Trolinger v. Trolinger

42 P.3d 157, 30 Kan. App. 2d 192, 2001 Kan. App. LEXIS 970
CourtCourt of Appeals of Kansas
DecidedOctober 12, 2001
DocketNo. 85,417
StatusPublished
Cited by7 cases

This text of 42 P.3d 157 (Trolinger v. Trolinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trolinger v. Trolinger, 42 P.3d 157, 30 Kan. App. 2d 192, 2001 Kan. App. LEXIS 970 (kanctapp 2001).

Opinion

Lewis, J.:

Arby Lee Trolinger filed an action seeking a divorce from appellee Valerie S. Trolinger. Approximately 1 week later, Valerie filed a protection from abuse action under the Protection from Abuse Act, K.S.A. 60-3101 et seq. The trial court issued a protection from abuse order, restraining Arby from abusing, threatening to abuse, harassing, molesting, or in any way disturbing the peace of Valerie or her minor child. The order went on to state that Arby should have no contact with Valerie. Arby appeals from the protection from abuse order.

[194]*194It is rare that we see an appeal from the issuance of a protection from abuse order. This is probably due to the fact that such things are normally transitory in nature and operate for a limited amount of time. Be that as it may, we have before us an action in which it is argued that the trial court had no authority under the evidence to issue the order in question.

We pause to note that this court is extremely reluctant to involve itself in something as subjective as an order for protection from abuse. These matters frequently develop in emergency situations, and the ultimate judgment of the trial court in a case such as this may literally involve risk to the lives of all or some of the parties involved. Our view of these cases is a view based on the printed word as it comes to us in the record on appeal. We are quite reluctant to substitute our judgment based on that record for the much more objective judgment of the trial judge, who is there in the courtroom and is able to view the parties and malee a real-life judgment on the situation that exists. It is only in a case of the most egregious breach of the trial court’s discretion that this court would become involved in second-guessing a trial court’s decision in entering a decree protecting one of the parties to a domestic relations action from abuse.

With the veracity expressed above and the background, we proceed to the merits of Arby’s arguments on appeal.

Valerie never specifically testified that Arby had done great physical harm to her, but she did testify that he had frightened her and that she was afraid of him. According to Valerie, Arby had made a point of having a discussion with her and told her how he could make bodies disappear. According to Valerie, Arby kept loaded weapons in the home, and the Oklahoma authorities had investigated him for possible involvement in the disappearance of his former wife. On one occasion, Valerie attempted to call her son while she was at home and found the phone 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 restrain her against her will by squeezing her to a point where she feared he was going to crack one of her ribs. She also testified that [195]*195Arby had hit her son. According to Valerie, she was constantly in fear that Arby would do bodily injury to her and to her son.

Arby basically denied everything. He admitted he kept loaded guns around the house and that he had told Valerie about his missing ex-wife and even admitted he had discussions with Valerie about how to “get rid of bodies.” However, Arby had peaceful and reasonable explanations to give for all of these incidents. He admitted to hitting Valerie’s son but claimed the three incidents were spankings and approved by Valerie.

As to Valerie’s testimony concerning the fact that Arby frequently squeezed her to the point she feared he was going to crack a rib, Arby gave an equally benevolent explanation. According to Arby, he was only hugging her and had no intention of causing her injury.

After hearing the testimony of both parties, the trial judge concluded that Valerie

“established by a preponderance of- evidence that there was intentional bodily injury in the form of squeezing. That there were — and that the defendant attempted to cause bodily injury to the plaintiff. And it’s on that basis that I am granting the petition for protection from abuse.”

After further discussion, the judge also ruled:

“[T]he defendant is restrained and shall not abuse, threaten to abuse, harass, molest or anyway disturb tire peace of the plaintiff or her minor child wherever they may be. Defendant shall have no contact with the plaintiff [and the child].”

The judge went on to clarify the restraining order and its relationship to Arby’s stepson as follows:

“Well, I didn’t make a — I guess I didn’t make a finding one way or another. There were allegations that the child was — there was physical hitting of the child as well and, therefore, I think it’s appropriate to have a no contact order concerning him as well.
“I am going to find that by a preponderance of the evidence that there was intentional — that there was bodily harm against [the stepson] by the defendant.”

Arby argues that the trial court erred in basing its orders on the squeezing of Valerie and on his hitting her minor son. It is his position that the orders had to be based on a finding of substantial [196]*196physical pain or impairment to support the conclusion that Arby abused Valerie and her son by intentionally causing bodily injury under the facts.

Arby does not challenge the trial court’s findings of fact but rather its 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 of the following acts between persons who reside together, who formerly resided together or who have or has had a child in common:
“(a) Intentionally attempting to cause bodily injuiy, or intentionally or recklessly causing bodily injury.
“(b) Intentionally placing, by physical threat, another in fear of imminent bodily injury.” (Emphasis added.)

We conclude that Arby’s argument is without merit since an order may be based on intentionally attempting to cause bodily injuiy. We conclude there was substantial competent evidence in the record that Arby at the very least attempted to cause bodily injuiy to Valerie. There was no requirement under the law that Valerie had to prove that Arby actually drew blood or caused her bodily injury before she was entitled 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 that bodily injury under the Protection from Abuse Act requires a finding of substantial pain or impairment. However, that definition is not a broad one and must be confined to and considered within the context of the rest of the opinion.

The court in Paida was faced with drawing a line between acceptable parental discipline of a child and unacceptable parental conduct which causes more than minor or inconsequential injury to the child. In particular, the court was concerned with the boundary of State intrusion and sought to limit trial court discretion and intervention in the way parents discipline their children.

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Cite This Page — Counsel Stack

Bluebook (online)
42 P.3d 157, 30 Kan. App. 2d 192, 2001 Kan. App. LEXIS 970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trolinger-v-trolinger-kanctapp-2001.