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 
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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 

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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 

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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 

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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.