Elgin v. Swann

• Decision Date: 08 May 2012
• Docket Number: No. A12A0284.,A12A0284.
• Parties: ELGIN v. SWANN.
• Court: Georgia Court of Appeals

315 Ga.App. 809

728 S.E.2d 328

12 FCDR 1650

ELGIN

v.SWANN.

No. A12A0284.

Court of Appeals of Georgia.

May 8, 2012.

Milon Jeremy Daniel Moore, Larry Lee Hicks II, Toccoa, for Appellant.

R.Q. Swann, for Appellee.

McFADDEN, Judge.

Jennifer Elgin appeals from a six-month stalking protective order entered against her pursuant to OCGA § 16–5–94(d). We find that, although the protective order has expired, the issues raised in this appeal are not moot, the trial court employed the proper standard in evaluating the evidence, and it did not abuse its discretion in issuing the protective order. See Pilcher v. Stribling, 282 Ga. 166, 167, 647 S.E.2d 8 (2007) (grant or denial of motion for protective order is reviewed for abuse of discretion). Accordingly, we affirm.

Construed in favor of the judgment, see Garnsey v. Buice, 306 Ga.App. 565, 566(1), 703 S.E.2d 28 (2010), the evidence showed that Jennifer Elgin and R.Q. Swann were neighbors. In July 2011, Elgin and her husband, Lamar Elgin, were in the midst of a divorce, and Swann submitted an affidavit in the divorce proceeding in which he testified to certain of Elgin's activities that he had observed by watching her through a telescopic lens. A few days later, on July 17, Elgin drove by Swann's house honking her car horn and yelling, “Call Lamar.” Swann, his wife, and his stepdaughter (a high school student) were in their front yard at the time. Elgin then pulled into her own driveway and got out of her car. Joined by her sister, Elgin laughed, screamed obscenities at the Swanns, and repeatedly threatened to “kick” or “whip y'all's ass.”

Swann testified that Elgin had never before threatened him, but that her behavior on this occasion caused him to fear for his safety. On July 18, 2011, he petitioned for a stalking protective order and obtained ex parte temporary protective order pending a hearing on his petition.

Before the hearing occurred, on August 4, 2011, Swann's stepdaughter was driving home when she encountered Elgin driving in the opposite direction on the road in front of their houses. As Swann and his wife watched, Elgin swerved her car toward the stepdaughter's car, causing the girl to drive her car partially off of the road. Later that evening Elgin drove past the Swanns' house and, from her vehicle, took pictures of Swann and his family sitting on their front porch. Swann worried about what else Elgin might do and felt that his family had been placed in danger and needed to be protected.

The hearing on the stalking protective order occurred on August 9, 2011. By this time, Elgin had moved out of her house and no longer lived in the neighborhood.

1. We first consider our jurisdiction over this appeal. The trial court issued the six-month stalking protective order on August 9, [315 Ga.App. 810]2011, and it expired on February 9, 2012.

Thus, the issues raised arguably are moot, and mootness is a mandatory ground for dismissal. However, if an issue is capable of repetition yet evades review, we do not view that issue as moot. This is true for those matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.

(Citation omitted.) Birchby v. Carboy, 311 Ga.App. 538, 540(2), 716 S.E.2d 592 (2011); see Collins v. Lombard Corp., 270 Ga. 120, 122, 508 S.E.2d 653 (1998).

The issues presented in this appeal are capable of repetition. At its core, this appeal concerns whether evidence of discrete threats between former neighbors can show a pattern of harassing or intimidating conduct and a potential for future stalking. This question could arise again in the context of another stalking protective order. The issues presented in this appeal also are likely to evade review. A stalking protective order is limited by statute to a duration of 12 months, although it can later be renewed for a greater time period or made permanent. See OCGA § 16–5–94(e) (incorporating OCGA § 19–13–4(c)). This is the same duration allowed for a protective order issued under the Family Violence Act under OCGA § 19–13–4(c). We have held in the context of appeals from family violence protective orders that the time constraints of appellate courts often render it infeasible to reach the merits of those appeals during the relatively short duration allowed for such orders. See Birchby, 311 Ga.App. at 540(2), 716 S.E.2d 592 (involving twelve-month protective order); Baca v. Baca, 256 Ga.App. 514, 516(1), 568 S.E.2d 746 (2002) (involving six-month protective order).

Accordingly, we find that the issues raised in this appeal are not moot. Birchby, 311 Ga.App. at 540–541(2), 716 S.E.2d 592.

2. Elgin argues that the trial court did not hold Swann to the proper burden of proof. We disagree. The court's comments at the conclusion of the hearing reflect that the court correctly employed the “preponderance of the evidence” standard in issuing the protective order. See Garnsey, 306 Ga.App. 565–566(1), 703 S.E.2d 28.

3. Elgin argues that there was insufficient evidence to support the issuance of the protective order. Again, we disagree. The evidence presented at the hearing authorized the court to find that Swann had established the elements of stalking, which is defined as “follow[ing], plac[ing] under surveillance, or contact[ing] another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16–5–90(a)(1); see Garnsey, 306 Ga.App. at 565–566(1), 703 S.E.2d 28 (to obtain stalking protective order, petitioner must establish elements of that offense).

“[H]arassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

OCGA § 16–5–90(a)(1).

The evidence supported a determination that Elgin had placed under surveillance and contacted Swann, his wife, and his stepdaughter for the purpose of harassing and...