                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, McCullough and Senior Judge Haley
PUBLISHED


            Argued by teleconference


            JULIE A. RUBINO
                                                                               OPINION BY
            v.     Record No. 0595-14-1                                 JUDGE ROBERT J. HUMPHREYS
                                                                             JANUARY 20, 2015
            JUSTIN RUBINO


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

                           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.


                   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”) 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.”
       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 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

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United States. After father deployed to Bahrain, mother moved back to her childhood home of

Allentown, Pennsylvania with the children.

       On June 10, 2013, after father had returned to the United States from his tour in Bahrain,

the circuit court modified the May 25, 2012 pendente lite order and provided that father and

mother shall alternate visitation/physical custody of the children. Beginning on June 30, 2013

through July 13, 2013, father would have physical custody of the children, with the subsequent

two weeks to mother. The parents were to continue on that schedule until the circuit court

modified the arrangement.

       The circuit court held a two-day hearing on child custody on August 19 and 20, 2013.

The circuit court ultimately awarded primary physical custody to father unless mother relocated

to the Virginia Beach area, in which case, the parties were to have shared physical custody of

both minor children. In delivering its decision, the circuit court discussed the Virginia Military

Parents Equal Protection Act (the “Act”) from the bench and specifically applied the Act in the

final custody order.

       The Act provides special protections for deploying military parents with respect to child

custody and visitation rights during the time the military parent is deployed. For example, the

Act allows military parents to file a motion with the circuit court prior to deployment to delegate

a portion of their visitation rights to other family members during the period of deployment.

Code § 20-124.8(B)(1). The Act also provides an expedited hearing in the event that no custody

order is in place at the time a military parent is scheduled to deploy. Code § 20-124.9(A).

Additionally, the Act mandates that temporary orders entered pursuant to the Act shall require

the non-deploying parent to “reasonably accommodate the leave schedule of the deploying

parent or guardian,” and “facilitate opportunities for telephonic and electronic mail contact




                                               -3-
between the deploying parent or guardian and the child during the deployment period.” Code

§ 20-124.10.

       At the August 28, 2013 hearing, the court explained from the bench,

               I will acknowledge that the temporary order does not satisfy
               strictly the requirements under [the Act] requirements for military.
               But it also doesn’t escape me . . . this code section does carve out
               particular protections for the military going places on orders. And
               it doesn’t escape me that the intent of the [G]eneral [A]assembly
               . . . that they are trying to protect the military parent from being at
               a disadvantage in a custody issue when they come back.

The final custody order, signed by the court on October 18, 2013, stated, “Father’s United States

Navy orders to Virginia Beach create a special circumstance which provide him with special

protection provided by the Virginia Military Parents Protection Act.” This appeal follows.

                                              II. ANALYSIS

                      A. The Virginia Military Parents Equal Protection Act

       Unless statutorily directed otherwise by the General Assembly, in matters involving child

custody, visitation, and related childcare issues, the court’s paramount concern is always the best

interests of the child. Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). A

trial court’s determination of a child’s best interests “is reversible on appeal only for an abuse of

that discretion, and a trial court’s decision will not be set aside unless plainly wrong or without

evidence to support it.” Id. at 327-28, 387 S.E.2d at 795.

       The Virginia Supreme Court has identified three principal ways by which a circuit court

abuses its discretion: “when a relevant factor that should have been given significant weight is

not considered; when an irrelevant or improper factor is considered and given significant weight;

and when all proper factors, and no improper ones, are considered, but the court, in weighing

those factors, commits a clear error of judgment.” Landrum v. Chippenham & Johnston-Willis

Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011). On appeal, the judgment of the

                                                -4-
circuit court is presumed to be correct. Wymer v. Commonwealth, 12 Va. App. 294, 296, 403

S.E.2d 702, 704 (1991). This Court views the facts, and all reasonable inferences from those

facts, in the light most favorable to the party prevailing below. Congdon v. Congdon, 40

Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).

       Mother’s first assignment of error asserts that the circuit court abused its discretion by

relying on the Act, an inapplicable statute, in reaching its custody determination. Specifically,

mother argues that the circuit court extrapolated particular protections to military personnel from

the Act and determined those extrapolated protections were necessary and proper considerations

in the determination of child custody. The salient question we must resolve in this case is

whether or not the circuit court properly considered the Act as part of a custody and visitation

decision otherwise based solely on the best interests of the children. For the reasons that follow,

we agree with mother that it did not.

       First, both mother and father concede the Act does not apply to these parties or this case.

The Act only applies to situations where one parent, with a child under the age of eighteen,

deploys in accordance with military orders. The Act, which was enacted in 2008, specifically

defines deployment as “compliance with military orders received by a member of the United

States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve

component thereof to report for combat operations or other active service for which the

deploying parent or guardian is required to report unaccompanied by any family member.” Code

§ 20-124.7. Father’s previous orders to Bahrain from June 2012 through June 2013 permitted his

family to accompany him. Father’s assignment in the U.S. Navy at the time of the hearing was

the Norfolk/Virginia Beach area and also allowed his family to accompany him. Therefore, the

Act is inapplicable to this case because father was not deployed at the time of the hearing, as

defined by the Act.

                                               -5-
       In determining the best interests of a child for purposes of custody or visitation, the Code

mandates that the circuit court shall consider ten enumerated factors. Code § 20-124.3. The

circuit court considered, analyzed, and applied the Act under the “catchall” factor of subsection

10 of Code § 20-124.3.1 The Act temporarily alters custody and visitation arrangements during

the period of time a military parent is deployed to an area of military operations where

dependents are not permitted to reside. While the Act provides military parents protection from

alienation from the child while the military parent cannot exercise visitation and does allow for

visitation to be coordinated with his or her leave time, the Act does not establish a generalized

preference for the military parent for purposes of child custody or visitation. See Code

§§ 20-124.8 to -124.10.2 Significantly, the Act does not contemplate any of the statutorily


       1
          Subsection 10 of Code § 20-124.3 provides that, in addition to the other enumerated
factors, in fashioning a custody or visitation order a court shall also consider “Such other factors
as the court deems necessary and proper to the determination.”
       2
        “Any court order limiting previously ordered custodial or visitation rights of a
deploying parent or guardian due to the parent’s or guardian’s deployment shall specify the
deployment as the basis for the order and shall be entered by the court as a temporary order. . . .”
Code § 20-124.8(A) (emphasis added).

                        The court, on motion of the deploying parent or guardian
               to delegate visitation to a family member, including a stepparent,
               with whom the child has a close and substantial relationship and
               upon finding that such delegation is in the best interests of the
               child, may enter an order delegating visitation that [d]elegates all
               or a portion of the deploying parent's or guardian's visitation rights
               to such family member . . . .

Code § 20-124.8(B)(1).

                        If no court order exists as to the custody, visitation, or
               support of a child of a deploying parent or guardian, any petition
               filed to establish custody, visitation, or support for a child of a
               deploying parent or guardian shall be so identified at the time of
               filing by the deploying parent or guardian to ensure that the
               deploying parent or guardian has access to the child, and that
               reasonable support and other orders are in place for the protection

                                                -6-
proscribed factors to be considered by the circuit court when it ultimately makes a final and

permanent custody determination. See id.

       This Court has held that the circuit court may only consider the interest of the parents

when benefits to the custodial parent also independently benefit the children. Cloutier v. Queen,

35 Va. App. 413, 430, 545 S.E.2d 574, 583 (2001). In this case, the circuit court considered that

father was not in a position to move away from the Virginia Beach area due to his military orders

and that mother had signed a lease and had a job in Allentown, Pennsylvania. In delivering the

custody decision, the circuit court explained,

                       I will acknowledge that the temporary order does not
               satisfy strictly the requirements under [the Act] requirements for
               military. But it also doesn’t escape me . . . this code section does
               carve out particular protections for the military going places on
               orders. And it doesn’t escape me that the intent of the [G]eneral
               [A]ssembly . . . that they are trying to protect the military parent
               from being at a disadvantage in a custody issue when they come
               back.




               of the parent-child or guardian-child relationship . . . [s]uch
               petition shall be expedited on the court’s docket in accordance
               with § 20-108.

Code § 20-124.9(A).

                        Any order entered pursuant to § 20-124.8 shall provide that
               (i) the nondeploying parent or guardian shall reasonably
               accommodate the leave schedule of the deploying parent or
               guardian, (ii) the nondeploying parent shall facilitate opportunities
               for telephonic and electronic mail contact between the deploying
               parent or guardian and the child during the deployment period, and
               (iii) the deploying parent or guardian shall provide timely
               information regarding his leave schedule to the nondeploying
               parent or guardian.

Code § 20-124.10.

                                                 -7-
The final custody order manifests the court’s reasoning for the custody determination, “Father’s

United States Navy orders to Virginia Beach create a special circumstance which provide him

with special protection provided by [the Act].”

       Though father argues that the transcript of the proceeding makes clear that the circuit

court did not apply the Act in its custody determination, it is well settled law in Virginia that a

“court speaks through its orders and those orders are presumed to accurately reflect what

transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). The

circuit court’s final order reflecting reliance on an inapplicable statute constituted an error of

law. As such, the circuit court’s consideration and significant weight afforded to the Act in

determining custody constituted an abuse of discretion.

                      B. Case-Specific Explanation of the Best Interests of the Children

       Mother’s second assignment of error claims that the circuit court erred by failing to

provide a case-specific explanation of the best interests of the children. Code § 20-124.3

requires the circuit court to “communicate to the parties the basis of the decision either orally or

in writing.” This Court has held this requirement to mean that the circuit court must identify the

fundamental, predominating reason or reasons underlying its decision. Kane v. Szymczak, 41

Va. App. 365, 372-73, 585 S.E.2d 349, 353 (2003). This level of specificity does not require the

circuit court to address all aspects of the decision-making process or “to quantify or elaborate

exactly what weight or consideration it has given to each of the statutory factors.” Sullivan v.

Knick, 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002). However, the circuit court must

provide more to the parties than boilerplate language or a perfunctory statement that the statutory

factors have been considered. Lanzalotti v. Lanzalotti, 41 Va. App. 550, 555, 586 S.E.2d 881,

883 (2003).




                                                 -8-
       In this case, the record is clear that the circuit court provided more than just the

boilerplate language that the factors were considered. During the August 28, 2013 hearing, the

court listed each statutory factor with reference to specific facts of the case and concluded,

               What’s in the best interest of the children is to have both of these
               parents available to them on a regular basis, not just a visitation
               basis . . . I want to give custody to both of them, but in order to do
               that, she is going to have to come back here.

The circuit court also applied specific facts from the case to each statutory factor in the final

custody order. While the circuit court improperly relied upon the Act under factor ten of Code

§ 20-124.3, as discussed above, the circuit court did consider each statutory factor and expressly

communicated the reasons underlying its decision to the parties. Therefore, with respect to this

assignment or error, the circuit court did not abuse its discretion.

                          B. Best Interest of the Children Determination

       Mother’s third assignment of error asserts that the circuit court erred by making a child

custody determination contrary to the best interests of the children. The circuit court addressed

the ten factors set forth in Code § 20-124.3 and included facts regarding each in the final custody

order. Because the circuit court found that the other nine factors did not clearly favor one parent

over the other with regard to custody, the circuit court’s consideration of the Act under the

“catchall” factor in Subsection 10 of Code § 20-124.3 served as the primary basis of the court’s

custody decision. Specifically, the final custody order states, “Father’s United States Navy

orders to Virginia Beach create a special circumstance which provide him with special protection

provided by [the Act].” As discussed above, the Act does not apply to these parties or this case

because father was not deployed, as defined by the Act, at the time of the hearing. Further, the

Act offers protection for deploying military parents on a temporary basis. The Act is not

applicable to permanent or final custody orders. See Code §§ 20-124.8 to -124.10.



                                                 -9-
       Because we are remanding this case to the circuit court and because in determining child

custody matters, “the court’s paramount concern is always the best interests of the child,” Farley,

9 Va. App. at 327-28, 387 S.E.2d at 795, we need not consider this assignment of error further

since the circuit court will necessarily need to reconsider all of the statutory factors in Code

§ 20-124.3, without reliance on the Act, when making its custody determination.

                                   D. Remedies Available to Appellant

       Father argues that even if this Court holds that the circuit court erred, this Court is not

permitted to remand the case. Specifically, father claims that because mother sought the specific

relief of a reversal of the circuit court’s child custody determination with a mandate for her

primary physical custody and residence in Pennsylvania, mother has waived the remedy of

remand to the circuit court by operation of Rule 5A:20(f). While this argument is a novel one,

we are unpersuaded by it.

       Rule 5A:20(f) simply requires an appellant to provide a “short conclusion stating the

precise relief sought.” Father is unable to point to any statutory authority or case law to support

his position that this Court is unable to exercise its authority to reverse and remand this case to

the circuit court simply because mother requested this Court enter a final judgment. Conversely,

the Code clearly states this Court’s power to reverse orders and remand matters to a lower court.

               The appellate court shall affirm the judgment if there is no error
               therein, and reverse the same, in whole or in part, if erroneous, and
               enter such judgment as to the court shall seem right and proper
               and shall render final judgment upon the merits whenever, in the
               opinion of the court, the facts before it are such as to enable the
               court to attain the ends of justice. A civil case shall not be
               remanded for a trial de novo except when the ends of justice
               require it, but the appellate court shall, in the order remanding the
               case, if it be remanded, designate upon what questions or points a
               new trial is to be had.

Code § 8.01-681 (emphasis added). Contrary to father’s assertion, the statute does not indicate

that a remand to a lower court is a remedy that can be waived by an appellant. This Court,
                                                - 10 -
finding error, shall reverse and remand the case, upon a finding that the ends of justice require a

trial de novo. We so find and order that the case be reversed and remanded to the circuit court to

make a custody determination excluding consideration of the Act.3

                                           III. CONCLUSION

       For the reasons stated above, this Court reverses the circuit court’s ruling on child

custody, finding the circuit court abused its discretion by considering and affording an

inapplicable statute significant weight in its custody determination. We remand this case to the

circuit court with instructions to make a child custody determination based upon the best

interests of the children, articulated in Code § 20-124.3, without consideration of the Act.

                                                                           Reversed and remanded.




       3
         Mother requested this Court reverse the trial court and “permit [mother] to return to
Allentown with her children.” Whether mother should be permitted to do so is a decision
properly in the province of the circuit court upon remand and reconsideration of custody
consistent with this opinion.
                                                - 11 -
