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24 Kan. App. 2d 342

No. 77,454

NICKI BARNETT and NICHOLAS BARNETT, Appellees/Cross-Appellants, v. CHARLES F. BARNETT, JR., Appellant/Cross-Appellee.

SYLLABUS BY THE COURT

1. Parental discipline of a child is abuse, as defined under K.S.A. 60-3102(a), if the parent willfully attempts to cause, willfully causes, or wantonly causes substantial physical pain or physical impairment to the child.

2. Parental discipline of a child is abuse, as defined under K.S.A. 60-3102(b), if the parent places the child, by physical threat, in fear of imminent bodily injury.

3. Because the Protection from Abuse Act, K.S.A. 60-3101 et seq., is to be liberally construed to allow victims easy access to the judicial system and because K.S.A. 60-3107(a)(7) does not require a party's success as a condition to receiving an attorney fee award, a trial court may award an attorney fee to a party seeking relief under the Act even if the party's request for relief is later denied or overturned.

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed September 19, 1997. Affirmed in part and reversed in part.

Ronald W. Nelson, of Rose & Nelson, of Overland Park, for appellant/cross-appellee.

William G. Howard, of Law Offices of William G. Howard, of Olathe, for appellees/cross-appellants.

Before GREEN, P.J., MARQUARDT, J., and C. ROBERT BELL, District Judge, assigned.

GREEN, J.: Charles F. Barnett, Jr., appeals from a protection from abuse order entered against him. Nicki Barnett, Charles' ex-wife, moved for an order protecting Nicholas Barnett, the parties' 13 year-old-son, from abuse by Charles. In addition, Nicki asked the trial court to change residential custody of Nicholas from Charles to Nicki and to award her attorney fees in this matter. The trial court granted Nicki's requested relief, although the court reduced the amount of her claimed attorney fees.

On appeal, Charles challenges whether the evidence was sufficient to sustain the protection from abuse order. Given the fact that Nicholas did not suffer substantial physical pain or physical impairment as required by Paida v. Leach, 260 Kan. 292, Syl. ¶ 1, 917 P.2d 1342 (1996), we reverse. Nicki cross-appeals, arguing that the trial court erred in denying her request for child support. Nicki further contends that the trial court erred in denying a portion of her claimed attorney fees. We disagree.

Nicki testified that she and Charles were divorced in 1990. Initially, Nicki had residential custody of Nicholas. In 1995, due to Nicki's emotional problems and Nicholas' desire to live with his father, Nicki and Charles agreed that Nicholas should live with Charles.

Charles testified that on the morning of June 3, he reminded Nicholas that he (Nicholas) had a psychologist's appointment at 3 o'clock that afternoon. Nicholas wanted to skateboard instead. Charles testified that he explained to Nicholas that it was particularly important that he keep the appointment because he was failing three subjects in school and disrupting classes. Nicholas had already missed one appointment. Charles testified that Nicholas stated that he would go either to summer school or to see the psychologist. Charles gave Nicholas permission to go out but told him that he had to be back by 2 p.m. Nicholas left home between 10:30 and 11 a.m. Between 6 and 6:30 p.m., Nicholas called home and asked to stay all night with a friend. Charles said, "[N]o, Nick, you were supposed to be back here at 2:00; you didn't show; you are in trouble. I want to come and get you."

In describing the discipline that he administered to Nicholas, Charles testified:

In explaining that previous methods of disciplining Nicholas had been ineffective, Charles testified:

Although Charles testified on cross-examination that he intended to inflict some pain on Nicholas by switching him, he stated that he did not intend to injure him:

Nicholas testified that although he told his father he would be visiting a friend and skateboarding, Charles reminded him that he (Nicholas) had a psychologist's appointment that afternoon and told him to return home by 3 p.m. Nicholas described the incident as follows:

After his father picked him up, Nicholas described the discipline that he received when he arrived home as follows:

Although Nicki did not witness the incident, she testified that Nicholas called and told her that Charles had beaten him with a stick. Nicki went to pick Nicholas up and then called the police. Testifying that Nicholas had welts on his back and a reddened area on his face, Nicki described these injuries as follows:

A police officer described Nicholas' injuries as a 10- to 12-inch welt which was red in color and went from midway in his back to his side and a "red area around his eye that looked like it was beginning to bruise, but it had not started yet." The officer testified that Nicki and Nicholas refused his offer to call an ambulance because they "did not believe it was necessary."

Charles argues that the trial court erred in finding that a protection from abuse order was warranted. To address this question, we must review the trial court's findings of fact and conclusions of law, and our standard of review is as follows:

Moreover, when this court considers conclusions of law, our standard of review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

K.S.A. 60-3104 of the Protection from Abuse Act, K.S.A. 60-3101 et seq., provides in part:

The applicable portions of K.S.A. 60-3102 provide:

"The Act requires the district court to conduct a hearing 'at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence and the defendant shall have an opportunity to present evidence on the defendant's behalf.' K.S.A. 60-3106(a)." Paida v. Leach, 260 Kan. 292, 296, 917 P.2d 1342 (1996).

Our Supreme Court recently interpreted the Protection from Abuse Act in Paida. Like the present case, the mother in Paida moved for protection from abuse on behalf of her two teenage children. The parents were divorced and the father had custody of the children. After an altercation with the son in which the father pulled the son's arm behind his back, the daughter interceded on her brother's behalf. By the daughter's own testimony, she yelled profanities at her father, who later washed her mouth out with a bar of soap. The son sustained a sore shoulder and the daughter had small cuts on her lips from her braces. After hearing the evidence, the trial court found that the plaintiffs had failed to sustain their burden of proof and dismissed the case. The mother appealed, arguing that the trial court had disregarded undisputed evidence that the children had been abused. In disagreeing with the mother's contention, our Supreme Court explained what the legislature intended when it used the phrase "bodily injury" in the Act. In seeking a proper definition for the words "bodily injury," the court quoted:

Synthesizing several definitions, the court stated: "We conclude that bodily injury under the Act requires a finding of substantial physical pain or an impairment of physical condition." (Emphasis added.) 260 Kan. at 301. The court then applied this standard to the Paida facts and reasoned:

The Paida court also emphasized that the legislature did not intend that the Act dictate parental discipline. Distinguishing between discipline and abuse, the Paida court reasoned:

Applying Paida to the facts of the instant case, Charles argues that the evidence did not demonstrate that Nicholas suffered substantial physical pain or impairment of his physical condition. Charles argues that any pain Nicholas suffered was insubstantial and temporary and that the welts and reddening were temporary manifestations of reasonable disciplinary measures.

Nevertheless, Nicki argues that Paida is distinguishable from this case in that Paida dealt solely with K.S.A. 60-3102(a). Unlike Paida, Nicki argues that the present case was brought under both K.S.A. 60-3102(a) and (b). Although the trial court neglected to specify under which subsection it had determined that the abuse occurred, the trial court's decision dealt solely with the bodily injury aspect of K.S.A. 60-3102(a). Nevertheless, we will address briefly K.S.A. 60-3102(b) and the first prong of K.S.A. 60-3102(a).

Under K.S.A. 60-3102(b), there is no requirement of actual injury. The respondent's conduct must constitute a physical threat which causes the child to fear imminent bodily injury. Although Nicholas stated that he was afraid while Charles was switching him, he never stated that he was in fear of imminent bodily injury, as required by K.S.A. 60-3102(b). Because Nicki failed to produce evidence that Nicholas was in fear of imminent bodily injury, the evidence was insufficient to find abuse under this subsection.

Next, we must determine whether the evidence was sufficient to find that Charles willfully attempted to cause substantial physical pain or physical impairment to Nicholas under K.S.A. 60-3102(a). Although the testimony was conflicting as to the size of the switch Charles used, the evidence was lacking as to whether Charles willfully attempted to cause substantial physical pain or physical impairment to Nicholas. To the contrary, Charles testified that he only wanted to inflict "a little pain" on Nicholas for failing to keep his scheduled appointment with the psychologist. Charles further testified that he did not intend to injure Nicholas, and Nicki has failed to produce sufficient evidence to the contrary.

Moreover, as to K.S.A. 60-3102(b) and to the first prong of 60-3102(a), Nicki does not argue on appeal that the evidence was sufficient for the trial court to find abuse under either of these theories. Even though an issue may be incidentally raised in a brief, if not argued, it will preclude our review of the issue. See Brubaker v. Branine, 237 Kan. 488, 490, 701 P.2d 929 (1985).

Finally, for Charles' conduct to constitute abuse, we must determine if Nicki proved that Charles either willfully or wantonly caused Nicholas to sustain a substantial injury. First, we will address whether Charles intended to cause a substantial injury to Nicholas. Nicki argues in her brief that "the evidence of [Charles'] wrongful intent is abundant." We disagree. As stated earlier, the evidence was insufficient to show that Charles intended to cause injury to Nicholas. Although Nicholas testified that Charles hit him six or seven times with the switch, Nicholas testified to feeling only one hard hit. This hit was to his back. From previous testimony, we know that this hit did not break Nicholas' skin. Consequently, we determine that Nicki failed to meet her burden on this issue.

Next, in discussing wanton conduct, the Paida court stated that "[w]anton conduct without [causing substantial physical pain or physical impairment] is not a basis for injunctive relief under the Act. K.S.A. 60-3102(a)." 260 Kan. at 297. Consequently, if the evidence fails to show that Nicholas suffered substantial pain or injury, we need not address whether Charles' conduct was wanton. Paida, 260 Kan. at 301.

In finding that Charles injured Nicholas, the trial court stated:

These statements indicate that the trial court erroneously interpreted the statute to prohibit any discipline involving the "infliction of pain or any injury." In seeking to limit trial court discretion and intervention in the way parents discipline their children, the Paida court stated:

Here, the trial court did not determine the extent of Nicholas' injury, and Nicki did not show that the discipline of Nicholas caused him substantial physical pain or physical impairment. Nicholas' welts and the reddening on his cheek were no more substantial than the daughter's cut lip and the son's sore arm in Paida. Moreover, Nicholas neither sought nor received medical attention, nor did he testify as to any enduring effects from the incident. Based upon the standards set out in Paida, the trial court's legal conclusion that "the infliction of pain or any injury" on a child would constitute abuse within the meaning of the Kansas Protection from Abuse Act was improper.

Next, Nicki appeals the trial court's ruling denying a portion of her requested attorney fees. Nicki argues that the attorney fee award was inadequate and, therefore, penalizes her for bringing the instant action. Nicki argues that the trial court's order granting $750 of the requested $5,005 was an abuse of the court's discretion. We disagree.

At the conclusion of the hearing, Nicki requested that the court rule on the issue of attorney fees. The trial court directed that Nicki's counsel submit an itemization of his time and charges incurred on the case. In response, Charles filed a detailed objection to the requested fees. Next, Nicki responded to Charles' response.

Contrary to Nicki's argument, the fact that the trial court did not award the full amount of the requested fees does not mean that the court failed to consider the time Nicki's counsel invested in the case or the difficulty and complexity of the issues involved. Although Nicki's counsel may have spent many hours in preparing this case, the petition was a simple form which merely required check marks in the appropriate boxes. In addition, the trial court limited the scope of the hearing. Finally, Nicki does not contend that the trial court's decision was guided by passion or prejudice. Therefore, despite the fact that a different judge may have awarded a different amount, either more or less, the record does not support a finding that the trial court abused its discretion.

Charles argues that the trial court erred in awarding any attorney fees because the underlying order was erroneous. We disagree. K.S.A. 60-3107(a)(7), which allows the trial court to award attorney fees and costs to either party, has not been interpreted by our appellate courts.

The legislature stated its intent that the Act "be liberally construed . . . to facilitate access to judicial protection for the victims of domestic violence." K.S.A. 60-3101(b). If we were to construe the Act as suggested by Charles, this would place a chilling effect upon the bringing of borderline cases to the attention of the court system. We decline to adopt that reasoning. Furthermore, because K.S.A. 60-3107(a)(7) does not require a party's success as a condition to receiving an attorney fee award, the trial court did not abuse its discretion in awarding Nicki $750 for attorney fees.

Next, Nicki argues that the trial court erred in denying her request for child support. Although the trial court entered a protection from abuse order, the court did not order child support. Instead, the trial court instructed the parties to return to the hearing officer to resolve that issue. In allowing the trial court to award child support, the Act provides in K.S.A. 60-3107:

Nicki argues that the trial court's order that she return to the hearing officer for a modification is inherently prejudicial to her because she would be unable to recoup support payments for at least 2 months. Nicki reasons that K.S.A. 60-1610(a)(1), which provides for changes or modifications of child support, only allows modifications "retroactive to a date at least one month after the date that the motion to modify was filed with the court." Nicki was awarded custody under a temporary order dated June 4, 1996. The final protection from abuse order, which again granted Nicki custody but denied her request for support, was filed July 18, 1996. Therefore, she argues, she cannot recover child support for the period from June 4, 1996, through July 18, 1996, and for at least 1 month after the date the petition for modification of support is filed.

Charles argues that the trial court did not have the necessary financial information of the parties to rule upon the issue of child support. We agree. If the trial court was provided with the parties' financial information, Nicki has failed to include such information in the record on appeal. "'An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant's claim of alleged error fails.' [Citation omitted.]" McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Consequently, Nicki's argument fails.

Affirmed in part and reversed in part.

BELL, J., concurring in part and dissenting in part: The majority has been led to the conclusion that the standard of review is a question of statutory interpretation and, therefore, a question of law over which this court has unlimited review rather than whether there is any evidence to support the trial judge's decision.

My search of the record on appeal has turned up nothing to indicate that the trial judge was not fully aware of our Supreme Court's definition of abuse as set forth by Justice Allegrucci in Paida v. Leach, 260 Kan. 292, 296, 917 P.2d 1342 (1996).

In fact, the record reveals the following exchange prior to the reception of evidence:

Later the trial judge ruled that "in this case father went too far." The record can only be read to indicate noncompliance with the Paida standard by the negative inference of adding emphasis to the part of the trial judge's ruling in which he said, "Under the statute, discipline cannot involve the infliction of pain or any injury. And in this case we do have an indication of injury, and that is where he crossed the step beyond the line here."

I believe the proper standard of review was set forth by Justice, now Chief Justice, McFarland in Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). Although in that case the trier of fact was a jury, it should be noted that the following language was used by Justice Lockett in the nonjury case of Lentz Plumbing Co. v. Fee, 235 Kan. 266, 269, 679 P.2d 736 (1984):

I respectfully suggest that the brevity of the trial judge's factual findings with respect to the underpinnings of the abuse should not be a platform for this court to conclude that the trial judge did not understand the evidentiary requirements under the Protection from Abuse Act.

It appears to me that the finding of abuse in this case is more one of fact than of law and that the findings of the trial court should be affirmed.

I concur with the balance of the opinion.