COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, AtLe e and Senior Judge Clements

LAWRENCE A. KESSER MEMORANDUM OPINION * v. Record No. 0886-16-1 PER CURIAM OCTOBER 11, 2016 CARYN F. KESSER

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge (Todd M. Fiorella; John G. Baker; Patrick J. Genova; Fraim & Fiorella, P.C., on briefs), for appellant. (Brandon H. Zeigler; T. Alexande r Cloud, Jr.; Parks Zeigler, PLLC, on brief), for appellee.
On May 11, 2016, the circuit cour t entered an order that dismissed this case based on lack of jurisdiction. Lawrence Kesser (husband) timely file d a notice of appeal. He argues that the trial court erred by (1) failing to rule that Cary n Kesser (wife) was judicial ly estopped from entering evidence that was contrary to the facts alleged in her pleadings; (2) failing to invalidate the parties’ marital agreement because “it was procured by fraud and/or undue influence, and it is both oppressive and unconscionable;” (3) applying the wrong legal standard after finding that wife owed a fiduciary duty to husba nd at the time they execu ted the marita l agreement; 1 (4) permitting wife to testify to facts contrary to those alleged in her pleadings to dete rmine that the trial court did not have

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 As subparts to (3), supra, husband contends that the trial court erred in (a) not finding that the marital agreement was invalid as a matter of law because it was “highly favorable” to wife and she owed a fiduciary du ty to husband; and (b) not finding that the mari tal agreement was invalid because wife failed to prove by clear and convincing evidence that the marital agreement was fair and not procured by fraud.UNPUBLISHED- 2 - jurisdiction; and (5) refu sing to enforce the marital agreement because wife committed the first material breach of the marital ag reement. Wife filed a motion to dismiss husband’s appeal, arguing that he does not have standing to appeal the circui t court’s order. For the re asons stated below, this Court dismisses the appeal.
BACKGROUND On February 27, 20 14, wife filed a co mplaint for divorce. 2 She asked the circuit court to affirm, ratify, and incorporate the parties’ marital agreement dated Ma y 2, 2013 into a final decree of divorce. Wife alleged that the parties separated, with the intent to rema in permanently separated, on February 19, 2013. The parties disputed the validit y of the marital agreement. Wi fe filed a motion to affirm the validity of the parties’ marital agreement. The circuit court he ard evidence and argument over several days. During the trial, wife testified that sh e did not in tend to separate from husband until November or Dece mber 2013. On December 4, 2015, the circuit court is sued a fifteen-page letter opinion and granted wife’s motion. The circu it court held that the marital agreement was enforceable and not invalid due to unconscionability, fraud, or duress. Husband subsequently filed a mo tion to reconsider and brief in support thereof. He asked the circuit court to “reconsider its opinion and find that the Ma rital Agreement is invalid or unenforceable or, in the alternative, that the Court di smiss this matter for lack of juri sdiction.” With respect to his lack of jurisdiction argument, husband argued that “the Court’s finding that Ms. Kesser is not bound by her pleadings, with respect to the da te on which she in tended to leave the marriage, eliminates th e Court’s jurisdiction.”

2 Wife subsequently filed an amended compla int, which the circuit court allowed by order dated March 18, 2014. The only difference between the original complaint and the amended complaint was the date of marriage.- 3 - On March 3, 2016, the parties appeared befo re the circuit court on husband’s motion to reconsider. On April 11, 2016, the circuit court issu ed a letter opinion th at granted husband’s motion to reconsider. The circuit court held that wife’s testimony establishes that the parties did not intend to permanently discontinue the mar ital relationship at the beginning of their physical separation and did not develop such an intent until approximately three months before she filed the divorce complaint. As such, the parties had not “lived separate and apart” for one year when this action was commenced and the record does not contain adequate grounds for divorce under Code § 20-91(A)(9)(a). Accordingly, the circuit court ordered that wife ’s complaint for divorce be dismissed. On May 11, 2016, the circuit court entered an order reflecting its rulings. Both parties noted objections to the order. On May 31, 2016, husband filed a notice of appeal.
ANALYSIS Wife argues that husband’s appeal should be dismissed because he lacks standing. She contends he is not an “aggrieved party,” since the circuit court gr anted his request to dismiss the underlying matter for lack of jurisdiction. Pursuant to Code § 17.1-405, only an “aggrie ved party” may appeal to the Court of Appeals. “It is elementary that an appellant must have been aggrieved by the decree appealed from or he has no standing . . . .” Stone v. Henderson, 182 Va. 648, 651, 29 S.E.2d 845, 846 (1944). The term “aggrieved” has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to seek court relief from an adverse deci sion . . . . The word “aggrieved” in a statute contemplates a s ubstantial grieva nce and means a denial of some personal or propert y right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally. Commonwealth v. Harley, 256 Va. 216, 218-19, 504 S.E.2d 852, 853 (1998) (quoting Va. Beach Beautification Comm’n v. Board of Z oning Appeals, 231 Va. 415, 419-20, 344 S.E.2d 899,- 4 - 902-03 (1986)); see also D’Alessio v. Lukhard, 5 Va. App. 404, 408, 363 S.E.2d 715, 718 (1988). In Harley, the defendant app ealed his six felony convictions to this Court and argued that the trial court erred in denying his motion for a transcript of a suppres sion hearing at the Commonwealth’s expense. In a published opini on, this Court held that the defendant was entitled to a free transcript of the suppression hearing. See Harley v. Commonwealth, 25 Va. App. 342, 350, 488 S.E.2d 647, 650 (1997). However, this Court concl uded that the trial court’s error was harmless because there were “no significant discrepancies between the witnesses’ testimony at the suppression hearing and their testimony at tr ial.” Id. at 351, 488 S.E.2d at 651. Accordingly, this Court affirm ed the defendant’s convictions. See id. The Commonwealth filed a petition for appeal with the Supreme Court of Virginia, and sought to reverse this Court’s d ecision that the defendant was cons titutionally entitled to a free transcript of the suppression hearing. Ha rley, 256 Va. at 218, 504 S.E.2d at 853. The Commonwealth was concerned that this Court’s decision “will have the effect of imposing substantial new financial burde ns on the Commonwealth to provi de transcripts to indigent defendants who previously would not have been entitled to them.” Id. at 219, 504 S.E.2d at 853. The Supreme Court of Virginia dismissed the appeal on the basi s that the Commonwealth lacked standing as a “party aggrieve d.” Id. at 220, 504 S.E.2d at 854. We do not agree that the Commonw ealth is aggrieved by the Court of Appeals’ ruling with respect to the issue of Harley’s entitlement to a free transcript of his suppr ession hearing. That issue was rendered moot by the Court of A ppeals’ further ruling that the error in the trial court’s denial of a free transcript was harmless.

. . . . In reality, the Commonwealth in vites this Court to render an advisory opinion on a moot quest ion based upon speculative facts. This is an exercise in which the Court traditionally declines to participate. “The reason . . . is that the courts are not constituted- 5 - . . . to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative.” Id. at 219-20, 504 S.E.2d at 853-54 (quoting C ity of Fairfax v. Shanklin, 205 Va. 227, 229-30, 135 S.E.2d 773, 775-76 (1964)). The Supreme Court of Virginia refused to consider the Commonwealth’s appeal “based upon the apprehen sion that it will suffer the imposition of some future burden.” Id. at 219, 504 S.E.2d at 854. In this case, the circuit court granted husband’s motion to reconsider and dismissed wife’s complaint for divorce. The circuit court agreed with husband that it lacked jurisdiction to hear the matter because wife filed her compla int for divorce before the parties had been separated, with the intent to separate, for more than one year, as required by Code § 20-91(A)(9)(a). Husband was the prevailing part y below, so he is not an “aggrieved party” pursuant to Code § 17.1-405. 3 Although husband did not like th e circuit court’s decision because he wanted the circuit court to rule in his favor on the validity of the marital agreement, his dislike does not give him standing to appeal the circuit court’s decision to dismiss wife’s complaint.

3 In his reply brief, husband states that he asked the circuit court to “hold Ms. Kesser to her pleadings and rule on the validity of the ma rital agreement; or apply the appropriate standard to the facts relating to the validity of the Ma rital Agreement and grant Mr. Kesser a divorce on the grounds stated in his Counterclaim.” He c ontends since the circuit court chose neither option, he is an aggrieved party. However, hus band’s motion to reconsid er states, “Wherefore, the Respondent, by counsel, respec tfully requests that this Cour t reconsider its opinion on the validity of the Marital Agreement and find that the Agreement is invalid and unenforceable or, in the alternative, that the Court dismiss this matter for lack of jurisdiction .” (Emphasis added.) Likewise, in his brief in support of his motion to r econsider, husband states, “In the alternative, if the Court finds that Ms. Kesser is not bound by he r pleadings with respect to the date of separation, the Court must dismiss this action be cause it lacks jurisd iction to hear it .” (Emphasis added.) In its letter opini on, the circuit court ag reed with husband and concluded that “it improvidently decided Wife’s Motion to Confirm the Validity of the Marital Agreement without fully considering Husband’s argumen t regarding the effect of Wife’s testimony as to the date she developed the intent to permanently discontinue the parties’ marital rela tionship upon the Court’s authority to adjudicate this ac tion under Code § 20-91(A)(9)(a).” The circuit court then granted husband’s motion to reconsider based on the alte rnative argument expressed in his motion to reconsider and accompanying brief. Accordingl y, contrary to husband’s argument in his reply brief, he is the prevailing party, not the aggrieved party.- 6 - CONCLUSION For the foregoing reasons, wife’s motion to dism iss is granted, and the case is dismissed. The Court denies wife’s motion for sanctions agains t husband, but finds that wife is entitled to a reasonable amount of attorney’s fees and costs. The Court remands this case to the trial court for determination and award of the appropriate appellat e attorney’s fees and costs, which also should include any additional attorney’s fees and costs incurred at the remand hearing. Rule 5A:30(b). Dismissed and remanded.