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PAIDA v. LEACH6/7/1996
The opinion of the court was delivered by
Sheila Paida sued John Leach, her former husband and custodial parent of their two children, under the Protection from Abuse Act (Act), K.S.A. 60-3101 et seq., seeking an order which would protect the children from abuse by Leach. The district court found no evidence of abuse and dismissed the petition. The district court also reaffirmed the order which placed the children in Leach's custody. Paida appealed. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c).
In this case a hearing was conducted at which Sheila Paida, John Leach (Leach), Jennifer Leach, and John Leach, Jr., (John) testified about an incident which occurred on May 23, 1995. Paida and Leach were married from 1978 to 1984. By the time of the alleged incident, the residential custody of their children, Jennifer and John, had been changed several times. They lived with Leach from 1992 until April 1995. In April, they began living with Paida when Jennifer told a school counselor that Leach had been abusive. On May 18, shortly before the incident at issue, residential custody of the children had been restored to Leach by order of the court. At the time of the incident, John was 13 years old and Jennifer was 15 years old.
John testified that the incident began after Leach refused to let him stay overnight with a friend. Leach had driven his son to school to play basketball with friends, but they found no one at the school. On the drive home, the son asked to spend the night at his friend's house. Leach refused to give permission. John described the argument that followed and that led to Leach's grabbing John's arms and twisting them behind his back, " e just started pulling my arms up and started pulling it out of the socket." At that point, Jennifer entered the fray:
"Then my sister came out of the shower and said, `What are you doing to my brother?' `Go to your room.' That's what he told her. Then he let go of me once. Then he got me back in the arm lock and then he started in on my sister. Started throwing her in the walls and shoved soap in her mouth, cut her lip. Then she went to her bedroom and she was laying on the bed and my dad just took her arm and yanked her off of the bed. And I was standing in the corner like he told me to do. And I was just standing there crying. And he said, `Oh, stop your whining.' Then the phone rang. He picked it up and started talking . . . . We just walked out the door to the neighbor's house."
Jennifer gave the following account of the incident:
"Something happened between my brother and my dad earlier, and I had no idea what was going on. He got home and I got in the shower and I heard yelling and like hitting walls, so I got out of the shower as fast as I could, put some clothes on, went outside and I saw my dad holding my brother with my brother's arms behind his back with this part of his arm up to his head, his head pulled back with his hand. I said, `What are you doing?' Then I got pushed into the wall of the
bathroom. And I said, `Wait a minute, what are you doing?' Then I kind of got loud with him and we went back and forth with cussing at each other . . . .
. . . .
"I called him an asshole. I told him I hated him. And I told him that he pissed me off. And I said it repeatedly, repeatedly. I was sent to my room. I went to my room. I laid down on my bed and he was — I couldn't really — I couldn't see what was going on between him and my brother, but I heard my brother yelling at him. He came in my room and started yelling at me about telling me I was wort
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