Mower v. Mower

2023 UT App 10

THE UTAH COURT OF APPEALS

LIDIA V. MOWER,
Appellant,
v.
THOMAS W. MOWER,
Appellee.

Opinion
No. 20210101-CA
Filed January 20, 2023

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 124100133

Cassie J. Medura and Jarrod H. Jennings,
Attorneys for Appellant
Douglas B. Thayer and Mark R. Nelson,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

ORME, Judge:

¶1 Thomas E. Mower and Lidia V. Mower stipulated to a
bifurcated divorce in which the district court dissolved their
marriage but reserved for trial all other issues, which were the
subject of contentious litigation. Thomas died after the trial
concluded but shortly before the court issued its ruling that would
have resolved all but one issue. As a result of Thomas’s death, the
court held that it no longer had jurisdiction over the divorce action
 Mower v. Mower

and closed the case, indicating that Lidia could pursue any
surviving claims in probate court against Thomas’s estate. 1

¶2 On appeal, Lidia argues that the court erroneously
concluded that the unresolved claims in the divorce action abated
on Thomas’s death. Thomas’s son, Thomas W. Mower (Thomas
Jr.), in his capacity as special administrator of the Estate of
Thomas E. Mower, by special appearance represents his late
father’s interests on appeal. See generally Utah R. App. P. 38(a), (c).
We hold that under the facts of this case, Thomas’s death did not
deprive the court of jurisdiction to resolve most of the unresolved
claims. Accordingly, we reverse and remand.

BACKGROUND

¶3 Thomas and Lidia married in 2001. Lidia initiated divorce
proceedings in 2012. The ensuing litigation was very contentious
and involved complex issues including grounds for divorce, a
request for a retroactive increase in alimony, 2 custody of and
parent-time with their child born during the marriage, child
support, the potential equitable division of a large estate that was
arguably “worth upwards of $150,000,000,” 3 and attorney fees.

1. Because the individuals share the same last name, we follow
our usual practice of referring to them by their first names, with
no disrespect intended by the apparent informality.

2. Lidia sought a retroactive increase of alimony for 51 months,
which represented the span between entry of a temporary order
awarding her alimony and her remarriage.

3. This included the determination of what portion of the large
estate constituted marital property and what portion constituted
Thomas’s separate property.

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¶4 In May 2013, on the parties’ stipulation, the district court
entered a bifurcated decree of divorce, dissolving the parties’
marriage but reserving all other issues for trial. The court ruled
that it would “value the estate as of the date this divorce decree
enters rather than at the day of trial” and that “[a]ll other issues of
dispute will remain open for further resolution by the Court.”
Following entry of the bifurcated divorce decree, both parties
remarried.

¶5 Four and a half years later, the bench trial in this case,
which “included voluminous exhibits and witness testimony,”
was held over the course of sixteen days between November 2017
and December 2018. Although the matter came under advisement
awaiting a final ruling in January 2020, the district court “held
status conferences to work through issues as they arose,” with the
most recent one being held in July 2020.

¶6 Thomas passed away on August 2, 2020. The following
day, the district court issued a ruling stating it would close the
divorce action in twenty days unless it received a valid objection
and a supporting memorandum. Lidia objected, filing a Motion
for Entry of Final Property Division and a Rule 25 Motion to
Substitute Party. Regarding the latter motion, Lidia requested that
“the personal representative or other appropriate party” be
substituted in the divorce action “to allow the Court to issue a
final ruling regarding property settlement and all outstanding
financial issues in this case.” See generally Utah R. Civ. P. 25(a)(1)
(“If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties.”). Thomas’s
counsel opposed Lidia’s objection and motions. 4

4. Thomas’s counsel continued to represent Thomas’s interests
immediately after his death pursuant to Stoddard v. Smith, 2001 UT
47, 27 P.3d 546. See id. ¶ 11 (“An attorney has an ethical obligation
(continued…)

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¶7 In February 2021, following argument on the issues, the
court overruled Lidia’s objection and denied her motions. The
court first stated that shortly before Thomas’s death, it had
completed “its findings of fact and was prepared to issue a ruling
reserving only a single outstanding issue that [it] intended to
invite the parties to address via supplemental briefing.” Despite
this, following a lengthy discussion of Porenta v. Porenta, 2017 UT
78, 416 P.3d 487, the court held that its prior orders regarding
child support, parent-time, and custody abated upon Thomas’s
death and that Lidia, as the surviving party in a bifurcated
divorce, was required “to pursue unresolved equitable claims to
marital property before a probate court.” A few months later, the
court issued a Final Order, stating, “Due to the untimely death of
[Thomas], this court no longer has jurisdiction over this matter
and this matter is closed.”

¶8 Lidia appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Lidia argues that the court erred in closing the divorce
action on the ground that Thomas’s death caused it to lose
jurisdiction. 5 “We review a court’s determination of jurisdiction

to take the necessary steps to protect a deceased client’s interests
immediately following the client’s death[.]”).

5. Thomas Jr. asserts that the district court did not actually rule
that it lost jurisdiction over the divorce action. Instead, he
suggests that the court simply exercised its “inherent equitable
discretion in deciding to leave [Lidia] to pursue those claims in
probate court.” But although the court’s initial ruling did not
invoke the specific term “jurisdiction,” it nonetheless concluded,
with our emphasis, that “Utah precedent requires a surviving
party in a bifurcated divorce to pursue unresolved equitable
(continued…)

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for correctness, granting no deference to the lower court.” In re
S.W., 2017 UT 37, ¶ 7, 424 P.3d 7.

ANALYSIS

¶10 In concluding that Thomas’s death caused it to lose
jurisdiction over the divorce action, the district court relied
heavily on our Supreme Court’s opinion in Porenta v. Porenta, 2017
UT 78, 416 P.3d 487. In that case, during the pendency of a divorce
action, the husband executed a quitclaim deed transferring his
interest in the marital home to his mother in an effort to prevent
the home from being distributed as part of the marital estate. Id.
¶¶ 2–3. The husband thereafter died, causing the district court to
dismiss the divorce case for lack of jurisdiction. Id. ¶ 5. The wife
then sued the mother, seeking to set aside the quitclaim deed
under the Utah Fraudulent Transfer Act (the UFTA). Id. ¶ 6. The
district court in that case ultimately ruled that the husband’s

claims to marital property before a probate court.” And in its Final
Order, the court clarified, “Due to the untimely death of
[Thomas], this court no longer has jurisdiction over this matter
and this matter is closed.” Accordingly, the court did, in fact,
conclude that it lacked jurisdiction and closed the divorce action
on that ground.
Lidia also argues that the district court abused its discretion
when it denied her motion to substitute Thomas’s personal
representative in the divorce proceeding under rule 25 of the Utah
Rules of Civil Procedure. But because the basis of the court’s
denial of that motion was its lack of jurisdiction, which ruling we
ultimately reverse, we remand to the district court with
instructions to reconsider the rule 25 motion on the merits. See
generally State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955
(“Trial courts do not have discretion to misapply the law.”)
(quotation simplified).

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transfer of his interest in the home to his mother was fraudulent
under the UFTA. Id. ¶ 8.

¶11 The mother appealed, arguing that the wife’s claim was
barred because the UFTA requires an ongoing debtor-creditor
relationship at the time a claim under the act is filed, which
relationship the husband’s death had extinguished. Id. ¶ 9.
Specifically, the mother argued that the wife’s claim against the
husband “for the whole of the marital estate, including the right
to preserve the joint tenancy” in the marital home, id. ¶ 14
(quotation simplified), became unenforceable when the husband
died because one “cannot bring a claim against a dead person”
and because “court orders that award a spouse with property
abate upon the death of a spouse,” id. ¶ 16. See generally id. ¶ 12
(“The existence of a claim, or right to payment, is at the heart of
the debtor-creditor relationship.”); id. ¶ 19 (“A claim for equitable
distribution arises when one party in a marriage threatens
divorce.”).

¶12 Quoting its prior decision in In re Harper’s Estate, 265 P.2d
1005 (Utah 1954), our Supreme Court reaffirmed that

when the death of one of the parties occurs after the
entry of a divorce decree and before the decree is
final the decree becomes ineffective to dissolve the
marriage, death having terminated that personal
relationship. However, the occurrence of death does
not abate the action itself and to the extent that
property rights are determined by the decree it
remains effective and becomes final.

Porenta, 2017 UT 78, ¶ 20 (quotation simplified). See id. ¶ 28
(reaffirming the precedent set forth in In re Harper’s Estate). In
other words, the Court held that “[t]he death of a spouse during
a divorce proceeding abates the action concerning the dissolution
of marriage, but it does not abate the action itself when certain

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property rights have been determined by the court.” 6 See id. ¶ 26
(quotation simplified). Conversely, “all interlocutory orders that
are effective only during litigation,” such as orders restraining the
parties from selling property or dissipating the marital estate,
“abate upon the dismissal of a divorce case.” Id. ¶ 27. The court
noted that this was in line with “the general rule followed in
virtually all jurisdictions . . . that, after one of the spouses dies
during a divorce proceeding, and during the time an appeal is
pending or during the time when an appeal may be taken, a
divorce or dissolution action abates with respect to marital status
of the parties but does not abate with respect to property interests
affected by the decree.” Id. ¶ 20 (quotation simplified).

¶13 Finally, the Court held that “[c]laims that survive the death
of a party are typically chargeable against that party’s estate” and
cited rule 25(a)(1) of the Utah Rules of Civil Procedure as a means
through which to pursue such claims. Id. ¶ 30. See Utah R. Civ. P.
25(a)(1) (“If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties.”). Because

6. Our Supreme Court also abandoned, as “clearly dictum,” a
statement in one of its prior decisions that purported to overrule
In re Harper’s Estate. See Porenta v. Porenta, 2017 UT 78, ¶ 22, 416
P.3d 487. Namely, the Court abandoned the statement that “the
death of one or both parties to a divorce action during the
pendency of the action causes the action itself to abate and the
married couple’s status, including their property rights, reverts to
what it had been before the action was filed.” Id. (quotation
simplified). In other words, the Court rejected “the proposition
that the parties’ property interests in the marital estate are frozen
in time during the pendency of divorce litigation” and that “[i]f a
party dies before the divorce becomes final, . . . property rights in
the marital estate . . . are transported back in time to what they
held before the divorce case was filed,” id. ¶ 23, which includes
the reversal of any transfers of property that might have occurred
during the pendency of the divorce action, id. ¶ 23 n.8.

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the Court presumed that the wife’s “claim for the whole of the
marital estate, including the right to preserve the joint tenancy” in
the marital home was not extinguished and was still valid, 7 it held
that “a debtor-creditor relationship existed between Husband’s
estate and Wife at the time Wife filed her UFTA claim.” Id. ¶ 36
(quotation simplified).

¶14 In sum, as relevant to the issue presented in the current
appeal, Porenta provides three major takeaways. First, if a spouse
dies prior to entry of a final divorce decree, the marriage no longer
requires dissolution because death already “terminated that
personal relationship.” Id. ¶ 20 (quotation simplified). See 27A
C.J.S. Divorce § 194 (2022) (“A cause of action for divorce is purely
personal, ends on the death of either spouse, and does not survive
for the benefit of a third party.”); 24 Am. Jur. 2d Divorce and
Separation § 118 (2022) (“[A] divorce suit abates when one party
dies while the suit is pending and before a decree on the merits,
because the death terminates the marriage, thus rendering the
divorce suit moot as it relates to the parties’ marital status.”).
Second, court orders entered prior to the final divorce decree
determining the property rights of the parties do not abate on the
spouse’s death. See Porenta, 2017 UT 78, ¶ 20. However, any
“interlocutory orders that are effective only during litigation
abate upon the dismissal of a divorce case.” Id. ¶ 27. See id. ¶ 27
n.13 (“This is not unique to the area of divorce law. Interlocutory
orders that expressly expire at the end of litigation do just that,
regardless of the type of case or how the litigation finally ends.”).
And third, certain unresolved claims or rights arising from a
divorce action may still be pursued following the spouse’s death.
See id. ¶ 36. See also 24 Am. Jur. 2d Divorce and Separation § 118
(“[G]iven the circumstances presented, a portion of the

7. The court employed this presumption because the mother had
not carried her burden of persuasion regarding whether property
claims raised in a divorce proceeding survive the death of a
spouse. See Porenta, 2017 UT 78, ¶¶ 32, 36; infra ¶ 15.

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dissolution action may survive an abatement of the rest of the
action.”).

¶15 Regarding the third point, because the issue had not been
adequately briefed, the Porenta Court specifically declined to
address “[w]hether a claim for equitable distribution or some
other property claim survives the death of a spouse during a
divorce proceeding,” Porenta, 2017 UT 78, ¶ 17, which the Court
characterized as “an issue of first impression in Utah,” id. ¶ 28.
Put differently, although the Court held that a district court’s
orders determining the parties’ property rights do not abate upon
a spouse’s death, it declined to determine whether the same was
true for unresolved claims for equitable distribution or other
property claims. In any event, the case before us is on a different
footing, which likewise does not necessitate that we address that
specific issue.

¶16 Unlike in Porenta, Thomas died after the district court
entered a bifurcated divorce decree dissolving the parties’
marriage but leaving all unresolved issues for a trial that
ultimately would not be held for several more years. See generally
Utah R. Civ. P. 42(b) (“The court in furtherance of convenience or
to avoid prejudice may order a separate trial of any claim, cross
claim, counterclaim, or third party claim, or of any separate issue
or of any number of claims, cross claims, counterclaims, third
party claims, or issues.”). Accordingly, because Thomas and
Lidia’s marriage had already been dissolved at the time of
Thomas’s death, we need not address the effect the death of a
spouse has on the underlying claim for equitable distribution of
the marital estate in the situation where the parties are still legally
married at the time of the death.

¶17 Rather, the issue before us is more straightforward. As
previously discussed, the reason a divorce action generally abates
upon the death of a party is because the death already
“terminated that personal relationship,” Porenta, 2017 UT 78, ¶ 20
(quotation simplified), thereby “rendering the divorce suit moot

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as it relates to the parties’ marital status,” 8 24 Am. Jur. 2d Divorce
and Separation § 118. But here, the parties stipulated to a bifurcated
divorce, and their marriage had been dissolved several years prior
to Thomas’s death. Indeed, both Thomas and Lidia had
remarried. For that reason, unlike in Porenta, Thomas’s death had
no legal effect on the parties’ already dissolved marriage and
therefore the ground on which the divorce action discussed in
Porenta abated—i.e., mootness—is not present here.

¶18 Utah courts regularly use bifurcation under rule 42(b) of
the Utah Rules of Civil Procedure “to allow divorcing spouses to
more expeditiously obtain a divorce before embarking upon the
sometimes more complex and time-consuming tasks of
determining property division and deciding matters of support.”
Parker v. Parker, 2000 UT App 30, ¶ 8, 996 P.2d 565. It is
uncontested that a district court’s jurisdiction “to enter equitable
orders relating to the property belonging to the marital estate” is
unaffected by the bifurcation. Porenta, 2017 UT 78, ¶ 19 (quotation
simplified). See Utah Code Ann. § 30-3-5(2) (LexisNexis Supp.
2022). Indeed, the Utah Constitution directs, “The district court
shall have original jurisdiction in all matters except as limited by
this constitution or by statute[.]” Utah Const. art. VIII, § 5. See
Utah Code Ann. § 78A-5-102(1) (LexisNexis Supp. 2022) (“Except
as otherwise provided by the Utah Constitution or by statute, the
district court has original jurisdiction in all matters civil and
criminal.”). Furthermore, divorce courts are generally “well

8. The mootness doctrine “is a constitutional principle limiting
our exercise of judicial power under article VIII of the Utah
Constitution” and “not a simple matter of judicial convenience.”
Transportation All. Bank v. International Confections Co., 2017 UT 55,
¶ 14, 423 P.3d 1171 (quotation simplified). “A case is deemed moot
when the requested judicial relief cannot affect the rights of the
litigants,” State v. Lane, 2009 UT 35, ¶ 18, 212 P.3d 529 (quotation
simplified), thereby rendering a decision “purely advisory,”
Transportation All. Bank, 2017 UT 55, ¶ 15 (quotation simplified).

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established as courts of equity that retain jurisdiction over the
parties and subject matter for the purposes equity may demand.”
Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 263 (quotation
simplified).

¶19 Here, because the parties’ marriage was already dissolved
prior to Thomas’s death, mootness—a jurisdictional bar, see State
v. Legg, 2016 UT App 168, ¶ 25, 380 P.3d 360—does not apply to
most of the claims at issue. 9 Because no other constitutional or
statutory bar to the district court’s jurisdiction exists in the case
before us, the district court erred in determining that it lacked
jurisdiction over all of the claims that remained at issue and in
dismissing the divorce action on that ground. See Estate of Burford
v. Burford, 935 P.2d 943, 955 (Colo. 1997) (stating that when one
party to a divorce proceeding died following dissolution of the
parties’ marriage in a bifurcated divorce, “the dissolution action
did not abate, and the district court properly maintained
jurisdiction over the marital estate to conduct hearings to resolve
financial matters raised in the dissolution proceedings”);
Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995) (agreeing
“that the trial court maintained jurisdiction to enter the final
judgment determining the parties’ property rights subsequent to
the wife’s death” where the court had dissolved the marriage
prior to her death); Barnett v. Barnett, 768 So. 2d 441, 442 (Fla. 2000)
(per curiam) (“[T]he death of a party after entry of a written,
signed judgment of dissolution but prior to the rendition of a
decision on a timely motion for rehearing concerning matters
collateral to the adjudication of dissolution did not affect the
dissolution decree or divest the court of jurisdiction to decide the

9. Not all claims raised in the current divorce action concerned
property rights. For example, it is undisputed that the claims
related to custody, child support, and parent-time abated upon
Thomas’s death. On remand, the district court should dismiss any
remaining non-property claims that were rendered moot by
Thomas’s death.

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remaining issues between the parties.”); 27A C.J.S. Divorce § 194
(“Once a decree in divorce is granted and, thereafter, one of the
parties dies, the court can continue with the equitable distribution
of marital property.”).

¶20 In cases such as this, in which “a party dies and the claim
is not thereby extinguished, the court may order substitution of
the proper parties.” Utah R. Civ. P. 25(a)(1). See Porenta, 2017 UT
78, ¶ 30 (stating that “[c]laims that survive the death of a party are
typically chargeable against that party’s estate” and citing rule
25(a)(1) of the Utah Rules of Civil Procedure as a means through
which this may be achieved). But whether to substitute a party
remains within the district court’s discretion. See Bradburn v.
Alarm Prot. Tech., LLC, 2019 UT 33, ¶ 8, 449 P.3d 20 (“A district
court’s substitution ruling is a discretionary one[.]”).
Additionally, as Thomas Jr. points out, the district court “has
inherent discretionary authority to abstain from exercising
jurisdiction where another court has concurrent jurisdiction.” See
Kish v. Wright, 562 P.2d 625, 628 (Utah 1977) (“[A]s part of the
inherent power that our district courts have, as courts of general
jurisdiction, they undoubtedly could refuse to exercise
jurisdiction if convinced that it would place an unreasonable
burden upon some or all of the parties, or upon the court, to try
the case here.”); id. (“[T]he trial court does have concurrent
jurisdiction and the power of discretion as to whether or not it will
invoke that jurisdiction in a particular case.”). These are all
considerations that we leave to the district court’s discretion on
remand. 10

10. We note that, sequentially, it may be more prudent for the
district court to equitably distribute Lidia and Thomas’s marital
estate—which potentially represents only a portion of Thomas’s
vast estate that is the subject of the probate proceeding—rather
than punting these issues to the probate court, especially where
the district court had already prepared a ruling resolving all but
(continued…)

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CONCLUSION

¶21 The district court was not required to dismiss the divorce
action for lack of jurisdiction following Thomas’s death. We
therefore reverse and remand to the district court with
instructions to reconsider Lidia’s Motion for Entry of Final
Property Distribution and Rule 25 Motion to Substitute Party.

one of the issues raised in the years-long divorce action that it
superintended.

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