                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


MICHAEL ANDREW LAMONT
                                           MEMORANDUM OPINION *
v.   Record No. 0078-00-4                      PER CURIAM
                                              JUNE 13, 2000
SHEILA ANN LAMONT


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Kathleen H. MacKay, Judge

           (Mark A. Barondess; Erika B. Schiller;
           Sandground Barondess West & New, P.C., on
           briefs), for appellant.

           (Douglas J. Sanderson; McCandlish & Lillard,
           P.C., on brief), for appellee.

           (Melinda S. Norton; Matthews, Snider,
           Norton & Fitzner, on brief), guardian ad
           litem for Andrew Lamont and Elizabeth
           Lamont.



     The trial court granted Sheila Ann Lamont primary physical

custody of the parties' two minor children, Andrew and Elizabeth,

and awarded the parties joint legal custody.   On appeal,

Michael A. Lamont contends that the trial court erred or abused

its discretion by (1) failing to award him sole legal custody

despite evidence of physical and emotional abuse of the children

by mother; (2) failing to set a visitation schedule equally

dividing the children's time with their parents; and (3) failing

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
to set a summer schedule equally dividing the children's time

between the parties.   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.

See Rule 5A:27.

     The parties continued to reside in the marital residence

during the initial stages of the divorce proceedings.   Pursuant to

an emergency motion of the guardian ad litem, the trial court

entered a Protective Order and Pendente Lite Order establishing a

"bird's nest" custody arrangement in which the children, ages

three and five, remained in the marital home with the mother

during the week and with the father during the weekend.      At the

conclusion of a four-day evidentiary hearing on custody and

visitation, the trial court ruled that the parties would share

joint custody of the children; that the father would have the

children three weekends each month; and that each party would have

two weeks with the children each summer.    The trial court also

continued the appointment of the guardian ad litem.   The father

appealed the order setting out the court's ruling.

                            Joint Custody

     The father contends that the trial court erred by failing to

award him sole legal custody.   We disagree.   "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

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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.   See Farley v. Farley, 9 Va. App. 326, 327-28, 387

S.E.2d 794, 795 (1990).   "Absent clear evidence to the contrary in

the record, the judgment of a trial court comes to an appellate

court with a presumption that the law was correctly applied to the

facts."   Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105

(1995).

     The father contends that there was overwhelming evidence that

the mother physically and emotionally abused the parties'

children.   While there was evidence that the mother had acted in

anger in disciplining the children, there was also extensive

evidence that she was the primary caregiver who actively nurtured

both children.   Both parties had trouble with anger management.

Dr. Christopher H. Lane, a licensed clinical psychologist who

examined the parties and their children, opined that "both these

individuals are likely to behave at times in a manner that is

anathema to the best interests of these children."   Dr. Lane

testified as follows:

            [T]hey are basically high-functioning people
            who my belief is that under the conditions
            of long-term marital stress have behaved
            very badly in terms of self control, in
            terms of taking responsibility, in terms of
            being able to focus on their children's
            needs rather than their own.

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             I think they are both critically compromised
             in those areas. I also think they do not
             -- neither of them show any particular
             positive signs with regard to being able to
             cooperate with one other around the
             children's needs.

     The trial court heard the evidence ore tenus and received the

recommendation of the guardian ad litem.     In comments from the

bench, the trial court reviewed both the statutory provisions of

Code § 20-124.2(B) and the factors set out in Code § 20-124.3.

Based upon the evidence and the statutory factors, the trial court

found that the best interests of the children required the active

participation of both parents and that joint legal custody was the

best means to ensure that participation.     Accordingly, the trial

court ordered the parties to share joint legal custody, granting

the guardian ad litem the final decision-making authority in

instances where the parties were unable to reach an agreement.

     The trial court required both parties to continue therapy

until released by their therapists.      Based upon the evidence heard

ore tenus by the trial court over the four-day hearing, we find no

abuse of discretion or error in the decision to award the parties

joint legal custody.

                               Visitation

     The father also contends that the trial court erred by

failing to grant him an equal amount of time with the children

each week.    We disagree.   The trial court adopted the visitation

schedule proposed by the father, although reversing the roles of


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the parties.    The father received visitation on the first, second,

and fourth weekend of each month from Friday night until Sunday

night.    The trial court also granted the father's request for

additional visitation each Tuesday evening.     In addition, the

parties split or alternate all holidays.      The court's decision was

based in part on the evidence concerning the father's regular work

schedule.   We cannot say that the trial court's decision was

either an abuse of discretion or unsupported by the evidence.

                          Summer Visitation

     The father also contends that the trial court erred by

failing to give him more visitation in the summer.     Both parents

were awarded two uninterrupted weeks with the children each

summer.    The trial court's decision was based upon the evidence

and the statutory factors.   We find no abuse of discretion or

reversible error.

     Accordingly, the judgment of the trial court is summarily

affirmed.

                                                            Affirmed.




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