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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 602 September Term, 2000 _______________________________

JACKLYN KAY HEINEMAN

V.

JULIE W. BRIGHT, ET AL.

_______________________________ Salmon, Eyler, Deborah S. Smith, Marvin H. (Ret., Specially Assigned), JJ. _______________________________ Opinion by Salmon, J.

Filed: August 31, 2001

In PaineWebber Inc. v. East, 363 Md. 408 (2001), the Court of Appeals affirmed this Court's decision in East v. PaineWebber Inc., 131 Md. App. 302 (2000). The two main questions raised East

in the case sub judice arise as a consequence of the decision, viz: 1. Was the issue decided in East either raised or decided in the lower court and thus preserved for our review? If the answer to Question 1 is "yes," does application of the principles of law enunciated by the Court of Appeals in East require us to reverse the judgment in the case at hand?

2.

We hold that the issue discussed in East was neither raised by appellant in the trial court nor decided by the trial judge. Thus, the issue was not appropriately preserved for appellate review. See Md. Rule 8-131(a). But even if the issue had been

preserved, we would still have affirmed the decision of the trial judge when he granted as summary East judgment case in is favor of

appellees,

inasmuch

the

factually

distinguishable from the case sub judice.

I.

PROCEDURAL BACKGROUND

Appellant, Jacklyn Kay Heineman ("Kay"), is the widow of G. Wendel Heineman ("Wendel"), who died testate on July 11, 1992.

In his will, Wendel bequeathed his entire estate to his four daughters, except for a beneficial interest in a trust given to his former wife, Doris Heineman ("Doris"), in compliance with a judgment of absolute divorce and property settlement agreement.

On April 8, 1996, Kay filed an amended complaint in the Circuit Court for Baltimore County against the personal

representatives of Wendel's estate and Doris.

Count I of the

amended complaint asked the court to declare her (Kay's) rights under the Heineman Company, Ltd. Defined Benefit Plan and Trust ("the Trust" or "the Plan"), which the amended complaint

described as "an ongoing pension plan as described in Section 401 et. seq. of the Internal Revenue Code of 1986, as amended."

In the amended complaint, Kay alleged that she and Wendel were married on October 27, 1989, and that, prior to the

marriage, she and Wendel entered into a pre-nuptial agreement. Some of the relevant provisions of the pre-nuptial agreement were described in Kay's amended complaint as follows: 13. In paragraphs 1, 2 and 4 of the PreNuptial Agreement, Plaintiff and Decedent waived, released and relinquished all right, title, estate and interest, statutory or otherwise, in all property owned by the other party at the time of their marriage or 2

acquired by either of them at any time after their marriage and in the estate of the other party upon his or her death. Specifically, paragraph 4 of the Pre-Nuptial Agreement included the following waiver: The parties hereby expressly waive any legal right either may have under any Federal or state law as a spouse to participate as a payee or beneficiary under any interest the other may have in any pension plan, profit sharing plan, or any other form of retirement or deferred income plan, including, but not limited to, the right either spouse may have to receive any benefit in the form of a lump sum death benefit, joint or survivor annuity or pre-retirement survivor annuity pursuant to any state or Federal law. 14. It is the Plaintiff's contention that the language and substance of the aforementioned Prenuptial Agreement is insufficient as a matter of law to waive Plaintiff's rights and/or interests as the sole beneficiary of the Plan due to the fact that it fails to satisfy the statutory spousal right waiver requirements set forth in Internal Revenue Code, 26 U.S.C.

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