# Boudreau v. Pierce

> Court of Appeals of Arkansas · June 22, 2011 · 2011 Ark. App. 457

URL: https://www.frixlaw.com/law-library/cases/5111728

## Case

- **Full name:** Janelle Pierce BOUDREAU v. W. Ty PIERCE
- **Court:** Court of Appeals of Arkansas
- **Decided:** June 22, 2011
- **Citations:** 2011 Ark. App. 457; 384 S.W.3d 664; 2011 Ark. App. LEXIS 482
- **Precedential status:** Published
- **Opinion:** Concurrence by Gruber
- **Judges:** Glover, Gruber, Hoofman
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5111728

## Opinion text

RITA W. GRUBER, 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 arrest 3 and conviction of the custodial father’s wife |17“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.
.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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5111728. Public record. Not legal advice.