                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia


TERRY R. RYCHLIK
                                              MEMORANDUM OPINION *
V.   Record No. 0903-97-4                         PER CURIAM
                                               FEBRUARY 3, 1998
JEANETTE RIFFE


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Gerald Bruce Lee, Judge
          Stephen Andrew Armstrong for appellant.

          Raymond D. Kline for appellee.



     In this appeal Terry R. Rychlik (father) appeals the denial

of his petition for change of custody of his son.   Father

contends that the trial court abused its discretion in continuing

custody of the child with Jeanette Riffe (mother) and restricting

father's presentation of proof at trial.   We find no error and

affirm.

     On December 12, 1994, the Juvenile and Domestic Relations

District Court for the County of Fairfax awarded custody of the

child to mother.   Father subsequently filed a petition on July

25, 1996 in the juvenile and domestic relations district court,

alleging the child had been sexually abused by another child who

was cared for in the day care center the parties' child attended

and that the child suffered physical and mental abuse.    He

petitioned the court for sole custody, or, in the alternative,
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
increased visitation and a change in day care provider.     The day

care provider in question was the child's maternal grandmother.

The petitions were denied.

     Father appealed to the circuit court which found that

father's allegations of abuse or neglect had "no evidentiary

basis," that "the best interests of the child are served by

maintaining the current custodial arrangement," and that "there

has been no change of circumstances which would, when analyzed in

conjunction with evaluation of what is in the best interests of

the child, justify a change of custody."   Father filed a Motion

to Reconsider, which the court denied.   In essence, father

presents two issues for this Court to address, viz, whether the

court abused its discretion in denying his petition for a change

of custody and whether father's right to a fair trial was denied.

                                I.

                Modification of Child Custody Order

     A decision on whether to modify a child custody order is

committed to the sound discretion of the trial court.     Wilson v.

Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 696 (1994) (citing

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,

11 (1986)).   In assessing whether a change in custody is

warranted, a trial court applies a two-pronged test:    "(1)

whether there has been a change of circumstances since the most

recent custody award; and (2) whether such a change would be in

the best interests of the child."    Hughes v. Gentry, 18 Va. App.




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318, 321, 443 S.E.2d 448, 450 (1994) (citing Keel v. Keel, 225

Va. 606, 611, 303 S.E.2d 917, 921 (1983)).   As the party seeking

a modification of the child custody order, father bore "'the

burden of proving, by a preponderance of the evidence, a material

change in circumstances justifying a modification of the

decree.'"   Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d

559, 561 (1993) (quoting Yohay v. Ryan, 4 Va. App. 559, 565-66,

359 S.E.2d 320, 324 (1987)).    A trial court's determination of

whether a change of circumstances exists and its evaluation of

the best interests of the child will not be disturbed on appeal

if the court's findings are supported by credible evidence.
Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1991);

Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)

(citing Moyer v. Moyer, 206 Va. 899, 904, 147 S.E.2d 148, 152

(1966)).

     Father first contends that the trial court ignored the

evidence of sexual and physical abuse, consisting of testimony

that abrasions, present on the child's anus, were consistent with

digital penetration and that the child had bruises on his

buttocks, and bruises and insect bites on his legs.   A statement

from the child regarding the alleged sexual abuse was also

admitted.

     However, the evidence of sexual and physical abuse was

inconclusive and in conflict.   The investigating police officer

testified that he had fully investigated the allegations of



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sexual abuse and had not found enough evidence to proceed.   Two

social workers testified that they had investigated the

allegations of physical abuse and neglect arising from the

bruises and bites, but dismissed the claims as unfounded.    Mother

presented testimony that the bruises and insect bites were not

out of the ordinary for a child of such age.   Finally, the court

heard evidence that, at the time of trial, mother had transferred

the child to a new day care provider.   Viewing the evidence in

the light most favorable to the mother, as we are required to do,

see Wilson, 18 Va. App. at 194, 442 S.E.2d at 695 (citing Martin

v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App. 15, 20,

348 S.E.2d 13, 16 (1986)), and giving deference to the trial

court's resolution of the conflicts in the evidence, see Bell

Atlantic Network Servs. v. Virginia Employment Comm'n, 16 Va.

App. 741, 746, 433 S.E.2d 30, 33 (1993), we find the trial court

did not abuse its discretion in finding that neither sexual nor

physical abuse had occurred.

     After determining that no change in circumstances had

occurred since the most recent custody order, the trial court

found that a change in custody was not in the best interests of

the child.   Father contends on appeal that the court erred by

basing its determination of the best interests of the child on a

"tender years" presumption in favor of mother and that the error

violated his right to due process.   It is well established that

the presumption that a child of tender years should be in the



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care of his or her mother has been abolished in Virginia.     See

Code § 31-15; Visikides, 3 Va. App. at 72, 348 S.E.2d at 42.     We

find the trial court did not violate this principle.   In arriving

at its conclusion, the trial court reviewed each of the statutory

factors for determining the best interests of the child as

outlined in Code § 20-124.3; indeed, we find the record "is

replete with findings as to the enumerated factors."   Wilson, 18

Va. App. at 195, 442 S.E.2d at 696.   Furthermore, it contains no

evidence whatsoever that the court relied on the tender years

doctrine, and father does not cite any.
     Finally, father argues that the court's custody ruling is

internally inconsistent, contending that the court entered a

ruling contrary to the trial court's own findings of fact that

the child suffered a personality change.   The record fails to

support this contention.   In its ruling from the bench, the court

simply noted that "the father observed certain changes in his

son's behavior in and around July 1996" which led the father to

contact Child Protective Services regarding the allegations of

sexual abuse.   The court made no specific finding that the child,

in fact, suffered from a change of personality as father

contends.

      Accordingly, we find that the court acted within its

discretion in determining that the best interests of the child

were not served by a change in custody.

                                II.



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                       Presentation of Evidence

        Father argues that the trial court abused its discretion by

scheduling the trial six months after the judgment of the

domestic relations court, and by only allotting three hours for

the trial.    Issues related to control of a court's docket are

committed to the sound discretion of the court, and will not be

reversed on appeal unless there is a showing of an abuse of

discretion and prejudice to the party seeking a different trial

date.     See Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252

(1986) (citing Autry v. Bryan, 224 Va. 451, 454, 297 S.E.2d 690,

692 (1982)).    We find father's claims to be without merit.

        Father neither explains how the trial court abused its

discretion in setting the trial date nor how he was prejudiced as

a result of the trial date he was given.    "'We will not search

the record for errors in order to interpret [a party's]

contention and correct deficiencies in a brief.'"     Gottlieb v.

Gottlieb, 19 Va. App. 77, 85-86, 448 S.E.2d 666, 671 (1994)

(quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d
237, 239 (1992)).

        Father's argument that he was prejudiced when he was

confined to presenting his case in three hours is not supported

by the record.    Although father argues that the three hour trial

prevented the court from considering his alternative claims, his

petition to change day care provider was clearly moot, as mother

had effected a satisfactory change of day care providers four




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months prior to the trial.   Furthermore, father failed to raise

the issue of increased visitation at trial and failed to address

it in his Motion to Reconsider.   Father is thus barred from

raising the issue on appeal.   Rule 5A:18.   Finally, at the close

of his case, father's attorney stated, "That's all I have," and

did not indicate at trial in any way that he needed additional

time to present his case.    In short, we find the trial court did

not abuse its discretion in limiting the presentation of evidence

to three hours.   See Ohlen, 16 Va. App. at 422, 430 S.E.2d at 561

(finding no abuse of discretion in setting change of custody

proceeding for motions day despite time constraints).

     For the reasons stated in this opinion, we affirm the

decision of the trial court.

                                                    Affirmed.




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