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. 
 2 

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. 
 3 

 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 
 4 

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 

 

 1We 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. 
 5 

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 
 6 

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 
 7 

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. 
 8 

 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 
 9 

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. 

 

 2While the court cited "Section 20-124.3G," it is apparent 

the court was referring to § 20-124.3(6). 
 10 

 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.