court then took the matter under advisement.

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¶ 33 On October 9, 2014, the circuit court reconvened to share its findings with the parties. After dealing with some minor issues regarding various items of personal property, including photographs and skis, the court turned to the issue of the home. It concluded that the parties had held the property as tenants in common; that its current market value was $1 million; that Blumenthal had paid the earnest money and down payment for the purchase of the home, an amount which totaled $235,000; and that Blumenthal was entitled to return of that sum. ¶ 34 Subtracting the $235,000 from the home’s $1 million value left $765,000. The court held that this sum should be split evenly between the parties, giving each of them a claim to $382,500 of the home’s value. The court further held, however, that this distribution was subject to various adjustments. Noting that this had been a romantic domestic relationship that had gone sour, the court rejected Blumenthal’s argument that Brewer should have to pay her rent for the time she remained in the home after Blumenthal decided to move out. At the same time, the court thought it inappropriate to compensate Brewer for the value of the work she did on the home herself. On the other hand, the court opined that Brewer should receive credits for mortgage payments, taxes, and insurance, as well as for various maintenance and repair expenses incurred by her that were necessary for the home’s proper upkeep. The court computed these credits to total $151,700.55, which it believed should be deducted from Blumenthal’s $382,500 share of the home’s net value after subtraction of the down payment and earnest money, and added to Brewer’s share. This left Blumenthal with $230,799.45 of what the court referred to as the home’s “equity” and Brewer with $534,200.55. Finally, the court indicated that it would give Brewer the option of buying out Blumenthal’s share of the Chicago home. If Brewer declined to exercise that option, the property would be put on the market and sold. A written order to that effect was entered by the court after the hearing concluded. ¶ 35 Neither party appealed. Instead, Brewer elected to buy out Blumenthal’s share in accordance with the valuations made by the circuit court. According to public records of which we can take judicial notice, Blumenthal and Blumenthal’s civil union partner issued a quitclaim deed to Brewer in January 2015. Brewer subsequently conveyed her interest in the home to a trust. ¶ 36 Because no appeal was taken from the court’s judgment setting the value of the home and allocating the home’s equity between the parties and because the property has now been conveyed in a manner chosen by the parties in accordance with the court’s judgment, Brewer’s arguments regarding the legal sufficiency of counts I, II, IV, and V of her counterclaims have been rendered moot. A matter becomes moot on review when, because of events occurring after the appeal was filed, there is no longer an actual controversy or the reviewing court cannot grant the complaining party effectual relief. In re Marriage of Donald B., 2014 IL 115463, ¶ 23. Such is the case here. ¶ 37 Whatever our view might be of the merits of Brewer’s legal theories on which counts I, II, IV, and V of her counterclaim are based, the outcome of the case would not change. As noted earlier, those theories were all directed at how the value of the home should be divided. That division has now been made and is final. Brewer obtained financing, the trust she established now owns the house, and Blumenthal has been paid for her interest in it. The deal is done. The object of the controversy has been settled.

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¶ 38 Brewer has suggested that the matter is not moot because if we ruled in her favor, the circuit court could undo its final judgment, set aside the partition, and consider anew how the value of the home should be divided. Pressed at oral arguments, Brewer did not explain (and we still do not see) how this could possibly be so. ¶ 39 The finality of the judgment in the underlying partition action was not affected by Brewer’s election to seek review of the dismissal of her counterclaim by means of Rule 304(a). Had Brewer wanted to avoid that result and defer final resolution of how the value of the home should be allocated until the viability of her alternate theories was resolved, she could have immediately appealed the circuit court’s denial of her motion to stay the underlying case. Under established Illinois law, the denial of a stay of trial court proceedings is treated as a denial of a request for a preliminary injunction and is appealable as a matter of right under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010). See, e.g., Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶¶ 32-33; Estate of Bass v. Katten, 375 Ill. App. 3d 62, 69-70 (2007). ¶ 40 In addition, and more importantly, if Brewer believed that the circuit court’s subsequent ruling disposing of the home was legally deficient for failing to take into account the theories advanced in her counterclaim, she could have appealed the circuit court’s final judgment in the underlying case pursuant to Illinois Supreme Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. ^[1], 1994); R. 303 (eff. Jan. ^[1], 2015)). She did not do that either. Rather, she accepted the circuit court’s partition ruling, bought out Blumenthal’s share of the property for the amount specified by the court, and continued to reside there, as the court gave her the option of doing. ¶ 41 Having pursued this strategy, Brewer would be foreclosed from pursuing counts I, II, IV, and V of her counterclaim even if we agreed that those counts should not have been dismissed based on Hewitt. Because the partition action proceeded to final judgment and no appeal from that judgment was taken, reinstatement of counts I, II, IV, and V of the counterclaim would be tantamount to permitting Brewer to proceed with a new and separate action with respect to division of the home’s value. That is impermissible. ¶ 42 Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a subsequent suit between the parties involving the same cause of action. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (1998). A cause of action is defined by the facts which give rise to a right to relief. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 10. “ ‘[S]eparate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief.’ ” Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 46 (quoting River Park, Inc. v. City of Highland Park, 184 Ill. 2d at 311). These principles extend to claims arising from the same operative facts as the plaintiff’s claim that were or could have been raised by the defendant, and it has been held that res judicata bars a subsequent action if successful prosecution of that action would, in effect, nullify the judgment entered in the original action. See Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 530-31 (2005). That, of course, is precisely what would happen if the appellate court’s reinstatement of counts I, II, IV, and V were upheld by this court and Brewer ultimately prevailed.

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¶ 43 Moreover, even if resuscitation of counts I, II, IV, and V of the counterclaim were viewed as a mere continuation of the same proceeding rather than commencement of a new action, revisiting the merits of those counts would still be foreclosed. As previously indicated, Brewer could have sought an immediate appeal of the circuit court’s denial of her request for a stay of the partition action or filed an appeal from the circuit court’s judgment finally disposing of the partition action on the merits. She did neither. Instead, Brewer permitted that judgment to stand unchallenged, accepted the court’s division of the home’s value, and purchased Blumenthal’s interest in the property in accordance with the circuit court’s ruling. Where, as here, a party fails to challenge a legal decision when it has the opportunity to do so, that decision, as a general rule, becomes “the law of the case for future stages of the same litigation, and [that party is] deemed to have waived the right to challenge that decision at a later time. [Citations.]” (Internal quotation marks omitted.) Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540, 547 (1997). The law-of-the-case doctrine bars relitigation of issues of both law and fact. Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8. Similarly, it is well established that if a party proceeds to trial and voluntarily accepts the benefit of a judgment in his or her favor with respect to the disposition of property, that party is precluded from later challenging that judgment, including sufficiency of the property’s valuation. See County of Cook v. Malysa, 39 Ill. 2d 376, 379 (1968). Brewer, therefore, is precluded from further litigating the disposition of the parties’ home. Accordingly, the appellate court should not have entertained her appeal from the dismissal of counts I, II, IV, and V of her counterclaim, and its ruling as to the viability of those counts must be vacated.

¶ 44 Counterclaim Count III ¶ 45 Unlike counts I, II, IV, and V, count III of Brewer’s counterclaim asserts a separate and distinct claim that does not concern the partition or value of the Chicago home. Instead, count III requests that the court impose a “Constructive Trust on Blumenthal’s Medical Practice to Remedy Unjust Enrichment Or, in the Alternative, for Restitution.” Therefore, the portion of the circuit court’s order dismissing count III of Brewer’s counterclaim was final and appealable under Rule 304(a). See Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987). ¶ 46 According to count III, “[t]hroughout the course of their relationship, Brewer and Blumenthal commingled their savings and investments.” It was the funds from this joint account that went toward the purchase of Blumenthal’s ownership interest in her medical practice group, Gynecologic Specialists of Northwestern, S.C. (GSN). Brewer contends that she allowed Blumenthal to use their joint account for this investment with the reasonable understanding and expectation that she, Brewer, would continue to benefit from the earnings derived from GSN. Once the couple ended their relationship in 2008, these financial benefits ceased, and Blumenthal retained the entire interest in the medical group, thereby keeping all of the earnings from the medical practice. Based on these allegations, Brewer claims that Blumenthal is unjustly enriched. Therefore, Brewer requests that this court create a constructive trust from Blumenthal’s share of the annual net earnings of the medical group or any portion of the proceeds from any sale of Blumenthal’s interest in the group that was attributable to Brewer’s earnings or inheritance during their relationship and that this court award her the annual net earnings of GSN attributable to her as well as award her this portion of the proceeds from any sale of Blumenthal’s interest in GSN.

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¶ 47 “ ‘A constructive trust is one raised by operation of law as distinguished from a trust created by express agreement between the settlor and the trustee.’ ” Suttles v. Vogel, 126 Ill. 2d 186, 193 (1988) (quoting Perry v. Wyeth, 25 Ill. 2d 250, 253 (1962)). A constructive trust is an equitable remedy, which may be imposed where the person in possession of the property would be unjustly enriched if he or she were permitted to retain that property. In re Liquidation of Security Casualty Co., 127 Ill. 2d 434, 447 (1989). The sole duty of the constructive trustee is to transfer title and possession of the wrongfully acquired property to the beneficiary. Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 299 (2000). ¶ 48 Blumenthal argues that the Medical Corporation Act (805 ILCS 15/1 et seq. (West 2010)) and the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)) prohibit Brewer, a licensed attorney, from being a beneficiary of a constructive trust created on her ownership interest in GSN, unless Brewer is also a licensed doctor. Under the Medical Corporation Act, anyone who is not licensed pursuant to the Medical Practice Act is prohibited from having any part in the “ownership, management, or control” of a medical corporation. 805 ILCS 15/13 (West 2010). In addition, fee-splitting arrangements between a licensed medical doctor and a nonlicensed medical doctor are likewise prohibited under the Medical Practice Act. 225 ILCS 60/22.2 (West 2010). ¶ 49 Brewer’s counterclaim explains that GSN is an Illinois corporation that characterizes itself as an all-woman practice of experienced physicians dedicated to providing comprehensive health care to women. Blumenthal is licensed under the Medical Corporation Act as a medical doctor, which allowed her to be one of the six owners of GSN. The statutory rule is clear: As an owner of the medical group, Blumenthal is prohibited from transferring any of her ownership interest or any proceeds from a sale of her interest in GSN to a nonlicensed medical doctor. These prohibitions are similar to the prohibitions of a lawyer forming a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law (Ill. R. Prof’l Conduct (2010) R. 5.4(b) (eff. Jan. ^[1], 2010)) or the prohibition of sharing legal fees with a nonlawyer (Ill. R. Prof’l Conduct (2010) R. 5.4(a) (eff. Jan. ^[1], 2010)). Because Brewer is not a licensed medical doctor, transferring title and possession of Blumenthal’s interest in GSN through a constructive trust to Brewer is unattainable due to the prohibitions of the Medical Corporation Act and the Medical Practice Act. ¶ 50 In the alternative, Brewer requests the common-law remedy of restitution for an undisclosed amount of funds she deposited into the couple’s joint account since the year 2000, which was used to purchase Blumenthal’s ownership interest in GSN. Brewer raises the same arguments she made before the appellate court, which ruled in her favor, permitting her to bring common-law remedies against Blumenthal. Therefore, Brewer requests this court uphold the appellate court’s review of the longstanding public policy in Illinois barring unmarried, cohabiting partners from seeking common-law property rights if the claims are not independent from the parties’ relationship. ¶ 51 To understand Illinois’s public policy concerning the common-law rights of unmarried, cohabiting couples, we must begin with a review of the history in Illinois concerning the matter—a history the parties and amici have extensively outlined in their briefs. One thing is certain as argued in the briefs: Illinois’s statutory prohibition of common-law marriage and

- 11 - this court’s prior decision in Hewitt are imperative to resolving the issue before this court. We therefore turn to that matter. ¶ 52 Common-law marriages are invalid in Illinois and have been since the early part of the last century. The prohibition is statutory and unequivocal. Section 214 of the Marriage and Dissolution Act (750 ILCS 5/214 (West 2010)) expressly provides that “[c]ommon law marriages contracted in this State after June 30, 1905 are invalid.” ¶ 53 Prior to this legislative enactment, the doctrine of common-law marriage was a judicially sanctioned alternative to formal marriage. People v. Shaw, 259 Ill. 544, 548 (1913). In Hewitt, decided in 1979, this court undertook an extensive and in-depth public policy analysis with respect to the statutory change by which common-law marriages were abolished. ¶ 54 At issue in Hewitt was whether public policy barred the granting of common-law relief to plaintiff Victoria Hewitt, who was in a cohabiting, marriage-like relationship with the defendant, Robert Hewitt. Hewitt, 77 Ill. 2d at 52. Victoria and Robert commenced their relationship in 1960, while they were attending college in Iowa. Id. at 53. After Victoria became pregnant, Robert proclaimed to Victoria “that they were husband and wife and would live as such, no formal ceremony being necessary, and that he would ‘share his life, his future, his earnings and his property’ with her.” Id. The parties immediately began holding themselves out as a married couple. Id. Relying on Robert’s promises, Victoria began to assist in paying for Robert’s education and establishing a dental practice, helping him earn more than $80,000 annually and accumulate large amounts of property, owned either jointly with Victoria or separately. Id. at 53-54. ¶ 55 After several years together, the relationship became sour, and Victoria filed for divorce, which the circuit court dismissed because the parties were never married. Id. at 52. Victoria filed an amended complaint that sought an equitable one-half share of the parties’ assets, based upon theories of implied contract, constructive trust, and unjust enrichment, which resulted from their “family relationship.” Id. at 53. The circuit court dismissed the amended complaint, “finding that Illinois law and public policy require such claims to be based on a valid marriage.” Id. at 54. ¶ 56 The appellate court reversed, giving considerable weight to the fact that the parties had held themselves out as a couple for over 15 years and lived “a most conventional, respectable and ordinary family life.” Hewitt v. Hewitt, 62 Ill. App. 3d 861, 863 (1978). The appellate court noted that the “single flaw” of Robert’s and Victoria’s relationship was the lack of a valid marriage. Id. The appellate court concluded that Victoria should not be denied relief based on public policy grounds. Id. at 867, 869. Adopting the reasoning of the “widely publicized” case of Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), the appellate court held that the amended complaint stated a cause of action on an express oral contract. Hewitt, 62 Ill. App. at 868. In Marvin, Michelle Marvin and actor Lee Marvin cohabited for seven years before Michelle sought, by way of a contract action, to enforce Lee’s oral promise that they would share earnings and property for life. Marvin, 557 P.2d at 110. In resolving her claim for one-half the property accumulated in defendant’s name during that period, the California court held 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 - 12 - exclusively based on sexual services, i.e., prostitution. Id. at 116. Consequently, the appellate court reversed and remanded the case. Hewitt, 62 Ill. App. 3d at 869. ¶ 57 On appeal to this court, we unanimously reversed the appellate court’s decision. Hewitt, 77 Ill. 2d at 66. Addressing the issue of whether the granting of common-law relief to the plaintiff, an unmarried cohabitant, was barred by public policy, we began by acknowledging that: “The issue of unmarried cohabitants’ mutual property rights *** cannot appropriately be characterized solely in terms of contract law, nor is it limited to considerations of equity or fairness as between the parties to such relationships. There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage.” Id. at 57-58. ¶ 58 In our view, the legislature intended marriage to be the only legally protected family relationship under Illinois law, and permitting unmarried partners to enforce mutual property rights might “encourage formation of such relationships and weaken marriage as the foundation of our family-based society.” Id. at 58. This court was concerned that permitting such claims might raise questions about support, inheritance rights, and custody of nonmarital children.^[1] Id. We noted that the situation between the unmarried couple was “not the kind of arm’s length bargain envisioned by traditional contract principles, but an intimate arrangement of a fundamentally different kind.” Id. at 61. Because the question concerned changing the law governing the rights of parties in the delicate area of marriage-like relationships, which involves evaluations of sociological data and alternatives, this court decided that the underlying issue 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. Id. Accordingly, this court held that Victoria’s claims were “unenforceable for the reason that they contravene the public policy, implicit in the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants.” Id. at 66. We reasoned that an opposite outcome of judicially recognizing mutual property rights between knowingly unmarried cohabitants—where the claim is based upon or intimately related to the cohabitation of the parties—would effectively reinstate common-law marriage and violate the public policy of this state since 1905, when the legislature abolished common-law marriage. Id. at 65-66. ¶ 59 Notably, based on our understanding of the public policy in Illinois and the legislative prohibition of common-law marriage, we emphatically rejected the holding in Marvin on