McClure v. McClure3/2/2000
This is a divorce case. The trial court awarded the husband sole custody of the parties' children and ordered the wife to pay child support . Supervised visitation was awarded to the wife, and visitation was also awarded to the maternal grandmother and great-grandmother. The trial court also ordered that the marital home be sold, with the proceeds divided between the parties. We affirm the award of custody to the husband, reverse the award of visitation to the maternal grandmother and great-grandmother, reverse the order that the marital home be sold, and remand.
Plaintiff/Appellant, Timothy McClure ("Husband"), and Defendant/Appellee, Stacy McClure ("Wife"), were married on June 3, 1990. The parties have two children, William Nicholas McClure, born February 20, 1991, and Morgan Taylor McClure, born April 12, 1996.
On the night of October 3, 1996, Wife was arrested after allegedly abusing the two children, who were then six years old and five months old. The district attorney general in the case charged that Wife became intoxicated and beat William. She then began to stab with a knife around the bed where infant Morgan lay. The district attorney general stated that William slipped away from his mother and ran next door to get his uncle, Husband's brother. The uncle saw marks on William's body and went to the parties' house to investigate. When the uncle walked up to the front door, Wife allegedly met him intoxicated and completely undressed. Wife was arrested and charged with child abuse.
Wife denies the charge, stating that she was not intoxicated on the night of the incident. She claimed that William had been playing with a knife around infant Morgan, and that she stabbed the mattress with the knife to show William how the knife could injure the baby. Nevertheless, Wife pleaded nolo contendere to one count of child abuse, a Class D felony, on January 8, 1997.
Immediately after the incident, Husband and Wife separated. On October 4, 1996, the day after the incident, the Fayette County Juvenile Court issued an order awarding sole custody of the parties' two children to Husband. On October 8, 1997, the same court issued a temporary restraining order prohibiting Wife from returning to the parties' home. Since then, Husband has maintained sole custody of the children.
On October 8, 1996, Husband filed a complaint for divorce in the Fayette County Chancery Court. Husband asked for a divorce on the basis of Wife's inappropriate marital conduct or, in the alternative, due to irreconcilable differences between the parties. He asked that he be awarded custody of the parties' children, that Wife be ordered to pay child support , that she have no visitation rights, and that he be awarded the marital home. Wife counter-filed for divorce on October 29, 1996. She sought custody of the parties' children and child support from Husband, and asked the trial court to equitably divide the parties' real and personal property.
On November 7, 1996, Wife filed a motion for visitation. Wife asked that visitation take place in the home of the children's maternal great-grandmother, Marie Anderioli ("Great-Grandmother"), and under her supervision. By telephone conference on May 9, 1997, the Fayette County Chancery Court granted Wife supervised visitation with the parties' children. No copy of the order is included in the record on appeal. At trial, Wife asserted that frequently Husband permitted her to see the children only at his house or at his parent's house, and that Husband and his family were disruptive during her visitation. Husband maintained that Great-Grandmother often failed to supervise Wife's visitation, as required by the trial court's order.
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