                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


HELEN M. BROCCUTO
                                         MEMORANDUM OPINION * BY
v.   Record No. 0661-02-1              JUDGE WALTER S. FELTON, JR.
                                            OCTOBER 29, 2002
JAMES C. BROCCUTO


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          Frederic L. Moschel (Lisa A. Mallory;
          Moschel, Gallo & Clancy, L.L.C., on brief),
          for appellant.

          W. Dean Short, II (Short, Short, Telstad &
          Kerr, P.C., on brief), for appellee.


     Helen Broccuto contends on appeal that the trial court erred

(1) in considering the home studies of each party, which were not

introduced into evidence; (2) in ruling that James Broccuto was

the natural father of Caitlin Broccuto; and (3) in awarding

custody of Caitlin to Mr. Broccuto.   In consideration of the

paternity issue, Vincent Barnett requests that the Court dismiss

him as a party to this appeal for improper notice and Ms.

Broccuto's untimely filing of the amended notice of appeal.     Prior

to oral argument, counsel for the parties requested the Court to

affirm the trial court's ruling regarding the paternity issue,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
rendering the motion to dismiss filed by Vincent Barnett moot, and

no longer before the Court for consideration.      For the following

reasons we affirm the judgment of the trial court.

                            I.   BACKGROUND

                  A.    DIVORCE, CUSTODY, PATERNITY

     On April 8, 1993, James and Helen Broccuto were married.

The following year they separated.       During that separation, Ms.

Broccuto discovered she was pregnant.      In February 1995, the

Broccutos reconciled and on July 25, 1995, Caitlin Victoria

Broccuto was born.     A birth certificate was issued naming Mr.

Broccuto as the natural father.

     Subsequent to Caitlin's birth, the Broccutos separated

several times.   Upon each separation, they executed a property

settlement agreement that, among other things, acknowledged

Caitlin was a child of the marriage and recognized Mr. Broccuto

as her natural father.    On May 16, 2000, the Broccutos separated

for the final time.    Mr. Broccuto filed a bill of complaint on

June 7, 2000, requesting a divorce and custody of the child.

     In her answer to the bill of complaint, Ms. Broccuto

acknowledged that Caitlin was born of the marriage, but alleged

that Mr. Broccuto was not her biological father.       A pendente

lite hearing was held in the Newport News Circuit Court.       Among

other things, it ordered that Mr. and Ms. Broccuto have joint

custody of Caitlin, with Mr. Broccuto having physical custody.

Additionally, Ms. Broccuto was directed to pay child support in

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the amount of $160 per month, paid in two equal installments.

Lastly, a home study was ordered for both Mr. and Ms. Broccuto.

     On June 12, 2000, five days after Mr. Broccuto filed his

bill of complaint, Ms. Broccuto filed a petition in the Newport

News Juvenile and Domestic Relations District Court seeking to

have Caitlin's paternity determined.    Ms. Broccuto alleged that

Vincent Barnett was Caitlin's biological father.     The juvenile

and domestic relations district court denied the petition, and

Ms. Broccuto appealed to the circuit court.      The circuit court

ordered the paternity test to be performed.      On January 5, 2001,

the paternity test results showed, with a 99.97% probability,

that Mr. Barnett was Caitlin's biological father.

     On July 3, 2001, a hearing was held in the circuit court

regarding both the paternity appeal from the juvenile and

domestic relations district court and the custody aspect of the

divorce action.   The court awarded Mr. Broccuto a divorce a

vinculo matrimonii, custody of Caitlin, and held that he was

Caitlin's natural father.

                      B.    PROCEDURAL HISTORY

     On February 12, 2002, the circuit court's ruling was

reduced to writing.   Three orders were prepared for endorsement,

an order for the paternity appeal from the juvenile and domestic

relations district court, a final divorce decree a vinculo

matrimonii for the divorce and custody matter, and a final order

incorporating the paternity determination, custody, and child

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support.   At the hearing, Ms. Broccuto's attorney objected to

the orders.

           MR. HOLLAND [Ms. Broccuto's attorney]: The
           paternity test was done. Mr. Barnett was
           found to be the father by the evidence in
           the paternity test and, accordingly, I
           object to the orders providing that Mr.
           Broccuto is the natural father of the infant
           child. I object to the Court's naming Mr.
           Broccuto – ordering that Mr. Broccuto be
           named on the birth certificate, and I object
           to the Court's relieving Mr. Barnett of his
           obligation to support his child.

           THE COURT: All right, sir. I'm going to
           leave it as I ruled back on July the 3rd.
           If you will endorse the order seen and
           objected to.

Ms. Broccuto's attorney noted his objection in writing as part

of his endorsement of the court orders.

     On March 14, 2002, Ms. Broccuto timely noticed an appeal to

the order granting the final decree of divorce a vinculo

matrimonii.   Mr. Broccuto was the only other party named.   On

April 9, 2002, more than thirty days after entry of the final

order, Ms. Broccuto filed an amended notice of appeal.

     The amended notice of appeal seeks review, not only of the

final decree of divorce a vinculo matrimonii, but also the final

order of the trial court entered on February 12, 2002,

determining, among other things, that Mr. Broccuto is the

natural father of Caitlin.   The amended notice of appeal also

seeks to join Mr. Barnett as a party.




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            II.    HOME STUDY REPORTS AND CHILD CUSTODY

     Ms. Broccuto argues that the trial court erred in

considering the home studies of each party, which were not

entered into evidence, and erred in awarding custody of Caitlin

to Mr. Broccuto.   Ms. Broccuto did not preserve the home study

reports or child custody issues at trial.      However, she relies

on the ends of justice exception found in Rule 5A:18 to proceed

on the merits.    That reliance is misplaced.

     Rule 5A:18 provides in pertinent part that:

          [n]o ruling of the trial court . . . will be
          considered as a basis for reversal unless
          the objection was stated together with the
          grounds therefor at the time of the ruling
          except for good cause shown or to enable the
          Court of Appeals to attain the ends of
          justice.

"[T]he ends of justice exception is narrow and is to be used

sparingly . . . . "    Brown v. Commonwealth, 8 Va. App. 126, 132,

380 S.E.2d 8, 11 (1989).    "Whether we apply the bar of Rule

5A:18 or invoke the ends of justice exception, we must evaluate

the nature and effect of the error to determine whether a

miscarriage of justice occurred.     We must determine whether the

error clearly had an effect upon the outcome of the case."      Id.

at 131, 380 S.E.2d at 10.

                           A.   HOME STUDIES

     The trial court's consideration of the home study reports

did not have an effect upon the outcome of the case.      In

reviewing the home studies reports, the trial court indicated

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that they had not altered its thinking.   In prior hearings, the

court heard much of the same information as found in the

respective reports of the home studies.   In rendering its

decision, the court stated:

          In this case, I've heard a lot of this
          evidence previously. I have studied the
          home studies. I have the testimony from
          previous hearings. Nothing much is new.
          And the Court had pretty much made its mind
          up before it came in here this morning.
          That's not to say I didn't listen to you. I
          understood every word you said. But nothing
          that has been said this morning changed my
          mind about what I have seen previously and
          what has been in the studies that the Court
          has received from the home studies.

Since the home studies did not have an effect on the outcome of

the case, the ends of justice exception does not apply.

                 B.   CHILD CUSTODY DETERMINATION

     The trial court's determination of custody did not amount

to a miscarriage of justice.   Thus, the ends of justice

exception does not apply.   During the course of the divorce

proceedings, the court was presented with considerable evidence

relating to the factors enumerated in Code § 20-124.3. 1    For

example, it heard evidence of abuse of Ms. Broccuto at the hands

of her boyfriend, which required a restraining order.      It heard

of the relationship between Mr. and Ms. Broccuto and Caitlin,


     1
       Code § 20-124.3 enumerates several factors the court must
consider when deciding the best interests of the child for the
purposes of determining custody.



                               - 6 -
the relationship between Caitlin and her grandparents, the

involvement of both parties in Caitlin's development, and the

propensity of each party to actively support Caitlin's contact

and relationship with the other.    Taking these and other factors

into consideration, the court did not abuse its discretion in

determining that it was in Caitlin's best interest to be in Mr.

Broccuto's custody.   For those reasons, we affirm the trial

court's determination of custody.

                       III.   Paternity Issue

     Prior to oral argument, counsel for Ms. Broccuto, Mr.

Broccuto and Vincent Barnett requested that the Court affirm the

trial court's ruling that James C. Broccuto is the natural

father of Caitlin Broccuto.   We grant the parties' request and

affirm the trial court's ruling on the paternity issue.

     Because we affirm the trial court's ruling on the paternity

issue, the motion filed by Vincent Barnett to dismiss him from

the proceedings is moot and no longer before the Court for

consideration.

                                                          Affirmed.




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