                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


LLEWELLYN J. EVANS, JR.
                                                 MEMORANDUM OPINION *
v.   Record No. 2281-96-4                            PER CURIAM
                                                   APRIL 1, 1997
KATHLEEN MCCONNELL EVANS


             FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                   William Shore Robertson, Judge

           (Julia S. Savage; Jeanette A. Irby; Walker,
           Jones, Lawrence, Duggan & Savage, on briefs),
           for appellant.
           (Burke F. McCahill; Hanes, Sevila, Saunders &
           McCahill, on brief), for appellee.



     Llewellyn J. Evans, Jr. (father) appeals the decision of the

circuit court setting visitation and deciding other issues.

Kathleen McConnell Evans (mother) was awarded legal and physical

custody of the parties' two children.   Father contends that the

trial court (1) abused its discretion in denying his motion for a

continuance due to his counsel's ill health; (2) erred in

permitting the testimony of mother's expert witness; (3) erred in

denying father's request for having the use during trial of

discovery supplemented under Rule 4:1 of the Rules of the Supreme

Court of Virginia; (4) abused its discretion by not allowing

father meaningful visitation with the minor children; (5) abused

its discretion by denying father's request for joint legal

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
custody; and (6) erred in limiting father's visitation in the

absence of evidence that he was unfit.     Upon reviewing the record

and briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the decision of

the trial court.    Rule 5A:27.

     "Where, as here, the court hears the evidence ore tenus, its

finding is entitled to great weight and will not be disturbed on

appeal unless plainly wrong or without evidence to support it."
Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va. App.

15, 20, 348 S.E.2d 13, 16 (1986).      The trial court, as the finder

of fact, was entitled to determine "[t]he weight which should be

given to evidence and whether the testimony of a witness is

credible . . . ."    Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986).

                                  I.

     "The decision whether to grant a continuance is a matter

within the sound discretion of the trial court.     Abuse of

discretion and prejudice to the complaining party are essential

to reversal."    Venable v. Venable, 2 Va. App. 178, 181, 342

S.E.2d 646, 648 (1986).   The record demonstrates that mother's

bill of complaint was filed in March 1994.     In January 1995, the

trial was set for October 1995.    The court ordered an initial

discovery cut-off date of January 27, 1995, which subsequently

was extended to September 22, 1995.     Father filed several motions

seeking to continue the trial and to extend the discovery period.




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When father again moved for a continuance on October 17, 1995,

the court denied the request, finding that
          this is the third request for a continuance
          of the trial dates and that the prior
          requests have been denied, that [father's]
          counsel is ill requiring the substitution of
          counsel, but said counsel was advised on June
          20, 1995, that there would be no continuance
          of the trial date; that this case has been
          scheduled for a hearing since approximately
          January of 1995 and the trial date has been
          continued previously at the request of the
          [father]; that this judge would have to hear
          the evidence in this case and may not have
          any available dates for at least nine months
          to a year to devote to this case if it was to
          be continued; that a continuance will
          exacerbate the difficulties experienced by
          the parties and the children in this case and
          would not be in the best interest of the
          children . . . .

The court succinctly detailed why it denied the continuance,

including its determination that a continuance would not be in

the children's best interests.   The record amply supports the

court's findings.   While father cites Mills v. Mills, 232 Va. 94,

348 S.E.2d 250 (1986), to support his assertion that the trial

court abused its discretion by denying a continuance, the facts

of this case are significantly distinguishable from those of
Mills, in which a party found herself without counsel with less

than one day's notice.   Therefore, we find no abuse of discretion

in the court's decision.

                                 II.

     Father raises two objections to the testimony of mother's

witness, Dr. Bixler, who was accepted by the parties as an expert




                                  3
in the field of clinical psychology.      Father contends that

Dr. Bixler's opinion testimony of father's mental state was

inadmissible and that the court allowed inadmissible hearsay when

it allowed Dr. Bixler to read his notes from his sessions with

mother.   We find no error.

     Father contends the court should not have allowed Dr. Bixler

to render an opinion concerning father's personality.     Dr. Bixler

testified that he met separately with mother twenty-five times

and father four times.   Dr. Bixler testified about his

"diagnostic impression," rather than his diagnosis, of father

based upon these counseling sessions. 1    "Evidence is relevant if

it has any logical tendency, however slight, to establish a fact

at issue in the case."   "Once evidence is determined to be

relevant and material, '[t]he responsibility for balancing . . .

probative value and prejudice rests in the sound discretion of

the trial court,' and its decision 'will not be disturbed on

appeal in the absence of a clear abuse.'"
Taylor v. Commonwealth, 21 Va. App. 557, 563, 466 S.E.2d 118, 121

(1996) (citations omitted).   The court noted that the mental

condition of the parents was at issue in the trial and

Dr. Bixler's testimony was relevant to the question of father's

mental condition.   Father's challenge to Dr. Bixler's testimony
     1
      We note that father's disavowal of any patient/doctor
relation with Dr. Bixler conflicts with the position taken by
father at trial that father's comments to Dr. Bixler were
protected by a patient/doctor privilege. Father has not pursued
that issue on appeal.



                                 4
goes to the weight to be afforded Dr. Bixler's opinion, not to

its admissibility.   We find no indication the court abused its

discretion by allowing the testimony.

       Father also contends that the admission of mother's comments

to Dr. Bixler, which were read into evidence through Dr. Bixler's

notes, was inadmissible hearsay.       The comments were admitted into

evidence as the basis for the doctor's opinion, not for the truth

of the comments.   Therefore, the comments were not hearsay.      See
Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22

(1992).   Accordingly, in light of the legitimate limited basis

for admission, we hold that the probative value of Dr. Bixler's

notes outweighs any incidental prejudice to appellant,

particularly where, as here, the trial judge in a bench trial is

presumed to disregard prejudicial or even inadmissible evidence.

 See Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455,

462 (1992) (en banc).

                                III.

       Father contends that the trial court erred by denying him

the ability to use at trial discovery supplemented under Rule

4:1.   We find no error.   The grant or denial of discovery is a

matter within the discretion of the trial court and its decision

will be reversed only if the action taken was an abuse of that

discretion.    See Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d

751, 755 (1970).

       The record is clear that father's new counsel felt



                                   5
constrained by the court's refusal to grant a continuance of the

trial or to allow additional discovery.   Counsel indicated that

there were additional items which she felt were necessary to

prove father's case.   However, as noted by the court, previous

counsel signed the order setting the September 1995 discovery

cut-off date. In addition, the court noted that
          simply because new counsel has been -- come
          into the case does not alter the fact that
          your client had the benefit of former
          counsel's service with respect to this
          matter, his choices, his tactics, the
          procedures he followed. And that's borne out
          by this record. Look at the number of
          appearances that [former counsel] made before
          the Court. Look at the number -- number of
          times that the Court sat down with counsel on
          discovery issues and addressed the responses
          made or not made. That has been focused on
          and on a hands-on way throughout this
          proceeding.

The court also noted that it "provided seven months for this

process to work its way and there's nothing to show me that

[former counsel] wasn't fully capable of doing this work as I've

indicated because he has made enumerable appearances with us."

     While substitute counsel may have encountered unexpected

problems related to the condition of the case's files, we cannot

say that the court's refusal to extend its discovery cut-off or

to allow the use of supplementary documents denied father due

process of law.   Father had considerable time to conduct

discovery.

     Moreover, while father points to the exclusion of two

letters which he asserts prejudiced him, related testimony was



                                 6
received into evidence.   Father does not establish with any

specificity how the exhibits would have affected the court's

decision or led to a different result.

     Father has not demonstrated that the court's discovery

ruling was an abuse of discretion or that it prevented him from

receiving a fair trial.




                                 7
                                  IV.

     "In matters concerning custody and visitation, the welfare

and best interests of the child are the 'primary, paramount, and

controlling consideration[s].'"        Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted).       The

trial court is vested with broad discretion to make the decisions

necessary to safeguard and promote the child's best interests,

and its decision will not be set aside unless plainly wrong or

without evidence to support it.        Farley v. Farley, 9 Va. App.

326, 328, 387 S.E.2d 794, 795 (1990).

     Father contends he was denied meaningful visitation because

the schedule does not provide for him to have the children on any

school night.   He also contends that there was no evidence that

school night visitation was disruptive to the children's

schedule.    However, both parents testified that Mondays following

father's visitation were sometimes difficult days for the younger

child, although father believed any agitation was related merely

to school.   The child's teacher noted that the younger child

sometimes seemed tired and confused on Mondays.       Testimony also

indicated that confusion existed over the older child's eating

and insulin shots, which were necessary to control her diabetes.

     Evidence showed that the children's best interests and

well-being were not promoted by school night visitation with

father.   The trial court's visitation decision was made with the

children's best interests as the primary focus, and was based



                                   8
upon evidence heard ore tenus.   Father has not demonstrated that

the court's decision constituted an abuse of discretion.

                                 V.

     In its letter opinion, the trial court cited the statutory

factors set out in Code § 20-124.3, and particularly factor (6). 2

 The court noted:
          The evidence establishes that both [father
          and mother] have attributes which given the
          alternative would make them qualifiedly fit
          custodians of their children. However,
          despite their assurances of cooperation, the
          the [sic] record before the Court including
          the vigor and manner in which this case was
          litigated regrettably convinces the Court
          that the parties could not presently share
          the joint responsibility for the care and
          control of their children and make joint
          decisions concerning them.

The court's determination was based upon the statute and the

evidence heard ore tenus, and its assessment of the credibility

of the parties and witnesses will not be disturbed on appeal.

The record supports the court's assessment of the parties'

ability to make joint decisions regarding the children.    See
Department of Soc. Servs. ex rel. Ewing v. Ewing, 22 Va. App.

466, 473-74, 470 S.E.2d 608, 612 (1996).   Therefore, as the

court's decision to award mother sole legal custody was grounded

in its concern for the children's best interests and was

supported by the evidence, we find no abuse of discretion in the

court's refusal to award joint legal custody.
     2
      While the court cited "Section 20-124.3G," it is apparent
the court was referring to § 20-124.3(6).



                                 9
                                VI.

     Father contends that the court erred in limiting his

visitation in the absence of evidence that he was unfit.    Yet,

father makes no argument on this point.   We therefore do not

address it.   See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415

S.E.2d 237, 239 (1992) ("Statements unsupported by argument,

authority, or citations to the record do not merit appellate

consideration.   We will not search the record for errors in order

to interpret appellant's contention and correct deficiencies in a

brief.").
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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