The Appellate Group

Calsert v. Flores

Calsert v. Flores, 2020 UT App 102 (Harris, J.)


The appellant cohabited with her boyfriend for over twenty years. They were reputed to be husband and wife and owned joint property and accounts. She was listed as his wife on his death decree. However, she was previously married and believed she had divorced her ex-husband in 1995, although no final divorce decree was ever signed. After her boyfriend died in 2017, she petitioned the district court to recognize an unsolemnized marriage between the two. The court entered a nunc pro tunc (NPT) decree in 2018, retroactive to 1995. Her boyfriend’s Estate filed a motion to dismiss. The court dismissed the NPT decree as moot because it believed she was incapable of entering into an unsolemnized marriage. The Utah Court of Appeals reversed the district court’s order of dismissal, holding:

  • The district court erred when it used a 2005 court docket to negate the veracity of appellant’s claim that she believed she was divorced in 1995. In the context of a motion to dismiss, the court must accept a complainant’s allegations as true and draw all reasonable inferences “in the light most favorable” to the complainant. The district court erred when it failed to credit the appellant’s claim that she believed she was divorced in 1995 and was, therefore, legally capable of entering into a marriage then.
  • Parties may not submit affidavits or other evidence in connection with a motion to dismiss.
  • The district court erred when it invalidated the nunc pro tunc provision of the NPT decree. The authority to reverse, vacate, or otherwise invalidate district court determinations rests with appellate courts, not with other district judges.
  • The Estate’s argument that there is a presumption the relationship remained illicit merely because it began illicitly—before the appellant attempted to divorce her husband—was rebutted sufficiently to survive a motion to dismiss.

Read the full court opinion