Helen M Broccuto v. James C Broccuto ( 2002 )

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.
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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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