Loewinger v.Estate of Loewinger
Decision Date | 21 October 2014 |
Docket Number | Record No. 2383–13–4. |
Court | Virginia Court of Appeals |
Parties | Natalia V. LOEWINGER v. ESTATE OF Stephen Jay LOEWINGER. |
Patrick G. Merkle (Law Offices of Patrick G. Merkle, PLLC, on brief), for appellant.
Vernon W. Johnson, III (Nixon Peabody LLP, on brief), for appellee.
Present: ALSTON, HUFF and CHAFIN, JJ.
Natalia V. Loewinger (“appellant”) appeals an order of the Circuit Court of Loudoun County (“trial court”) directing Stephen J. Loewinger (“Loewinger”) to pay appellant a lump sum amount of $59,805.67 pursuant to the parties' premarital agreement. Appellant presents the following assignments of error on appeal:
For the following reasons, this Court holds that appellant's action against the Estate of Stephen J. Loewinger (“appellee”) in the present case is a nullity. Accordingly, the appeal is dismissed.
“When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the evidence is as follows.
Elsewhere, the agreement states that Exhibit A, which details Loewinger's separate property at the time the agreement was executed, lists multiple retirement and money market accounts, including an account Loewinger referred to as his premarital “money market account.”
In 1999, when the parties entered into the agreement, the Bethesda house was valued at $500,000 with a mortgage debt of $265,000. The parties sold the Bethesda house in 2004, however, for $810,000. When the house was sold, it had an outstanding mortgage debt of $311,898.55. This increased mortgage debt led the trial court to conclude, by “inference,” that the Bethesda house had been refinanced even though there was not “any direct evidence” of this. After satisfying the outstanding mortgage and closing costs from the sale of the Bethesda house, the parties netted $458,289.20, the entirety of which was deposited into Loewinger's money market account.
In August 2011, eight years after the sale of the Bethesda house, Loewinger left the marital home and instituted divorce proceedings against appellant. At the time of the parties' trial for divorce and distribution of marital property on August 29, 2012, the money market account had a balance of $811. The trial court found that after depositing the proceeds from the sale of the Bethesda house in the money market account, Loewinger had used the money to make a substantial down payment on a house in Leesburg, Virginia, buy a $38,000 Lexus for appellant, redecorate their house, install a deck, and go on family vacations.
In the decree of divorce, the trial court awarded appellant $59,805.67 as a lump sum award under the agreement. The trial court also noted, however, that
On October 6, 2013, more than one year after the entry of the divorce decree, Loewinger passed away, causing the trial court to enter a final order dismissing the case on November 20, 2013.1 Appellant subsequently noted her appeal to this Court on December 12, 2013, but thereafter obtained leave for the trial court to substitute Stephen Loewinger's estate as the party in interest.2
On appeal, appellant contends the trial court erred in its interpretation of the premarital agreement. Specifically, appellant argues that the trial court erred (1) in “its interpretation of the parties' premarital agreement ... [when] calculat[ing] the marital share of the proceeds from the sale of the Bethesda [house],” and (2) by “excluding from [appellant's] lump sum award her share of the marital portion of the equity in the Bethesda [house]....”
As an initial matter, however, appellee responds by arguing that the current appeal is a nullity and must be dismissed because appellee is not a proper party to the case. We agree.
It is well established in Virginia that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity.” Rennolds v. Williams, 147 Va. 196, 198, 136 S.E. 597, 597 (1927). This is so because “[t]here must be such parties to the record as can be affected by the judgment and from whom obedience can be compelled.” Id. at 198–99, 136 S.E. at 597. This principle applies “to writs of error, which are in the nature of new actions, as well as to an original action.” Id. at 199, 136 S.E. at 597 ; see also Martin P. Burks, Common Law and Statutory Pleading and Practice § 423 (4th ed.1952) ().
Accordingly, Code § 8.01–229(B)(1) and (B)(2) “direct [a] decedent's personal representative to file any personal action which the decedent may have been entitled to bring and to defend any personal action which could be brought against the decedent.” Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (emphasis added). This limitation is further highlighted by the language of Code § 8.01–229(B) “which allows claims to be filed against the property of the estate, but provides that actions may only be filed against the decedent's personal representative.” Id. (citing Code § 8.01–229(B)(2) and (B)(4) ).
In the present case, appellant is not asserting a “claim ... against the property of [Loewinger's] estate,” id., but rather, she is asserting an action against Loewinger personally based...
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