Julie A. Rubino v. Justin Rubino
64 Va. App. 256
| Va. Ct. App. | 2015Background
- Parents (Justin and Julie Rubino) separated; father is a U.S. Navy officer with prior orders to Bahrain (family-permitted) and later orders to Norfolk/Virginia Beach; mother moved to Allentown, PA after pendente lite custody award.
- Pendente lite (May 25, 2012) awarded primary physical custody to mother; father had liberal visitation when in the U.S.; mother returned to Allentown after father deployed to Bahrain.
- June 2013 temporary modification set a two-week rotating custody schedule (father two weeks, mother two weeks).
- Full custody hearing held Aug. 19–20, 2013; circuit court awarded primary physical custody to father unless mother relocated to Virginia Beach area, in which case custody would be shared; joint legal custody awarded.
- Circuit court expressly relied on the Virginia Military Parents Equal Protection Act (the Act) in its October 18, 2013 final order, finding father’s Navy orders created a “special circumstance.”
- Mother appealed, arguing the court improperly relied on the Act (inapplicable), failed to give a case-specific best-interests explanation, and reached a custody result contrary to children’s best interests.
Issues
| Issue | Rubino (mother) Argument | Justin (father) Argument | Held |
|---|---|---|---|
| Whether the circuit court may rely on the Virginia Military Parents Equal Protection Act in making a permanent custody determination | The Act is inapplicable because father wasn’t deployed as defined by the Act; reliance on it was an improper legal factor | The transcript shows the court did not actually apply the Act; any reliance does not warrant reversal | Reversed: court abused discretion by giving significant weight to an inapplicable statute; Act does not apply here |
| Whether the circuit court provided a case-specific explanation of the best interests decision | The court failed to identify the fundamental reasons for its ruling | Father argued the court’s explanation and order were adequate | Held: the court did provide case-specific findings tied to statutory factors (not boilerplate) despite error on Act issue |
| Whether the custody decision was contrary to the children’s best interests | The custody award relied primarily on the Act and thus was improper; custody must be re-determined without the Act | Father argued remand is improper because mother sought a final judgment awarding her custody and residence in PA | Court remanded: because the Act improperly drove the decision, the lower court must reweigh Code § 20-124.3 factors without considering the Act |
| Whether appellate remedy of remand was barred because appellant sought a specific final remedy | Mother’s requested relief does not waive remand; Rule 5A:20(f) does not preclude reversal and remand | Father argued mother’s specific requested relief waived remand | Held: remand appropriate; appellate court empowered to reverse and remand under Code § 8.01-681 when ends of justice require it |
Key Cases Cited
- Farley v. Farley, 9 Va. App. 326 (1990) (best interests of the child are paramount; trial custody determinations reversed only for abuse of discretion)
- Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346 (2011) (three principal ways a court abuses discretion identified)
- Wymer v. Commonwealth, 12 Va. App. 294 (1991) (appellate presumption that trial court judgment is correct; view facts in light favorable to prevailing party below)
- Congdon v. Congdon, 40 Va. App. 255 (2003) (appellate view of facts and inferences favoring prevailing party below)
- McBride v. Commonwealth, 24 Va. App. 30 (1997) (court speaks through its orders; orders presumed to reflect proceedings)
- Kane v. Szymczak, 41 Va. App. 365 (2003) (trial court must identify fundamental, predominating reasons for custody decision)
- Sullivan v. Knick, 38 Va. App. 773 (2002) (court need not quantify weight given to each statutory factor)
- Lanzalotti v. Lanzalotti, 41 Va. App. 550 (2003) (court must provide more than boilerplate that statutory factors were considered)
- Cloutier v. Queen, 35 Va. App. 413 (2001) (court may consider parental interests only to the extent they independently benefit the child)