Boudreau v. Pierce
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Cite as 2011 Ark. App. 457
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA11-47
Opinion Delivered
JANELLE PIERCE BOUDREAU
APPELLANT
JUNE 22, 2011
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. DR-08-1208-5]
V.
HONORABLE WILLIAM DOUGLAS
MARTIN, JUDGE
W. TY PIERCE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
CLIFF HOOFMAN, Judge
Appellant Janelle Pierce Boudreau appeals from the trial court’s decision granting
appellee William Ty Pierce’s petition for a modification of custody and ordering supervised
visitation. On appeal, Mrs. Boudreau argues (1) that the trial court erred in granting Pierce’s
petition to modify custody because he did not prove a material change in circumstances or
that it would be in the best interests of the children, and (2) that the trial court abused its
discretion when ordering supervised visitation because there was no evidence presented that
would support supervised visitation. We affirm the trial court’s modification of custody, but
reverse and remand on the issue of supervised visitation.
The parties to this appeal were married in 2003 and have two daughters, L.P. and T.P.,
who are now eight and six years old, respectively. The parties separated in June 2008, and a
Cite as 2011 Ark. App. 457
decree of divorce was entered on August 1, 2008. By agreement of the parties, Mrs. Boudreau
was awarded primary custody of the children and was allowed to move to Oklahoma to be
near her family, with Pierce having standard visitation. Both parties resided in Prairie Grove,
Arkansas, prior to their divorce, and Pierce remained in the marital home subsequent to the
divorce.
On April 16, 2010, Mrs. Boudreau’s mother, Lawana LaSeur, filed a petition for
guardianship and a petition for temporary emergency guardianship of the children in the
Oklahoma City District Court. In her application for emergency guardianship, LaSeur alleged
that immediately after Mrs. Boudreau’s relocation to Oklahoma, the children began spending
five nights per week with LaSeur because Mrs. Boudreau was unable to properly care for
them full-time; that from August 2008 until her remarriage in February 2010, Mrs. Boudreau
changed residences at least four times; that Mrs. Boudreau had multiple boyfriends and would
leave the children with LaSeur for days with no contact; that Mrs. Boudreau drank alcohol
and became intoxicated on a daily basis, often blacking out; that after Mrs. Boudreau’s
remarriage to Jeff Boudreau, LaSeur learned that Mr. Boudreau used marijuana and kept it in
the house with the children; that on March 25, 2010, while LaSeur was cleaning Mrs.
Boudreau’s home, she found marijuana in a kitchen cabinet; that Mr. Boudreau also regularly
used prescription drugs such as Adderall, Soma, and Xanax; that on March 27, 2010, the
Boudreaus were out drinking and Mrs. Boudreau became so intoxicated that the police
instructed Mr. Boudreau to take her home in a cab; that after returning home that evening,
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Mr. Boudreau attempted suicide with a pistol and that two bullet holes remained in the home,
although the children were spending the night elsewhere; that LaSeur requested that Mrs.
Boudreau remove the gun from the home, which she did, but that LaSeur then found out that
there were two more guns remaining in the home; and that Mrs. Boudreau had refused to
take T.P. to the doctor despite her complaints of burning and itching in her genital area.
An emergency hearing was held that day on LaSeur’s petition without notice to either
parent, and LaSeur was appointed temporary guardian of the children, with a full hearing on
the petition to be set for May 11, 2010. On April 20, 2010, Mrs. Boudreau filed a motion to
vacate the temporary order of guardianship, and a hearing was held on the motion that day,
with Pierce also appearing pro se at the hearing. By agreement of the parties and the court,
the motion was granted, and Pierce was appointed as the temporary guardian and was
awarded physical custody of the two girls pending the May 11 hearing. The order also
provided that Mrs. Boudreau was to have visitation at Pierce’s discretion, that neither parent
was to allow guns, illegal drugs, or alcohol to be in the presence of the children, and that
neither parent was to consume alcohol while exercising visitation or custody.
On May 4, 2010, Pierce filed a motion for change of custody and an application for
an emergency custody order in Washington County, Arkansas. In his motion, Pierce alleged
that since the divorce, there had been a substantial change in circumstances that warranted a
change of custody to him. Specifically, Pierce restated and adopted the allegations set forth
in LaSeur’s petition, and argued that the combination of drugs, alcohol, and guns combined
to create an environment that was not in the children’s best interest. Pierce prayed that the
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trial court enter a temporary order awarding him custody, consistent with the Oklahoma
court’s previous order, and that the trial court grant his motion for a modification of custody
and award supervised visitation with Mrs. Boudreau.
The trial court granted Pierce’s motion for a temporary emergency order of custody,
and on May 14, 2010, a hearing was held on Pierce’s motion for temporary custody and on
Mrs. Boudreau’s motion to set aside the emergency custody order and dismiss the motion for
change of custody, based on lack of jurisdiction due to the pending case in Oklahoma.
At the hearing, Mrs. Boudreau testified that she and the children moved to Oklahoma
City in August 2008. She denied that the children stayed with LaSeur several nights a week
but stated that they sometimes did so if she had a date night or a work function. Mrs.
Boudreau stated that she was employed as a sales representative for a company that distributes
Red Bull, an energy drink, to restaurants and bars. Mrs. Boudreau testified that she drank to
the point of intoxication when she was younger, but that in the past couple of years, she
would drink only one or two times per week. She denied that her new husband used
marijuana and testified that she had never had it in her house. When questioned about the
incident with the gun being fired, Mrs. Boudreau testified that her husband was sitting on the
couch adjusting something on the gun when it went off two times. She stated that the girls
were spending the night with Mr. Boudreau’s parents at the time, and she denied telling
anyone that he was trying to commit suicide. Mrs. Boudreau testified that she had removed
any guns from her home and that she would have no problem signing an order prohibiting
her or her husband from drinking alcohol in the presence of the children. She stated that she
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would not be comfortable with her mother supervising visitation with the children and argued
that Pierce had been allowing her unsupervised visitation since he had received temporary
custody. Mrs. Boudreau further testified that she did not see any reason why she should not
have custody of the children.
Pierce testified that since he had received temporary emergency custody, he and the
children were remaining in Oklahoma until the end of the school year and that they had been
going to his home in Prairie Grove on the weekends. He stated that he had allowed
unsupervised visitation with Mrs. Boudreau on several afternoons during the week but wanted
the court to award supervised visitation because of his concerns about the gun incident. Pierce
testified that he believed Mrs. Boudreau may not have been honest about removing the gun
from the house and that he thought the girls would be safer with him.
After hearing the testimony of both parties, the trial court entered a temporary order
as to custody and visitation, giving Pierce temporary custody and awarding supervised
weekend visitation to Mrs. Boudreau. The court stated that LaSeur, Mrs. Boudreau’s father,
and any other person approved by Pierce were to supervise the visits, and ordered that neither
party use alcohol or illegal drugs while the children were in their custody or allow third
persons to do so. The trial court further stated that it had conferred with the Oklahoma trial
court, that Arkansas had retained jurisdiction over the parties after the entry of the divorce
decree, and that all proceedings in Oklahoma were to be stayed pending the outcome of the
Arkansas case.
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On July 23, 2010, a full hearing was held on Pierce’s motion to modify custody. At
the hearing, Mrs. Boudreau testified that she had been terminated from her job due to her
many absences for court hearings and for an injury. She also testified that having her mother
supervise visitation had not been going well because her mother would not comply with the
court order and would leave her alone with the children at Mrs. Boudreau’s home. Mrs.
Boudreau did not believe that she had violated the visitation order, arguing that she did not
have control over her mother’s actions and that she did not understand the visitation order
to prohibit her from being alone with the children for short periods of time if allowed by the
supervisor. When questioned about the allegations of drug use, Mrs. Boudreau denied telling
her sister that their mother had seen marijuana in a house she had recently vacated. She also
denied that drugs or alcohol were being used at the time the gun went off, testifying that she
and Mr. Boudreau had gone out to a work event and to celebrate his birthday, and that they
had each had only two drinks and then took a taxi home earlier that evening. Mrs. Boudreau
testified that the gun was normally kept in a locked box in the closet and that after the
incident, she took the gun to her stepfather and had not had a gun in the house since that
time.
Pierce testified that he and the children had been living at his home in Prairie Grove
since the children got out of school in May. He stated that he had been employed as a sales
representative for Latco for approximately five or six years and that his job required him to
travel throughout the region but that he did not have to spend the night away from home.
Pierce testified that when Mrs. Boudreau had custody of the children, he had standard
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visitation but that she would sometimes allow extra visitation when he was in town for work.
According to Pierce, he had problems keeping in contact with the children in the spring of
2010, when they were staying with LaSeur frequently. Pierce testified that he had to call
LaSeur to arrange visits or that he would meet LaSeur in Tulsa for his visitation with the girls.
He stated that he was not aware that LaSeur was going to file the petition for emergency
guardianship until Mrs. Boudreau was shown the petition and called him. When he initially
learned of the petition filed by LaSeur, Pierce stated that he thought it was just a threat, as
LaSeur had made prior allegations that turned out to be exaggerated or not true. According
to Pierce, Mrs. Boudreau was not being truthful in her testimony as to her compliance with
the supervised-visitation order. He stated that he had hired a private investigator to monitor
the weekend visits and that there were multiple occasions on which Mrs. Boudreau violated
the court order requiring supervision. Pierce testified that it was in the children’s best interest
for him to have custody. He stated that he had registered them in the local school and had
arranged for after-school and summer care. He testified that his employer was allowing him
flexibility with his schedule so that he can care for the girls. Pierce also stated that he had
taken the girls to the doctor and to the dentist for check-ups and that L.P. had a couple of
cavities and had not been to the dentist since the divorce. As to the allegations of drug-andalcohol use by the Boudreaus, Pierce testified that he had heard that alcohol had been around
the children but that he had not heard anything about marijuana use. He further testified that
he wanted visitation with Mrs. Boudreau to remain supervised because of her previous
noncompliance, but he agreed that LaSeur was not the proper person to supervise.
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Pierce’s supervisor at Latco, Martin Swope, testified that the company had been
working with Pierce to ensure that he was not required to spend the night away from home.
According to Swope, Pierce is a loyal employee with a good future. Christopher Gee, the
private detective hired by Pierce, also testified. He provided a report listing all of the times
that the Boudreaus were alone with the girls without a supervisor, and the report showed that
there were several occasions where the visitation was unsupervised while the family ran
errands or went to an outing. Gee testified that “it was a common occurrence” that Mrs.
Boudreau did not have a supervisor present.
Mrs. Boudreau’s sister, Jade Crawford, testified that her relationship with her sister was
“off and on” but that she was civil with Pierce and that was the reason that she had been able
to see her nieces since the divorce. Crawford stated that she had been in Mrs. Boudreau’s
home on only one occasion after the divorce, after LaSeur had filed the petition for
guardianship, and that she and Mrs. Boudreau discussed LaSeur’s allegations at that time.
According to Crawford, Mrs. Boudreau told her that LaSeur had seen marijuana in the home
that Mrs. Boudreau had recently vacated, but she did not explain why it was there or say that
she or her husband had used the drug. Crawford testified that she had heard other allegations
about Mrs. Boudreau’s drug use from their other siblings but that she did not have any
independent knowledge to confirm the allegations. When she discussed the gun incident with
Mrs. Boudreau, Crawford testified that her sister told her that she and her husband were
arguing after they had been out drinking and that the gun accidentally went off twice.
Crawford further testified that Pierce could provide a better environment for the children
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than her sister could and that she had no concerns about her nieces when they were in his
care. Crawford stated that she had supervised two weekend visits with the children in her
home and that she did not witness any concerning behavior by Mrs. Boudreau, except for her
“concerns with the amount of time that she spent on the phone” during one of the visits. She
testified that she did not necessarily think that supervised visitation should continue but felt
that the allegations made against her sister were serious and that there should be an inspection
of Mrs. Boudreau’s home to make sure that it was safe and also a drug screen of the
Boudreaus. Crawford further testified that she would be willing to supervise visitation if it
were continued, although it would have to be at her home.
Jeff Boudreau also testified. He denied that there were any drugs, alcohol, or guns
currently in his home. He explained that he was attempting to unjam the gun the night it
went off and that it shocked him, but that he had it out only because the girls were not there.
He further testified that he and his wife did not violate the supervised-visitation order and that
they believed that if the supervisor allowed them to take the children for outings without
supervision, then that was permissible. Mr. Boudreau stated that Pierce was not a proper
custodian for the children because of his work schedule and the fact that he relies on many
babysitters to help care for them. Mr. Boudreau had no concerns about the children when
they resided at he and his wife’s home and stated that he missed the girls tremendously.
After hearing all of the evidence, the trial court found that there had been a material
change in circumstances. The court specifically noted the incident with the gun and stated
that it was most likely due to excessive drug-or-alcohol use by Mr. Boudreau. The court
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further found to be credible Crawford’s testimony that Mrs. Boudreau told her that their
mother had seen marijuana in a house that Mrs. Boudreau had just vacated. The court stated
that, while not all of LaSeur’s allegations had been proved, the Oklahoma court did find some
merit to the allegations, as it had granted LaSeur’s application for emergency guardianship.
The pleadings from the Oklahoma proceedings were also introduced into evidence.
Finding that a material change in circumstances was present, the trial court next
addressed the best interest of the children and listed factors weighing in its decision, such as
stability, moral fitness, love and affection, facilitation with visitation with the noncustodial
parent and grandparents, and child care. After discussing all of these factors, the trial court
found that Pierce should be granted custody. Although stating that it was a tough decision
because both parents clearly loved the children, the trial court found that Mrs. Boudreau’s life
had become unstable since the divorce and that Pierce could provide the girls with a more
stable environment. The court further found persuasive the testimony that Pierce had and
would continue to facilitate visitation, noting that he had indicated that the Boudreaus were
welcome to come and visit at his home anytime.
Regarding Mrs. Boudreau’s compliance with the supervised-visitation order, the court
found her testimony that she did not read or understand the order to be not credible, but did
agree that there may have been some misunderstanding by her as to the exact meaning of the
order and as to whether she could be alone with the children if allowed by the supervisor.
Although stating that it was “hesitant” to do so, the trial court found that supervised visitation
should continue. The court stated that the Boudreaus needed to take affirmative steps to
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disprove some of the allegations against them, i.e., by taking drug tests and parenting classes,
and that the court did not expect that visitation would have to be supervised for long. The
trial court ordered that either Mrs. Boudreau’s father or her sister could supervise visitation,
as well as anyone else approved by Pierce. The order modifying custody was entered on
September 17, 2010, and Mrs. Boudreau timely appealed from that order.
A party seeking to modify custody must prove that a material change of circumstances
has occurred since the last order of custody or that material facts existed at the time of the
decree that were unknown to the court. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).
Custody will not be modified unless it is shown that there are changed conditions
demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App.
134, 79 S.W.3d 388 (2002). The circuit court’s findings in this regard will not be reversed
unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made. Chaffin v. Chaffin, 2011 Ark. App. 293, __ S.W.3d __. While custody
is always modifiable, appellate courts require a more rigid standard for custody modification
than for initial custody determinations in order to promote stability and continuity for the
children and to discourage repeated litigation of the same issues. Vo, supra. There are no cases
in which the superior position, ability, and opportunity of the trial judge to observe the parties
carry a greater weight than those involving the custody of minor children, and our deference
to the trial judge in matters of credibility is correspondingly greater in such cases. Id.
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Mrs. Boudreau first argues that the trial court erred in granting Pierce’s petition for a
change of custody because he failed to prove that a material change in circumstances had
occurred. She contends that the trial court’s decision was based on the gun incident and the
evidence that there was marijuana in a house that she had recently vacated, and argues that
this evidence is not sufficient to modify custody where there was no harm shown to the
children. She cites Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009), as support
for her argument. In Byrd, this court reversed the trial court’s modification of custody where
the only change in circumstances shown were “trivial” and “petty” complaints based on an
acrimonious relationship between the parents and where there was no evidence that these
circumstances had negatively affected the children. Id. at 243–44, 290 S.W.3d at 612–13.
We disagree that the evidence cited by the trial court in this case as a material change
in circumstances was trivial, as in Byrd, and did not present a potential for harm to the
children. To the contrary, the testimony of Mrs. Boudreau’s sister, Crawford, whom the trial
court expressly found to be credible, established that the Boudreaus had been out drinking,
that they had gotten into an argument, and that a gun went off twice inside the home. In
addition, the trial court found credible Crawford’s testimony that Mrs. Boudreau had told her
that their mother had seen marijuana in a home where she and the children had lived and
found that this evidence was not adequately explained or disproved. Although Mrs. Boudreau
contends that it was not shown that the children were present or affected by these specific
events, the combination of facts found by the trial court presented a clear potential for great
harm to the children, and there is no requirement that the trial court wait until the children
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are actually harmed before finding that a material change in circumstances warranting a
change in custody exists.
In addition, this court does not examine the trial court’s findings in isolation, but
instead examines whether all of the factors considered in the aggregate support a modification
of custody. Vo, supra. In this case, there was evidence of alcohol use and drug possession, as
well as irresponsible behavior in combining alcohol with a loaded weapon. Also, there was
evidence that Mrs. Boudreau’s life had become unstable since the divorce. She had moved at
least four different times, had become unemployed, had gotten remarried to someone who
was alleged to abuse drugs, and had frequently left her children with her mother to such an
extent that, Pierce testified, he had trouble getting in touch with the children. The failure to
discharge court-entrusted care of minor children is another factor to be considered in deciding
whether a material change in circumstances exists. Watts v. Watts, 17 Ark. App. 253, 707
S.W.2d 777 (1986). Thus, the trial court’s finding that a material change in circumstances had
occurred in this case is not clearly erroneous.
Mrs. Boudreau next contends that, even if the trial court properly found that there had
been a material change in circumstances, there was no evidence that it was in the children’s
best interest to modify custody. Again, we disagree. The trial court made extensive findings
of fact on this issue and examined several factors in making its decision to change custody to
Pierce. While the court stated that it was a very tough decision, it found important Mrs.
Boudreau’s recent instability, as well as the serious allegations made by LaSeur that had not
been adequately explained by the Boudreaus. The trial court also noted the testimony of
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Crawford that Mrs. Boudreau had spent much of her time on the phone during one of her
weekend visits with the children. Crawford further testified that the children would be better
cared for by Pierce and that she was concerned for their safety when they were in Mrs.
Boudreau’s home. There was also evidence that Mrs. Boudreau had failed to take at least one
of the children to the dentist since the divorce and that the child was found to have two
cavities, as well as the allegation by LaSeur that Mrs. Boudreau failed to seek medical attention
for one of the children’s complaints of burning and itching in her vaginal area.
In contrast to Mrs. Boudreau’s recent instability, the court found that Pierce had a very
stable home environment. He remained in the parties’ marital home, he maintained the same
employment with an employer that was willing to be flexible with his schedule for the
children’s sake, he was involved in his church, and he was very facilitative of visitation with
Mrs. Boudreau and other family members. In fact, Crawford testified that it was through her
relationship with Pierce, not her sister, that she had maintained contact with her nieces.
Therefore, the trial court’s finding that it was in the best interest of the children for custody
to be modified was not clearly against the preponderance of the evidence, and we affirm the
trial court’s modification of custody.
In her second point on appeal, Mrs. Boudreau contends that the trial court abused its
discretion when ordering supervised visitation because there was no evidence presented to
support supervised visitation. She asserts that there was no proof that she neglected the
children’s needs while in her care and also points to the trial court’s statement that it found
the testimony that there were currently no guns, alcohol, or drugs in her home to be credible.
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The fixing of visitation rights is a matter within the sound discretion of the trial court, and we
will not reverse absent an abuse of that discretion. Sharp v. Keeler, 99 Ark. App. 42, 256
S.W.3d 528 (2007).
As Mrs. Boudreau asserts, the trial court here was hesitant to continue supervised
visitation. The court, however, shared the concerns of Crawford that there had not been a
full investigation of the allegations made by LaSeur or an inspection of the home to ensure
that there were in fact no guns or illegal drugs that would place the children in danger.
Because the Boudreaus had not taken positive steps to disprove the allegations, the trial court
found that the supervision should continue. In its decision, the court strongly suggested, but
did not order, that the Boudreaus undergo a drug test and take a parenting class, and the court
indicated that it did not expect supervised visitation to continue for very long if they were to
follow these suggestions.
We agree with Mrs. Boudreau that there is insufficient evidence that visitation should
continue to be supervised under these facts. The trial court itself stated that it did not believe
there were currently any drugs, alcohol, or guns in the home, and indicated that it would
discontinue supervised visitation upon compliance with the court’s “suggestions” that they
undergo a drug test and a parenting class.1 We therefore reverse and remand for a hearing so
that the trial court may determine whether visitation should remain supervised in light of the
following factors: (1) the results of court-ordered drug testing of the Boudreaus; (2) the result
1
At the conclusion of the hearing, there was some indication that Mrs. Boudreau had
in fact undergone a drug test, but the results of the test are not in the record before us.
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of an independent home study addressing the presence of guns, drugs, or alcohol in the home
where visitation with the children will be exercised, in addition to any other factors relevant
to the home; (3) any other factor affecting the best interest of the children.2
Affirmed in part; reversed and remanded in part.
G LOVER, J., agrees.
G RUBER, J., concurs.
R ITA W. G RUBER, Judge, concurring. I concur in the majority’s disposition of the
custody-modification issue because the applicable standard of review requires me to do so; I
take no issue with the portion of the majority’s opinion addressing the supervised visitation.
In this case, the husband of the custodial parent accidentally discharged a legally owned gun
in the home when the children were away, presenting what appears to be an isolated incident.
In Bennett v. Hollowell, we stated that “a change in custody should not be made without proof
of a subsequent material change in circumstances affecting the welfare of the children
involved.” 31 Ark. App. 209, 213–14, 792 S.W.2d 338, 341 (1990) (emphasis added). There,
the chancellor determined that the DWI arrest3 and conviction of the custodial father’s wife
2
We are mindful of the fact that more than nine months have passed since visitation
was ordered to be supervised and that due to changed circumstances, supervised visitation may
have already been discontinued by the trial court during the pendency of this appeal.
3
The arresting officer testified that he responded to a call; he found the stepmother and
children in her car, which was off the road and stuck in mud; she smelled strongly of alcohol;
she stumbled and almost fell when exiting the car, and she failed the sobriety tests given.
Bennett, 31 Ark. App. at 212, 792 S.W.2d at 340.
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“was not a sufficient reason to change custody,” despite the children’s presence in the car
when she was arrested, in part because “he was satisfied that it would not be repeated.” Id.
at 213, 792 S.W.2d at 340. We affirmed in Bennett, noting the trial court’s credibility
determinations and that the “isolated instance” was the only evidence that custody with the
father had been “detrimental to the children.” Id. at 214–15, 792 S.W.2d at 341. In this case,
no evidence was presented that the children knew the gun was in the home or had ever been
in proximity to it or that the accidental gun discharges did or would affect the welfare of the
children. While actual or potential harm to a child is enough to warrant a custody
modification, the children were not actually in danger the evening the gun discharged, as they
were not home, and in light of the trial court’s statement that “credible testimony was
presented today [by the Boudreaus] that they have removed all alcohol and the gun from the
home,” the children were not potentially in danger.
I cannot emphasize enough that I do not condone illegal drugs or the combination of illegal
drugs, alcohol, or violence with guns, whether in the presence of children or otherwise.
However, it is my belief that the gun discharges were an isolated incident and should not have
been considered one of the material changes in circumstances.
Accordingly, I respectfully concur.
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