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- No. 85,4171
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
VALERIE S. TROLINGER,
Appellee,
v.
ARBY LEE TROLINGER,
Appellant.
SYLLABUS BY THE COURT
1. Protection from abuse orders issued under the Protection from AbuseAct, K.S.A. 60-3101 et seq., are normally transitory in nature,frequently develop in emergency situations, and may involve risk tothe lives of some or all of the parties involved. Because of theseconsiderations, an appellate court is reluctant to substitute itsjudgment for that of the trial court which is in the best position tojudge whether the situation requires an order of protection fromabuse. Only an egregious breach of the trial court's discretion wouldprompt an appellate court to undo a decree protecting one of theparties to a domestic relations action from abuse.
2. A protection from abuse order under the Protection from Abuse Actmay be based on intentionally attempting to cause bodily injury.K.S.A. 2000 Supp. 60-3102. When there is substantial competentevidence in the record of such an attempt, a spouse is not required bylaw to prove the other spouse actually caused bodily injury beforebeing entitled to an order of protection from abuse.
3. The discipline of children and the abuse of spouses share littlecommon ground, yet these disparate family interactions fall under thesame legislative enactment. The conclusion in Paida v. Leach, 260 Kan.292, 301, 917 P. 2d 1342 (1996), that bodily injury under theProtection from Abuse Act requires a finding of substantial pain andimpairment must be confined to and considered within the context ofthe rest of that opinion which was concerned with limiting trial courtdiscretion and intervention in the way parents discipline theirchildren.
4. A trial court is not required to find substantial pain andimpairment before concluding that a spouse was abused as a matter oflaw and issuing a protection from abuse order. The trial court isrequired to look at all the circumstances in a particular case andrender a finding of abuse if it is shown by a preponderance of theevidence.
5. The trial court, as the sole arbitrator of the credibility ofwitnesses and under all the circumstances of this case, was free todisbelieve that the stepparent's hittings of the stepson were merelyspankings and to find that these hittings amounted to an infliction ofpain and impairment rising to the level where the child needed anorder of protection.
6. The trial court may look at familial relationships when issuingprotection from abuse orders and avoid applying different standards soas not to undermine the order issued to one or the other of the familygroup.
7. The statutory scheme of the Protection from Abuse Act is designedto promote the protection of the victims and make access to the courteasy and prompt. Because the trial court is charged with exercisingits discretion in light of all the circumstances presented, the Actdoes not require a trial court to focus on the timing of either recentabuse or future risk as a condition precedent to issuing an orderpursuant to the Act.
Appeal from Johnson District Court; THOMAS E. FOSTER, judge. Opinionfiled October 12, 2001. Affirmed.
Ronald W. Nelson, of Rose & Nelson, of Overland Park, for theappellant.
No appearance by the appellee.
Before GREEN, P.J., LEWIS, J., and JACK L. BURR, District Judge,assigned.
LEWIS, J.: Arby Lee Trolinger filed an action seeking a divorce fromappellee Valerie S. Trolinger. Approximately 1 week later, Valeriefiled a protection from abuse action under the Protection from AbuseAct, K.S.A. 60-3101 et seq. The trial court issued a protection fromabuse order, restraining Arby from abusing, threatening to abuse,harassing, molesting, or in any way disturbing the peace of Valerie orher minor child. The order went on to state that Arby should have nocontact with Valerie. Arby appeals from the protection from abuseorder.
It is rare that we see an appeal from the issuance of a protectionfrom abuse order. This is probably due to the fact that such thingsare normally transitory in nature and operate for a limited amount oftime. Be that as it may, we have before us an action in which it isargued that the trial court had no authority under the evidence toissue the order in question.
We pause to note that this court is extremely reluctant to involveitself in something as subjective as an order for protection fromabuse. These matters frequently develop in emergency situations, andthe ultimate judgment of the trial court in a case such as this mayliterally involve risk to the lives of all or some of the partiesinvolved. Our view of these cases is a view based on the printed wordas it comes to us in the record on appeal. We are quite reluctant tosubstitute our judgment based on that record for the much moreobjective judgment of the trial judge, who is there in the courtroomand is able to view the parties and make a real-life judgment on thesituation that exists. It is only in a case of the most egregiousbreach of the trial court's discretion that this court would becomeinvolved in second-guessing a trial court's decision in entering adecree protecting one of the parties to a domestic relations actionfrom abuse.
With the veracity expressed above and the background, we proceed tothe merits of Arby's arguments on appeal.
Valerie never specifically testified that Arby had done great physicalharm to her, but she did testify that he had frightened her and thatshe was afraid of him. According to Valerie, Arby had made a point ofhaving a discussion with her and told her how he could make bodiesdisappear. According to Valerie, Arby kept loaded weapons in the home,and the Oklahoma authorities had investigated him for possibleinvolvement in the disappearance of his former wife. On one occasion,Valerie attempted to call her son while she was at home and found thephone had been disconnected, a car key was missing from her keyring,and the garage was padlocked.
Valerie testified about regular instances in which Arby would restrainher against her will by squeezing her to a point where she feared hewas going to crack one of her ribs. She also testified that Arby hadhit her son. According to Valerie, she was constantly in fear thatArby would do bodily injury to her and to her son.
Arby basically denied everything. He admitted he kept loaded gunsaround the house and that he had told Valerie about his missingex-wife and even admitted he had discussions with Valerie about how to"get rid of bodies." However, Arby had peaceful and reasonableexplanations to give for all of these incidents. He admitted tohitting Valerie's son but claimed the three incidents were spankingsand approved by Valerie.
As to Valerie's testimony concerning the fact that Arby frequentlysqueezed her to the point she feared he was going to crack a rib, Arbygave an equally benevolent explanation. According to Arby, he was onlyhugging her and had no intention of causing her injury.
After hearing the testimony of both parties, the trial judge concludedthat Valerie
"established by a preponderance of evidence that there was intentionalbodily injury in the form of squeezing. That there wereand that thedefendant attempted to cause bodily injury to the plaintiff. And it'son that basis that I am granting the petition for protection fromabuse."
After further discussion, the judge also ruled:
"[T]he defendant is restrained and shall not abuse, threaten to abuse,harass, molest or anyway disturb the peace of the plaintiff or herminor child wherever they may be. Defendant shall have no contact withthe plaintiff [and the child]."
The judge went on to clarify the restraining order and itsrelationship to Arby's stepson as follows:
"Well, I didn't make aI guess I didn't make a finding one way oranother. There were allegations that the child wasthere was physicalhitting of the child as well and, therefore, I think it's appropriateto have a no contact order concerning him as well.
. . . .
"I am going to find that by a preponderance of the evidence that therewas intentionalthat there was bodily harm against [the stepson] bythe defendant."
Arby argues that the trial court erred in basing its orders on thesqueezing of Valerie and on his hitting her minor son. It is hisposition that the orders had to be based on a finding of substantialphysical pain or impairment to support the conclusion that Arby abusedValerie and her son by intentionally causing bodily injury under thefacts.
Arby does not challenge the trial court's findings of fact but ratherits conclusion of law.
K.S.A. 2000 Supp. 60-3102 provides in part:
"As used in this act, 'abuse' means the occurrence of one or more ofthe following acts between persons who reside together, who formerlyresided together or who have or has had a child in common:
"(a) Intentionally attempting to cause bodily injury, or intentionallyor recklessly causing bodily injury.
"(b) Intentionally placing, by physical threat, another in fear ofimminent bodily injury." (Emphasis added.)
We conclude that Arby's argument is without merit since an order maybe based on intentionally attempting to cause bodily injury. Weconclude there was substantial competent evidence in the record thatArby at the very least attempted to cause bodily injury to Valerie.There was no requirement under the law that Valerie had to prove thatArby actually drew blood or caused her bodily injury before she wasentitled to the order.
Arby bases his argument on the decision of Paida v. Leach, 260 Kan.292, 301, 917 P.2d 1342 (1996). In that case, the court concluded thatbodily injury under the Protection from Abuse Act requires a findingof substantial pain or impairment. However, that definition is not abroad one and must be confined to and considered within the context ofthe rest of the opinion.
The court in Paida was faced with drawing a line between acceptableparental discipline of a child and unacceptable parental conduct whichcauses more than minor or inconsequential injury to the child. Inparticular, the court was concerned with the boundary of Stateintrusion and sought to limit trial court discretion and interventionin the way parents discipline their children. The court specificallyrecognized:
"The discipline of children and the abuse of spouses share littlecommon ground. Because these disparate family interactions fall underthe same legislative enactment, the trial court can and shoulddetermine in light of all the circumstances in each individual casewhether the plaintiff has shown abuse by a preponderance of theevidence. Those circumstances will include the age of the allegedvictim and his or her relationship to the alleged abuser. Neitherreason nor the limits clearly expressed by the legislature in the Actpermits a trial court judge to overlook the infliction of bodilyinjury. However, the Act is not intended to dictate acceptableparental discipline or unnecessarily interfere in the parent/childrelationship absent a clear need to protect the child." (Emphasisadded.) 260 Kan. at 300.
As will be noted, the court in Paida indicated that the trial courtneeds to determine whether a plaintiff has shown abuse in light of thecircumstances in each individual case. Paida does not establish abright line rule that the victim must actually show that he or she hasshed blood or suffered real physical pain in order to obtain an orderwhich may avoid that circumstance.
We hold the trial court was not required to find substantial pain andimpairment before concluding that Valerie was abused as a matter oflaw. The trial court is required to look at all the circumstances andrender a finding of abuse if it is shown by a preponderance of theevidence. We conclude the trial court did that in this particularmatter. Its finding of attempted abuse is sufficient to support theissuance of the order in this case.
Arby then argues the order was in error when it restrained him fromcoming around his stepson. The trial court based its ruling concerningthe stepson on the physical hitting done by Arby. Arby portrays theseincidents as spankings.
As pointed out earlier, it is very difficult for this court to make afactual determination in a case of this nature. We understand thatpeople's lives and well-being are concerned and that the trial courtis the best judge as to whether there has been abuse sufficient torequire an order of the type entered in this case. The trial court isthe sole arbitrator as to the credibility of the witnesses and mustdetermine which witness it believes. As we read this trial court'sdecision, it did not believe Arby's explanation that these hittingswere merely spankings. It did believe that Arby had inflicted pain orimpairment on his stepson and that the child needed to be protectedfrom Arby by the order issued. We conclude that under all thecircumstances of this case, the trial court did not err in findingthat Valerie had shown abuse of her son by Arby by a preponderance ofthe evidence. We, therefore, affirm the trial court's order insofar asit relates to the stepson.
One problem with Arby's argument is that it literally suggests that weapply a different standard to his stepson than we have applied toValerie. This is not a workable solution; Valerie and her son are afamily, they live together, and to apply different standards wouldsimply undermine the order issued to one or the other of the familygroup. We do not intend to do that, and we believe the trial court canlook at the familial relationships and the problems which might becaused by applying one standard to Valerie and another to her son.
In any event, we find no error with the order for protection fromabuse insofar as Valerie or her son are concerned.
Arby finally argues that the alleged actions he took against Valerieand her son were not recent in time and did not present an ongoingrisk to Valerie and her son and, because of that fact, did not warrantthe issuance of an order for protection from abuse. We disagree.
K.S.A. 60-3101(b) provides that the Act shall be liberally construed"to promote the protection of victims of domestic violence from bodilyinjury or threats of bodily injury and to facilitate access tojudicial protection for the victims."
We have no intention of interfering with the ability of the trialcourt to protect victims of domestic violence. The fact that theactions testified to may not be recent in time and may not present anongoing risk are factors which must be considered by the trial courtin determining whether it is appropriate to issue an order forprotection from abuse. We believe it would be contrary to the intentof the law to hold that no order could be issued unless the acts ofviolence were recent and presented an immediate threat to the victimswho seek protection.
The statutory scheme is designed to promote protection of the victimsand make access to the court easy and prompt. For that reason, thetrial court is simply charged to exercise its discretion in light ofthe circumstances presented. The circumstances presented would includesuch factors as those Arby now insists must be proven to obtain anorder. We hold that the Act does not require focusing on the timing ofeither recent abuse or future risk as a condition precedent to theissuance of an order for protection from abuse.
Affirmed.
1REPORTER'S NOTE: Previously filed as an unpublished opinion, theSupreme Court granted a motion to publish by an order dated October30, 2001, pursuant to Rule 7.04 (2000 Kan. Ct. R. Annot. 46).
END
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