THIRD DIVISION

BARNES, P. J.,

BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia

A14A2158. WHITE v. RAINES.

BOGGS, Judge.

William John White appealsfrom the trial court’s order continuing an ex parte

temporary protective order (“TPO”) entered against him. Because the trial court

lacked authority to extend the TPO, we reverse.

The record shows that on April 17, 2014, White’s ex-wife, Susan Raines, filed

a “Petition for Stalking Temporary Protective Order” against White pursuant to

OCGA § 16-5-94. Alleging that White had, among other things, flooded her with

unwanted telephone calls and textmessages, accessed her bank account, and followed

her, Raines claimed that White’s actions placed her in reasonable fear for her and her

family’s safety. The petition requested a hearing and entry of a twelve-month

protective order. 
On the same day, the trial court entered an ex parte TPO enjoining White from

harassing, contacting, or approaching within 500 yards of Raines or her immediate

family. The order also directed White to appear before the court on May 9, 2014, to

“show why the demands of [Raines] should not be granted.” Shortly after the trial

court issued the ex parte order, Raines reported to police that White had violated the

TPO, and White was arrested for aggravated stalking. 

Both parties appeared at the May 9, 2014 hearing. The trial court began by

asking Raines, who was proceeding pro se, about White’s arrest. Counsel for White

interjected that the parties were there “on the ex parte TPO,” not the arrest warrant.

Asserting that the warrant was “part of the evidence,” the court questioned Raines

about the circumstances leading to the arrest. The court then asked her generally

about the allegations underlying her petition. Raines described the conduct by White

that she found objectionable, including his constant effort to communicate with her.

White’s counsel responded that White and Raines had enjoyed consensual

communication since their divorce, with both parties contacting each other and

spending time together. 

At that point, the trial court halted the proceedings. Rather than addressing

Raines’s petition, the court continued the hearing, stating:

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Here’s my solution: I’m going to continue this hearing today. [White]

clearly ignored the order that was issued as filed on April 17, to the

extent that the police found probable cause to arrest him for aggravated

[stalking]. But I’m going to continue this hearing today, leaving the

order in place, and then we’ll come back in 60 days and depending on

what his conduct and behavior is in the next 60 days, I’ll make a

determination to either extend the order or dismiss the petition. 

In a written order, the trial court rescheduled the hearing to July 11, 2014, and

extended the TPO through that date. At White’s request, the trial court issued a

certificate of immediate review. We subsequently granted White’s interlocutory

appeal application, and this appeal followed.

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1. White arguesthat the trial court erred in continuing the ex parte TPO without

addressing the merits of Raines’s allegations. We agree.

1 Although the ex parte TPO was only extended through July 11, 2014, and thus

ended months ago, this appeal is not moot. As we have explained, when an appellate

issue “is capable of repetition yet evades review, we do not view that issue as moot.”

(Citations and punctuation omitted.) Elgin v. Swann, 315 Ga. App. 809, 810 (1) (728

SE2d 328) (2012). The issue in this appeal – the trial court’s authority to extend an

ex parte TPO – may arise in other stalking cases. And given the short duration of

stalking protective orders, as well as the time constraints of appellate courts, it is

likely to evade review. See id. (although stalking protective order expired before

appeal was resolved, the appellate issues were not moot because they were capable

of repetition and evaded review). 

3
A person who claims to have been stalked may petition the trial court for a

restraining order against the alleged stalker. See OCGA § 16-5-94 (a); see also

OCGA § 16-5-90 (a) (defining the offense of stalking). Based on the allegations in

the petition, the court “may order such temporary relief ex parte asit deems necessary

to protect the petitioner.” OCGA § 16-5-94 (c). Mere allegations alone, however,

cannot sustain continuing relief. After entry of an ex parte TPO, the trial court must

conduct an evidentiary hearing in accordance with the procedures governing family

violence restraining orders, which provide:

Within ten days of the filing of the petition . . . or as soon as practical

thereafter, but in no case later than 30 days after the filing of the

petition, a hearing shall be held at which the petitioner must prove the

allegations of the petition by a preponderance of the evidence asin other

civil cases. In the event a hearing cannot be scheduled within the county

where the case is pending within the 30 day period the same shall be

scheduled and heard within any other county of that circuit. If a hearing

is not held within 30 days, the petition shall stand dismissed unless the

parties otherwise agree. 

OCGA § 19-13-3 (c). See also OCGA § 16-5-94 (e) (“The provisions of subsections

(c) and (d) of Code Section 19-13-3 . . . relating to family violence petitions, shall

apply to petitions filed pursuant to this Code section.”).

4
The statutory scheme is clear. A trial court must assess the merits of a

petitioner’s stalking allegations within 30 days after the petition is filed. See OCGA

§ 19-13-3 (c); Perlman v. Perlman, 318 Ga. App. 731, 734 (2) (734 SE2d 560) (2012)

(“[W]ithin 30 days after the filing of the petition, a hearing must be held at which the

petitioner ‘must prove the allegations of the petition by a preponderance of the

evidence.’”) (Punctuation omitted.). This 30-day deadline cannot be ignored. In fact,

it is so important that if a timely hearing cannot be scheduled in the county where the

petition wasfiled, a hearing “shall be scheduled” in another county within the circuit.

OCGA § 19-13-3 (c). Absent a timely hearing, the petition stands dismissed. Id.

The partiesin this case appeared for a hearing within 30 days after Rainesfiled

her petition. That hearing, however, did not comply with OCGA § 19-13-3 (c) in any

substantive way. The trial court questioned Raines briefly, but she was not sworn in

as a witness, and White did not have an opportunity to cross-examine her. No other

witnesses testified.Moreoever, although both parties presented documentary evidence

to the trial court, they did so only after the court had decided to continue the

proceeding, and there is no indication that the court considered the evidence. Simply

put, the trial court did not address the merits of Raines’s petition or require her to

prove her allegations by a preponderance of the evidence within 30 days after the

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petition wasfiled, as mandated by the statute.2

It instead maintained the “status quo,”

extending the ex parte TPO so that it could assess how White behaved over the

ensuing 60 days. 

Given these circumstances, the trial court failed to meet the 30-day hearing

requirement in OCGA § 19-13-3 (c). The petition and ex parte TPO, therefore, were

dismissed by operation of law. See OCGA § 19-13-3 (c); Peebles v. Claxton, 326 Ga.

App. 53, 55 (1) (755 SE2d 861) (2014) (stalking petition and ex parte TPO dismissed

by operation of law where trial court continued TPO hearing and left TPO “in full

effect” past 30-day deadline) (physical precedent only). It follows that the trial court

lacked authority to extend the TPO through July 11, 2014.

2. Given our holding in Division 1, we need not address White’s remaining

claims of error.

Judgment reversed. Branch, J., concurs and Barnes, P. J., concurs in the

judgment only.

2

In fact, the trial court apparently believed the burden rested on White to show

whyRaines’ petition should not be granted. Raines, however, clearly bore the burden

of proof. See OCGA § 16-5-94 (a); OCGA § 19-13-3 (c); Pilcher v. Stribling, 282 Ga.

166, 167 (647 SE2d 8) (2007) (“In order to obtain a protective order based on

stalking, the petitioner must establish the elements of the offense by a preponderance

of the evidence.”). 

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