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Rubino v. Rubino

Court of Appeals of Virginia

January 20, 2015

JULIE A. RUBINO
v.
JUSTIN RUBINO

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH. A. Bonwill Shockley, Judge.

Reversed and remanded.

George A. Christie (Jennifer L. Fuschetti; Christie, Kantor, Griffin & Smith, P.C., on briefs), for appellant.

Norman A. Thomas (Mykell L. Messman; Messman Law PLC, on brief), for appellee.

Present: Judges Humphreys, McCullough and Senior Judge Haley.

OPINION

Page 261

[64 Va.App. 258] ROBERT J. HUMPHREYS, JUDGE

Julie A. Rubino (" mother" ) appeals a child custody order entered by the Virginia Beach Circuit Court (the " circuit court" ) on October 18, 2013, which awarded primary physical custody of the two minor children to Justin Rubino (" father" ) [64 Va.App. 259] unless mother relocated to the Virginia Beach area, in which case, the parties were to have shared physical custody. Father and mother were awarded joint legal custody of both minor children. In support of her appeal, mother asserts the following three assignments of error:

(1) " The trial court erred in relying on the Virginia Military Parents Equal Protection Act, Sections 20-124.7 through 20-124.10 of the Code of Virginia, in making a child custody determination; "
(2) " The trial court erred in making a child custody determination without providing a case-specific explanation of the best interests of the children; " and
(3) " The trial court erred by making a child custody determination contrary to the best interests of the children."

Page 262

For the reasons set forth below, this Court reverses the circuit court's decision and remands this case to the circuit court to determine the best interests of the children without consideration of the Virginia Military Parents Equal Protection Act.

I. BACKGROUND

Father and mother were married on December 11, 2004 in Allentown, Pennsylvania. Father is an officer in the United States Navy who had approximately eighteen years of service at the time of the custody hearing in August 2013. In October 2006, the couple moved to Virginia Beach from South Carolina on orders from the United States Navy. Father and mother's first child was born on June 5, 2008 in Virginia Beach. Their second child was born on April 24, 2010 in Virginia Beach.

Father received orders from the U.S. Navy for a two-year tour in Bahrain to begin in June 2012. Father chose the Bahrain assignment because he was permitted to bring his family and would not be required to deploy or be away from his family while stationed in Bahrain. While mother initially refused to go to Bahrain, she eventually agreed to accompany father to Bahrain with the children. In April 2012, mother again refused to move to Bahrain with father. Because his [64 Va.App. 260] family would no longer be accompanying him to Bahrain, father adjusted his assignment from two years to one year. Despite the couple's separation since February 2012, mother and father continued to live in their primary residence together with both children until father began training in Rhode Island in May 2012 for his subsequent move to Bahrain.

In anticipation of father's deployment, the circuit court held a pendente lite hearing on May 25, 2012 to determine whether mother should return to Allentown, Pennsylvania with the children or whether father should bring the children to Bahrain. The circuit court awarded primary physical custody of the children to mother, pendente lite, without restrictions to Virginia or Pennsylvania and with liberal visitation of two thirds of all times father was present within the United ...


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