SECOND DIVISION

MILLER, P. J.,

BROWN and GOSS, 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

February 7, 2019

In the Court of Appeals of Georgia

A18A1560. HERBERT v. JORDAN.

A18A1561. HERBERT v. GOODEN.

BROWN, Judge.

In these consolidated appeals, Damyera Herbert appeals from the trial court’s

grant of twelve-month protective orders to Melissa Jordan and Charles Gooden

(collectively “petitioners”). She asserts that the trial court erred for identical reasons

in both cases by: (1) moving forward with a hearing after the case had been dismissed

as a matter of law; (2) refusing to permit her to move forward with her counterclaim

in the same hearing; (3) granting protective orders that prohibit contact with the

petitioners’ unidentified children; and (4) granting protective orders that prohibit

contact with the petitioners’ immediate family members. Based upon the trial court’s
failure to hold a hearing within 30 days as required by OCGA § 19-13-3 (c), we must

reverse its grant of twelve-month protective orders to the petitioners.

The record shows that on November 21, 2017, Jordan and Gooden filed

separate petitionsfor entry of a “Stalking Temporary Protective Order” under OCGA

§ 16-5-94. The trial court granted the ex parte petitions on the same day, and ordered

Herbert to appear for a hearing on December 20, 2017 (29 days later). On the date of

the scheduled hearing, the trial court entered an order continuing the hearing on both

petitionsto December 26, 2017; the order also provided that the provisions of the “Ex

Parte Protective Orders” would continue in full effect through December 26, 2017.

The record contains no evidence that the parties agreed to this continuance. On the

day of the rescheduled hearing, Herbert filed motions asking the trial court to

conclude that the petitions had been dismissed as a matter of law pursuant to OCGA

§ 19-13-3 (c). The trial court nonetheless held the scheduled hearing and issued the

twelve-month protective orders at issue in this case. 

1. Stalking protective ordersissued under OCGA § 16-5-94 and § 19-13-3must

comply with the requirement that a hearing be held within 30 days of the filing of a

petition for a protective order. In this hearing, “the petitioner must prove the

allegations of the petition by a preponderance of the evidence asin other civil cases.”

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OCGA § 19-13-3 (c). See also OCGA § 16-5-94 (e); White v. Raines, 331 Ga. App.

853, 855-856 (1) (771 SE2d 507) (2015) (physical precedent only). “If a hearing is

not held within 30 days of the filing of the petition, the petition shallstand dismissed

unlessthe parties otherwise agree.” OCGA § 19-13-3 (c). In this case, the trial court’s

failure to meet the 30-day hearing requirement resulted in a dismissal of the petitions

as a matter of law. White,supra, 331 Ga. App. at 856 (1); Peebles v. Claxton, 326 Ga.

App. 53, 55 (1) (755 SE2d 861) (2014) (physical precedent only). Accordingly, it

lacked authority to issue the twelve-month protective ordersfollowing a hearing held

35 days after the petitions were filed. White, supra, 331 Ga. App. at 856 (1). Cf. In the

Interest of I. L. M., 304 Ga. 114 (816 SE2d 620) (2018) (reversing trial court’s order

placing child in custody of the Department of Family and Children Services based

upon the trial court’s failure to comply with a statutory mandate to hold a hearing

within 60 days and statute providing that petition alleging dependency may be

dismissed if hearing not timely).

2. Based upon our holding in Division 1, we need not address Herbert’s

remaining claims of error.

Judgments reversed. Miller, P. J., and Goss, J., concur.

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