                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, Huff and Chafin
PUBLISHED


            Argued at Alexandria, Virginia


            NATALIA V. LOEWINGER
                                                                                       OPINION BY
            v.     Record No. 2383-13-4                                            JUDGE GLEN A. HUFF
                                                                                     OCTOBER 21, 2014
            ESTATE OF STEPHEN JAY LOEWINGER


                               FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                           Burke F. McCahill, Judge

                           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.


                   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:

                           1. The [trial c]ourt erred in its interpretation of the parties’
                              premarital agreement in the way the [trial c]ourt calculated the
                              marital share of the proceeds of the Bethesda, Maryland
                              property upon its sale in 2004 to determine [appellant’s]
                              interest therein.
                           2. The [trial c]ourt erred in its interpretation of the parties’
                              premarital agreement by excluding from [appellant’s] lump
                              sum award her share of the marital portion of the equity in the
                              Bethesda, Maryland property, which had been retained by
                              [Loewinger] following the sale of that property in 2004.

                   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.
                                        I. BACKGROUND

       “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.

       On December 2, 1999, the parties executed a premarital agreement (“the agreement”)

prior to, and in consideration of, their marriage on December 18, 1999. At the time of their

marriage, Loewinger owned a house in Bethesda, Maryland (“the Bethesda house”) that became

the parties’ marital residence after the wedding. The agreement states that

               The parties agree that [Loewinger] shall retain a separate interest in
               [the Bethesda house] in an amount equal to the net asset value of
               the property as of the date of the marriage as shown on Exhibit A.
               The parties further agree that any appreciation beyond the value as
               shown on Exhibit A shall be treated as marital property [(“marital
               equity”)] to be shared equally by the parties in the event their
               marriage should subsequently dissolved [sic] by Decree of
               Divorce.

Elsewhere, the agreement states that “all property now owned by either party shall remain and be

his/her separate property . . . . The property currently owned by each party is set forth on

Exhibits A and B, which by reference are made a part hereof.” 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.
                                                -2-
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 “there is no money left

from [the sale of the] Bethesda [house]. Had there been, [appellant] would have . . . received a

more significant sum.”

        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



        1
         At the time of appellee’s death, the parties were still litigating issues regarding custody
and visitation of their minor child.
        2
          After noting her appeal, appellant filed with this Court a “Motion for Substitution of
Appellee or, In the Alternative, for a Stay of Appeal to Permit Entry of Order of Substitution by
the Circuit Court.” Upon consideration of this motion, this Court granted “leave” for “the trial
court to consider the appellant[’s] motion for substitution.” The trial court then granted
appellant’s motion to substitute Stephen Loewinger’s estate as the party in interest.
                                                 -3-
                                           II. ANALYSIS

       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) (“appellate

proceedings must be between living persons, either in a personal or representative capacity . . .

and if the defendant-in-error dies after the judgment appealed from, but before the writ of error is

applied for, the writ of error will be dismissed as it should have been applied for against the

personal representative of the deceased”).

       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

                                                 -4-
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 upon the terms of their premarital agreement. See Code § 8.01-2 (defining “[a]ction,” for

the purposes of Title 8, as a term that “may be used interchangeably [with ‘suit’] and shall

include all civil proceedings whether upon claims at law, in equity, or statutory in nature and

whether in circuit courts or district courts”). In other words, appellant is asserting a contract

action against Loewinger personally. See Smith v. Smith, 43 Va. App. 279, 286-87, 597 S.E.2d

250, 254 (2004) (premarital agreements “should be interpreted and enforced no differently than

any other type of contract”).

       As such, appellant was required under Code § 8.01-229(B)(2) to name Loewinger’s

personal representative, not his estate, as the party in interest in the present case. Appellant’s

failure to do so nullifies her appeal, and, therefore, the appeal must be dismissed. See Rennolds,

147 Va. at 200-01, 136 S.E. at 598.3




       3
           Code § 8.01-20 provides that

                [i]f at any time after verdict or judgment in the trial court during
                the pendency of an appeal or before the appeal is granted . . . [there
                is a] death of a party . . . the Court of Appeals or Supreme Court
                . . . may, in its discretion, take or retain jurisdiction and enter
                judgment or decree in the case as if such event had not occurred.

This provision, however, “has no application where the death occurs before the appeal or writ of
error is awarded.” Rennolds, 147 Va. at 199, 136 S.E. at 597-98 (emphasis added); see also Poff
v. Poff, 128 Va. 62, 72, 104 S.E. 719, 722 (1920) (“Where [the death of a party] occurs before
the appeal is allowed . . . the suit or action abates as to the deceased party . . . . But where an
appeal is allowed . . . before such death, the case is from that moment a case pending in the
appellate court, and under the statute . . . there is no abatement in the appellate court because of
death.” (citing Reid v. Strider, 48 Va. (7 Gratt.) 76 (1850))).
                                                   -5-
                                       III. CONCLUSION

       For the foregoing reasons, this Court holds that appellant’s action against appellee in the

present case is a nullity. Accordingly, the appeal is dismissed.

                                                                                        Dismissed.




                                               -6-
