Calsert v. Flores ( 2020 )

2020 UT App 102THE UTAH COURT OF APPEALS
JACQUELINE CALSERT,
Appellant,
v.
ESTATE OF MAXIMO VENTURA FLORES,
Appellee.
Opinion
No. 20181061-CA
Filed July 2, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 184100176
Gregory N. Skabelund, Attorney for Appellant
John D. Luthy and Matthew D. Lorz, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Jacqueline Calsert cohabited with Maximo Ventura Flores
(Ventura) for over twenty years, and soon after Ventura’s death
she filed a petition asking the district court to recognize an
unsolemnized marriage between them. The court dismissed
Calsert’s petition, ruling that Calsert had not been legally
capable of entering into a marriage with Ventura because she
had not obtained an order ending her previous marriage until
2018, after Ventura died. Calsert appeals, asserting that she was
legally capable of entering into a marriage with Ventura, because
the 2018 order was entered nunc pro tunc, retroactively to 1995.
We agree with Calsert that the district court should not have
dismissed the case, at least not at this procedural stage, and
therefore reverse the district court’s order of dismissal.
Calsert v. Flores
BACKGROUND 1
¶2 Calsert began cohabiting with Ventura in or about March
1994. At the time, however, Calsert was still legally married to
her previous husband (Ex-Husband). In an effort to end her
marriage to Ex-Husband, Calsert filed for a divorce in March
1995. A few months later, in or about August 1995, Calsert and
Ex-Husband entered into a stipulation resolving their divorce
case but, for reasons not clear in this record, no decree of divorce
was ever signed, and that divorce case sat dormant, without
final resolution, for over two decades. However, both Calsert
and Ex-Husband apparently believed that their divorce had been
finalized in 1995.
¶3 Meanwhile, in November 1995, Calsert and Ventura—
who had been cohabiting for around a year and a half—agreed
to “become husband and wife.” They continued cohabiting until
Ventura’s death in 2017. According to Calsert, over the years she
and Ventura came to own joint property and accounts, and held
themselves out as husband and wife in their community. And
according to sworn declarations from friends and community
members, Calsert and Ventura were reputed in the community
to be husband and wife.
¶4 At some point, Calsert apparently became aware that her
divorce from Ex-Husband had never been finalized, and took
two actions—some thirteen years apart—in an effort to remedy
the situation. First, in 2005, Calsert filed a second and separate
divorce petition, again seeking divorce from Ex-Husband but,
for reasons not clear from this record, that divorce case was
1. “When determining whether a [district] court properly
granted a motion to dismiss, we accept the factual allegations in
the complaint as true and consider them, and all reasonable
inferences to be drawn from them, in the light most favorable to
the non-moving party.” Krouse v. Bower, 2001 UT 28, ¶ 2, 20 P.3d
895. We recite the facts with this standard in mind.
20181061-CA 2 2020 UT App 102Calsert v. Flores
dismissed later that year. Second, in 2018—after Ventura’s death
in late 2017—Calsert filed a motion to reopen the still-dormant
1995 divorce case, and asked the court in that case to enter a
divorce decree, retroactive to 1995, finalizing the divorce
between Calsert and Ex-Husband. The court granted that motion
and entered Calsert’s requested order, rendering Calsert and Ex-
Husband divorced; the decree stated that “[t]his Decree of
Divorce and Judgment shall be effective and in full force nunc
pro tunc retroactively to August 22, 1995.” That nunc pro tunc 2
decree of divorce (the NPT Decree) was entered in April 2018.
¶5 Ventura died in December 2017, and Calsert was listed as
Ventura’s spouse on his death certificate. However, Calsert was
not appointed personal representative of Ventura’s estate (the
Estate). A few months later, Calsert filed a petition seeking
recognition of an unsolemnized marriage 3 between herself and
Ventura, dating back to March 1994, and provided a copy of that
petition to attorneys representing the Estate.
¶6 The Estate responded to Calsert’s petition by filing a
motion to dismiss, pursuant to rule 12(b)(6) of the Utah Rules of
Civil Procedure, asserting that Calsert’s petition failed to state a
valid claim for recognition of an unsolemnized marriage.
Specifically, the Estate asserted that, because Calsert had been
2. “Nunc pro tunc” is a Latin phrase meaning “now for then,”
and is a way of referring to a court’s “inherent power” to give an
order or judgment “retroactive legal effect.” See Nunc Pro Tunc,
Black’s Law Dictionary (11th ed. 2019).
3. We recognize that such marriages are often—and not just
colloquially—referred to as “common-law marriages,” see
generally, e.g., Volk v. Vecchi, 2020 UT App 77, even though in
Utah they are creatures of statute rather than common law, see
Utah Code Ann. § 30-1-4.5 (LexisNexis 2019). In this opinion,
given their statutory origin, we generally refer to such marriages
as “unsolemnized marriages.”
20181061-CA 3 2020 UT App 102Calsert v. Flores
legally married to Ex-Husband during the entire time she had
been living with Ventura, she was not “legally capable of
entering a solemnized marriage” with Ventura, as required by
statute. See Utah Code Ann. § 30-1-4.5(1)(b) (LexisNexis 2019).
The Estate also argued that, because Calsert’s petition alleged
that she had begun cohabiting with Ventura in 1994, and was not
divorced—even nunc pro tunc—until 1995, the NPT Decree was
of no help to her.
¶7 Calsert opposed the Estate’s motion, asserting that, due to
the NPT Decree, she was legally capable, as of August 1995, of
entering into a marriage with Ventura. In addition, Calsert
asserted that she could meet all of the other statutory
requirements for recognition of an unsolemnized marriage, and
supported that contention with nineteen sworn declarations.
And, to the extent that the date of first cohabitation would be a
problem for her, Calsert asked for permission to amend her
petition to seek recognition of an unsolemnized marriage
beginning in November 1995 (instead of March 1994).
¶8 After holding a hearing, the district court granted the
Estate’s motion to dismiss. In its decision, the court took judicial
notice of the docket entries from the 1995 and 2005 divorce cases
Calsert filed. The court then proceeded to “find[]” that the nunc
pro tunc provision of the NPT Decree—entered by a different
judge in a different case—“is invalid and not enforceable.” The
court expressed its view that the facts of this situation did not
lend themselves to the entry of a nunc pro tunc order, and
declared that Calsert had “failed to provide” certain information
to the judge in the 1995 divorce case, which information “would
have prevented the [NPT Decree] from being retroactive.” Thus
freed from the constraints of the nunc pro tunc provision of the
other judge’s NPT Decree, the district court concluded that
Calsert was not legally capable of entering into a solemnized
marriage, and therefore could not, as a matter of law, meet the
statutory requirements for recognition of an unsolemnized
marriage. Accordingly, the court dismissed Calsert’s petition
and denied Calsert’s motion to amend as moot.
20181061-CA 4 2020 UT App 102Calsert v. Flores
ISSUE AND STANDARD OF REVIEW
¶9 Calsert now appeals the district court’s order of dismissal,
entered pursuant to rule 12(b)(6) of the Utah Rules of Civil
Procedure. A district court should grant a rule 12(b)(6) motion
only when, “assuming the truth of the allegations” that a party
has made and “drawing all reasonable inferences therefrom in
the light most favorable” to that party, “it is clear that [the party]
is not entitled to relief.” Mitchell v. ReconTrust Co., 2016 UT App
88, ¶ 16, 373 P.3d 189 (quotation simplified); see also Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275 (stating that a
dismissal is warranted only when a party “would not be entitled
to relief under the facts alleged or under any state of facts they
could prove to support their claim” (quotation simplified)).
“Because the propriety of a motion to dismiss is a question of
law, we review for correctness, giving no deference to the
decision of the [district] court.” McGraw v. University of Utah,
2019 UT App 144, ¶ 9, 449 P.3d 943 (quotation simplified).
ANALYSIS
¶10 Calsert identifies two potential infirmities with the district
court’s decision to dismiss her petition. First, she contends that
the district court improperly took judicial notice of the court
dockets in her 1995 and 2005 divorce cases. Second, she contends
that the district court exceeded its authority by declaring invalid
part of an order—the nunc pro tunc provision of the NPT
Decree—entered in another case by another judge. The Estate
contests both of these arguments, and in addition asserts that the
court’s order of dismissal was proper even if Calsert’s two
arguments are correct. We address each of these issues in turn.
A
¶11 Calsert first asserts that the district court improperly took
judicial notice of the court dockets in her 1995 and 2005 divorce
cases. The Estate defends the district court’s evaluation of the
20181061-CA 5 2020 UT App 102Calsert v. Flores
court records, pointing out that, as a general matter, courts
adjudicating motions to dismiss “may consider documents that
are referred to in the complaint and are central to the plaintiff’s
claim and may also take judicial notice of public records.” See
Mitchell v. ReconTrust Co., 2016 UT App 88, ¶ 16, 373 P.3d 189(quotation simplified). The Estate asserts that court documents
are “public records” that may be noticed by courts, even in the
context of a motion to dismiss.
¶12 We have our doubts about the validity of the Estate’s
assertion. See State v. Shreve, 514 P.2d 216, 217 (Utah 1973)
(stating that, while a court may “take judicial knowledge of its
own records insofar as those records are a part of the matter
before the court,” “records of other proceedings in the court
cannot be judicially noticed and must be introduced in evidence
in order to be considered in the pending case”); see also In re C.Y.,
765 P.2d 251, 254 (Utah Ct. App. 1988) (“It is improper for a
court to sua sponte take judicial notice of records and
proceedings in other actions without giving full notice to the
parties and without giving them an opportunity to explain or
rebut the judicially noticed facts.” (quotation simplified)). And
we note that, in the context of a motion to dismiss, a procedural
context in which a complainant’s allegations must be taken as
true, parties are not generally allowed to introduce evidence. 4 If
a court elects to consider evidence outside the pleadings while
considering a motion to dismiss, the motion must be converted
to one for summary judgment, and the non-movant must be
4. As noted above, however, courts considering motions to
dismiss filed pursuant to rule 12(b)(6) of the Utah Rules of Civil
Procedure are permitted to consider documents “referred to in
the complaint,” or that are “central to” the complaint, see
Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 13, 104
P.3d 1226, as well as certain types of public records, see Mitchell
v. ReconTrust Co., 2016 UT App 88, ¶ 16, 373 P.3d 189. But parties
may not submit affidavits or other evidence in connection with a
motion to dismiss.
20181061-CA 6 2020 UT App 102Calsert v. Flores
afforded an opportunity to introduce competing affidavits and
documents. See Lewis v. U.S. Bank Trust, NA, 2020 UT App 55,
¶ 10, 463 P.3d 694; see also Utah R. Civ. P. 12(b).
¶13 But even if we assume, without deciding, that it was
permissible for the district court to have considered the court
dockets in connection with the Estate’s motion to dismiss, the
court must nevertheless “accept [a complainant’s] factual
allegations as true.” First Interstate Fin. LLC v. Savage, 2020 UT
App 1, ¶ 15, 458 P.3d 1161. In both this case as well as in First
Interstate, the information from the public records could either be
interpreted as contradicting some of the complainant’s
allegations, or be interpreted as entirely consistent with the
complainant’s allegations. See id. Here, the district court
interpreted the court documents in a light least (instead of most)
favorable to Calsert’s claims—it determined, “because she filed a
second petition for divorce” in 2005, that she must have “clearly
kn[own] she was not able to marry” Ventura. 5 Such a conclusion
does not necessarily follow from the court documents. Calsert’s
5. We note that the subjective knowledge of the relationship’s
participants regarding their legal capability of entering into a
marriage is not part of the statutory test for recognition of an
unsolemnized marriage. See Utah Code Ann. § 30-1-4.5(1)
(LexisNexis 2019). However, as discussed below, see infra ¶ 20, a
party seeking recognition of an unsolemnized marriage must not
only satisfy the five listed statutory requirements, but must also
demonstrate that both parties consented to the arrangement. See
Whyte v. Blair, 885 P.2d 791, 794 (Utah 1994) (stating that “the
party claiming the benefit of an unsolemnized marriage” must
show “that at some point mutual consent was given”). Although
it is not explicit in the district court’s decision, which appears
grounded entirely upon the conclusion that Calsert was “not
legally capable of entering a solemnized marriage,” we presume
the court was discussing Calsert’s subjective intent in the context
of evaluating her ability to have consented to a marriage-like
relationship with Ventura.
20181061-CA 7 2020 UT App 102Calsert v. Flores
2005 filing is hardly more detrimental to her cause than her 2018
request for a nunc pro tunc divorce decree; both indicate that,
sometime prior to 2005, Calsert learned that her divorce was not
final, and that she took steps to remedy the situation. Neither
filing is necessarily inconsistent with her allegations that, in
1995, she thought her divorce was final and that she committed
to an unsolemnized marriage with Ventura.
¶14 In the context of a motion to dismiss, the court must
accept Calsert’s allegations as true, and draw all reasonable
inferences “in the light most favorable” to Calsert. Mitchell, 2016
UT App 88, ¶ 16 (quotation simplified). The district court’s
treatment of the 2005 court docket indicates that it did not
properly apply this standard. Even if it could have properly
taken notice of the older court dockets while adjudicating the
Estate’s motion to dismiss, the court was still required to assume
the truth of Calsert’s allegations that, in 1995, she thought her
divorce was final, and that she believed herself legally capable
of, and did commit to, entering into a marriage with Ventura.
The court’s use of the 2005 court docket to negate the veracity of
Calsert’s allegations was, in this context, erroneous.
B
¶15 Calsert next asserts that the district court erred when it
declared “invalid and not enforceable” the nunc pro tunc
provision of the NPT Decree. Calsert’s assertion is correct.
¶16 A district judge presiding over one case ordinarily does
not possess authority to declare invalid an order entered by
another district judge in another case. See Mascaro v. Davis, 741
P.2d 938, 946 (Utah 1987) (“One district judge cannot overrule
another district court judge of equal authority.”); Richardson v.
Grand Central Corp., 572 P.2d 395, 397 (Utah 1977) (“Ordinarily
one judge of the same court cannot properly overrule the
decision of another judge of that court.”). Certainly, one district
court’s legal analysis—for instance, regarding the proper
interpretation of a statute—in one case is not binding on another
20181061-CA 8 2020 UT App 102Calsert v. Flores
district court judge in another case in the way an appellate
court’s legal analysis would be as a matter of vertical stare
decisis. See State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994)
(stating that “[v]ertical stare decisis . . . compels a court to follow
strictly the decisions rendered by a higher court”), superseded by
constitutional amendment on other grounds as stated in State v. Legg,
2018 UT 12, 417 P.3d 592. But where a district judge in one case
has made a specific factual determination applicable to the
parties in that case—for instance, that two parties are divorced,
or that an individual was negligent on a particular occasion—
another district judge presiding over a different case possesses
no authority to second-guess the first judge’s determination. The
judge presiding over the second case must take the first judge’s
order as he or she finds it, and ordinarily may not declare it
invalid. The authority to reverse, vacate, or otherwise invalidate
district court determinations rests with appellate courts, not with
other district judges. 6
6. The situation is, of course, different where one judge succeeds
another judge, and takes over the first judge’s docket. In that
situation, the successor judge steps into the shoes of the original
judge, and continues to preside over the same cases. See Build,
Inc. v. Utah Dep't of Transp., 2018 UT 34, ¶ 31, 428 P.3d 995(stating that, where one judge takes over for another in the same
case, the successor judge is the “same judicial officer” as the first
judge, and that, in such a situation, we indulge the “fiction” that
“there is no such thing as a predecessor or successor—just the
district court” (quotation simplified)); Blackmore v. L & D Dev.
Inc., 2016 UT App 198, ¶ 31, 382 P.3d 655 (stating that, when one
judge takes over for another in the same case, we view the “two
judges, while different persons,” to “constitute a single judicial
office” (quotation simplified)). In that situation, the successor
judge is granted “broad discretion” to “revisit any nonfinal
decision entered” in that case by the predecessor judge. Build,
Inc., 2018 UT 34, ¶ 27. But this case law is inapposite here, where
the court did not simply reconsider a nonfinal order entered by a
(continued…)
20181061-CA 9 2020 UT App 102Calsert v. Flores
¶17 There is a potential exception to this general rule, and that
is found in rule 60(d) of the Utah Rules of Civil Procedure, which
allows district courts “to entertain an independent action to
relieve a party from a judgment, order or proceedings or to set
aside a judgment for fraud upon the court.” 7 Utah R. Civ. P.
60(d). The Estate invokes rule 60(d) in its appellate brief, and
directs our attention to federal case law holding that
“independent actions” brought pursuant to the federal version
of rule 60(d) do not necessarily need to be filed in the form of a
separate lawsuit, and “may be raised by way of defense to a suit
seeking to enforce the contested judgment.” (Citing Morrel v.
Nationwide Mutual Fire Ins. Co., 188 F.3d 218, 223 (4th Cir. 1999)).
However, although we are skeptical of the Estate’s position—see
In re Estate of Willey, 2016 UT 53, ¶ 11 n.7, 391 P.3d 171 (refusing
to consider a motion as a rule 60(d) “independent action,”
because “it was not asserted in a separate complaint filed with
the [district court] and served on the parties from whom” relief
is sought)—we need not reach the question of whether Utah’s
rule 60(d) should be interpreted in the manner the Estate
suggests, because the Estate did not invoke rule 60(d) before the
(…continued)
predecessor judge in the same case, but instead declared invalid
a final order entered in a different case.
7. We note that rule 60(b) of the Utah Rules of Civil Procedure
also allows a court to grant relief from a “judgment, order, or
proceeding,” but—in contrast to rule 60(d)—such relief is
available only by “motion,” which must be filed within the same
case in which the target judgment or order was entered. Thus,
rule 60(b) does not provide an exception to the general rule that
a district judge presiding over one case may not invalidate an
order entered by another district judge in a different case. To our
knowledge, the Estate has not attempted to file a rule 60(b)
motion—in Calsert’s 1995 divorce case to which it was not a
party—seeking relief from the NPT Decree.
20181061-CA 10 2020 UT App 102Calsert v. Flores
district court. Perhaps recognizing this, the Estate posits that,
“[i]n substance,” it asserted, “by way of its [m]otion to [d]ismiss,
a defensive ‘independent action’ to set aside” the NPT Decree
“for fraud upon the court.”8 But neither the Estate’s motion to
dismiss, nor any of its accompanying papers, made so much as a
passing mention of rule 60(d), let alone a specific request that the
district court grant relief thereunder. Thus, even if it were
possible to invoke rule 60(d) defensively, the Estate made no
effort to do so before the district court, where any defenses to
such a claim might have been explored, and offers no argument
that it should be allowed to do so for the first time on appeal.
¶18 Accordingly, the Estate has not properly invoked the rule
60(d) exception to the general rule that a district judge, presiding
over one case, may not declare invalid an order entered in
another case by another district judge. At least for purposes of
adjudicating the Estate’s motion to dismiss, the district court was
required to accept the validity of the NPT Decree, including the
provision declaring that decree retroactive to August 1995. Its
attempt to declare that provision “invalid and not enforceable”
8. In addition to offering its viewpoint that the other district
judge misapplied his authority to enter a nunc pro tunc order,
the district court also definitively stated, in its written order, that
Calsert “failed to provide” certain information to the other judge
in connection with her efforts to obtain the NPT Decree, and that
proper communication of that information to the other judge
“would have prevented” the other judge from making the NPT
Decree retroactive. We cannot tell, from this record, how the
district court would know what information Calsert provided to
the judge in the other case, or how it would possibly know what
effect any additional information would have had on the other
judge’s decision; we presume that the court’s knowledge came
from some source other than informal off-the-record discussions
with the other judge, or was mere speculation. It should go
without saying that judges should not base their decisions on
back-channel conversations with their colleagues.
20181061-CA 11 2020 UT App 102Calsert v. Flores
was improper. 9 Under the terms of the NPT Decree, Calsert was
legally capable of entering into a marriage with Ventura as of
August 1995. The district court’s contrary conclusion, based on
its improper determination that the NPT Decree was invalid,
was therefore erroneous.
C
¶19 The Estate nevertheless asks us to affirm the district
court’s order of dismissal, asserting that even if Calsert was, by
virtue of the NPT Decree, legally capable of entering into a
marriage with Ventura in August 1995, Calsert “cannot be
deemed [Ventura’s] common law wife as a matter of law.”
¶20 In addition to being legally capable of marriage and
meeting the four other listed statutory requirements, see Utah
Code Ann. § 30-1-4.5(1) (LexisNexis 2019), a person claiming an
unsolemnized marriage must also demonstrate that both parties
consented to the arrangement. See Volk v. Vecchi, 2020 UT App
77, ¶ 12; see also Whyte v. Blair, 885 P.2d 791, 794 (Utah 1994)
(stating that “the party claiming the benefit of an unsolemnized
9. It is worth noting that our legislature has specifically
authorized district courts to “enter an order nunc pro tunc in a
matter relating to marriage, divorce, legal separation or
annulment of marriage.” Utah Code Ann. § 30-4a-1 (LexisNexis
2019); see also Horne v. Horne, 737 P.2d 244, 247 (Utah Ct. App.
1987) (citing comments made by the legislative sponsor of the
bill containing that statutory language, indicating that the
legislation was necessary to remedy cases of “obvious injustice,”
including situations where parties, erroneously “believing they
were divorced, entered into subsequent marriages”). The
propriety of the NPT Decree is not before us, just as it was not
before the district court, but we cite this statute here simply to
indicate that entry of a nunc pro tunc decree of divorce under
circumstances similar to those claimed by Calsert is not
necessarily inconsistent with legislative intent.
20181061-CA 12 2020 UT App 102Calsert v. Flores
marriage” must show “that at some point mutual consent was
given”). In Whyte, the court stated that the consent requirement
“has at times been expressed by the statement that a common
law marriage must take place immediately or not at all,” and
that “a relationship illicit in its inception is presumed to be illicit
throughout the period of cohabitation.” 885 P.2d at 794–95
(citing In re Estate of Murnion, 686 P.2d 893, 897–99 (Mont. 1984)).
¶21 Citing this language, the Estate asserts that Calsert’s
“knowledge and intent” with regard to consent “must be
evaluated as they actually existed as of the date she alleges her
common law marriage began,” which is March 1994. At that
point, the Estate argues, Calsert knew that she was still married
to Ex-Husband, and even under the NPT Decree, that did not
change until August 1995. Because Calsert alleges that the
unsolemnized marriage began in March 1994, and because
Calsert was still married to Ex-Husband in March 1994, the
Estate reasons that the relationship was “illicit in its inception”
and must therefore be “presumed to be illicit throughout” the
entire period of cohabitation. See id. at 795.
¶22 While the Estate’s argument is correct as far as it goes, it is
ultimately unavailing here, because Whyte speaks in terms of a
“presumption,” id., and its language stands simply for the
proposition that there exists a rebuttable presumption that a
relationship illicit in its inception has remained illicit throughout
its duration, see Murnion, 686 P.2d at 897 (relied upon by Whyte).
A litigant may, of course, rebut any such presumption “by
showing that [her] original meretricious relationship changed
into a lawful one” at a later date. Id. Indeed, in Murnion, the
court recognized an unsolemnized marriage between a couple
whose relationship began in Washington—a state that does not
recognize common-law marriages—but continued after a
relocation to Montana—a state that does recognize such
marriages. See id. at 899–900; cf. Volk, 2020 UT App 77, ¶¶ 7, 37
(affirming a district court’s determination to recognize an
unsolemnized marriage effective during the thirty-month period
the parties resided in Utah, even though the parties had
20181061-CA 13 2020 UT App 102Calsert v. Flores
cohabited in California—a state that does not recognize
unsolemnized marriages—for more than a decade prior to
relocating to Utah). Thus, even a relationship that takes root
under circumstances not capable of qualifying as a recognizable
unsolemnized marriage may later qualify as such under our
statute if circumstances change.
¶23 The Estate correctly notes that, given Calsert’s allegation
in her petition that her relationship with Ventura began in
March 1994, while she was still legally married to Ex-Husband,
that relationship may have been “illicit in its inception,” see
Whyte, 885 P.2d at 795, and not capable, at its outset, of
qualifying as an unsolemnized marriage. The Estate also
correctly notes that, given the illicit beginnings of that
relationship, there apparently exists a presumption that the
relationship continued to be illicit throughout its duration. Id.;
see also Murnion, 686 P.2d at 897. But Calsert is entitled to rebut
that presumption with competent evidence, and is entitled to an
opportunity to demonstrate that, at some point during the
duration of the relationship, its nature changed from illicit to
licit, and that at some point the relationship met all of the
requirements for recognition of an unsolemnized marriage, even
if it did not at its inception.
¶24 Calsert alleges that, given the NPT Decree, her
relationship with Ventura turned licit at some point after August
1995, and that she could thereafter satisfy all of the statutory
requirements for recognition of an unsolemnized marriage. 10
10. Calsert’s petition claimed that her unsolemnized marriage to
Ventura should be recognized as of March 1994. Later, however,
perhaps recognizing that the NPT Decree did not render her
divorced until August 1995, Calsert filed a motion seeking leave
to amend her petition to change the date—from March 1994 to
November 1995—on which she sought recognition of an
unsolemnized marriage. After granting the Estate’s motion to
dismiss, the district court denied the motion to amend as moot.
(continued…)
20181061-CA 14 2020 UT App 102Calsert v. Flores
When evaluating the Estate’s motion to dismiss, the district court
was required to accept those allegations as true. We, of course,
cannot say whether further litigation, including discovery, will
bear out the veracity of Calsert’s allegations. But Calsert has
alleged sufficient facts to survive a motion to dismiss, and she is
entitled to the opportunity to proceed with her lawsuit and
attempt to prove her allegations in further litigation.
CONCLUSION
¶25 The district court erred when it determined, as a matter of
law, that Calsert was not legally capable of entering into a
marriage with Ventura in 1995. In reaching that determination,
the court made improper use of the 2005 court docket, and
improperly disregarded the NPT Decree as “invalid.” Calsert
has alleged facts that, if true, could support recognition of an
unsolemnized marriage between herself and Ventura, and she is
entitled to further litigation on her petition. We therefore reverse
the order dismissing Calsert’s petition, and we remand the case
for further proceedings consistent with this opinion.
(…continued)
On remand, Calsert will be free to renew that motion in the
event she still desires to amend her petition.
20181061-CA 15 2020 UT App 102