Michael E. Sullivan, Jr. v. Sherry M. Kubanyi ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 27, 2021
In the Court of Appeals of Georgia
A21A1180. SULLIVAN v. KUBANYI.
BROWN, Judge.
Michael Sullivan, Jr. appeals from a protective order issued in the Fulton
County Superior Court on January 15, 2021. He contends (1) that the trial court’s
order was void and that the victim’s petition for a protective order should have been
dismissed because a hearing was not held within 30 days as required by OCGA § 19-
13-3 (c); (2) that no evidence was presented showing that he engaged in a knowing
and wilful course of conduct, that the victim was placed in reasonable fear for her
safety, or that he engaged in a pattern of harassing or intimidating behavior; (3) that
the trial court abused its discretion by ordering him “to immediately turn over any
drones or other electronic monitoring devices to the Sher[ ]iff’s Office”; and (4) that
the trial court’s protective order improperly banned him from his residence. For the
reasons explained below, we affirm in part and vacate in part.
“The grant or denial of a motion for protective order generally lies within the
sound discretion of the trial court, and will not be reversed absent an abuse of that
discretion.” (Citation and punctuation omitted.) Pilcher v. Stribling, 282 Ga. 166, 167
(647 SE2d 8) (2007). The record in this case shows that the victim filed a verified
petition for a stalking temporary protective order on June 16, 2020, alleging that in
November 2019, Sullivan committed both in-person and cyberstalking by tracking her
vehicle with GPS, showing up at her current location, tracking her by drone at home
and at work, and by hacking into her electronic devices to monitor her. She also
alleged that he “scann[ed her] electronic devices as she entered her home using a
device scanner and began monitoring her in her home, including bathrooms and
bedrooms. [Sullivan] lives above [the victim] in her condo building.” (Punctuation
omitted.)
The trial court issued an ex parte temporary protective order the same day that
enjoined Sullivan from approaching within 200 yards of the victim and precluding all
contact of any type with her or her immediate family. On June 18, 2020, Sullivan was
served with a copy of the trial court’s temporary protective order.
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The trial court first scheduled a hearing “via ZOOM videoconference” on the
victim’s petition for December 2, 2020, but it was continued two times, before
ultimately being heard on January 15, 2021. Despite being served with notice of the
hearing, Sullivan did not appear. According to his amended notice of appeal, “the
parties did not request a Court Reporter for any . . . hearings” and “no takedown of
the matter exists.”
In a written order filed several hours after the hearing was scheduled to begin,
the trial court stated that it heard evidence and concluded that Sullivan “knowingly
and wilfully violated OCGA § 16-5-90 et seq. and placed [the victim] in reasonable
fear for [her] safety.” It enjoined Sullivan from “harassing, interfering, or intimidating
the [victim] or [the victim]’s employees at her law firm” or any other acts in violation
of OCGA § 16-5-90 et seq. At one point in the order, the trial court stated that
Sullivan “hacked [the victim]’s computers . . . and cell phone and has attacked her
law firm. . . . [He] also followed [the victim] by drone, sat a drone outside of her
residence every night for months, and continued such monitoring even after she
moved.”
In addition to enjoining Sullivan from approaching within 200 yards of the
victim, her immediate family, or her place of residence, employment, or school, in
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paragraph four of the twelve-month protective order, the trial court ordered Sullivan
to
immediately turn over any drones or other electronic monitoring devices
to the Sher[ ]iff’s office. If such devices are not returned to the Fulton
County Sher[ ]iff’s Department within 10 days of this Order, [Sullivan]
shall be immediately arrested and confined in the Fulton County Jail
until such devices are provided to the Fulton County Sher[ ]iff’s
Department.
On the same day it entered the protective order, the trial court issued an order for the
arrest of Sullivan if he failed to make three, timely monthly payments for a total of
$4,500, an amount representing the victim’s attorney fees and expenses of litigation
awarded to her by the trial court.
1. Sullivan contends that the trial court’s order is void because a hearing on the
victim’s petition was not held within 30 days as required by OCGA § 19-13-3 (c).
OCGA § 16-5-94 (a) provides: “A person . . . who alleges stalking by another person
may seek a restraining order by filing a petition alleging conduct constituting stalking
as defined in Code Section 16-5-90.” Stalking protective orders issued under OCGA
§ 16-5-94 must comply with the requirement in OCGA § 19-13-3 (c) “that a hearing
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be held within 30 days of the filing of a petition for a protective order.” Herbert v.
Jordan, 348 Ga. App. 538, 539 (1) (823 SE2d 852) (2019).
In this case, it is undisputed that a hearing was not held within the 30-day time
period specified by OCGA § 19-9-3 (c). While this ordinarily would require a reversal
of the trial court’s protective order, Herbert, 348 Ga. App. at 539 (1), the petition was
filed and the trial court’s order was issued during a statewide judicial emergency
declared by the Chief Justice of the Supreme Court of Georgia pursuant to OCGA §
38-3-61 et seq. Pursuant to an emergency order initially issued on March 14, 2020,
and extended through February 7, 2021, deadlines imposed on courts were suspended
and tolled. See Tenth Order Extending Declaration of Statewide Judicial Emergency
(January 8, 2021) (“[r]ecognizing the substantial backlog of pending case, deadlines
imposed on courts shall remain suspended and tolled”); Amended Order Declaring
Statewide Judicial Emergency (March 14, 2020) (“Pursuant to OCGA § 38-3-62, . .
. the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any
deadlines or other time schedules or filing requirements imposed by otherwise
applicable statutes, rules, regulations, or court orders, whether in civil or criminal
cases or administrative matters. . . .”). Accordingly, we find no merit in Sullivan’s
claim that the trial court’s order is void.
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2. Sullivan asserts that no evidence was presented showing that he engaged in
a knowing and wilful course of conduct, that the victim was placed in reasonable fear
for her safety, or that he engaged in a pattern of harassing or intimidating behavior.
See OCGA § 16-5-90 (a). “[I]n the absence of a transcript or an acceptable substitute,
we must assume that the evidence presented at the hearing was sufficient to support
the trial court’s decision to award a . . . protective order.” McCarthy v. Ashment, 338
Ga. App. 858, 862 (2) (790 SE2d 651) (2016). See also Babinsack v. Alfonso-Garcia,
337 Ga. App. 113, 115 (3) (786 SE2d 501) (2016) (physical precedent on other
grounds). We therefore find no merit in this enumeration of error.
3. Sullivan contends that the trial court erred by ordering him to forfeit any
drone or other type of electronic monitoring equipment. Setting aside Sullivan’s
evidentiary arguments, which cannot be considered based upon the lack of a
transcript, we agree with his contention that the trial court lacked authority to order
him to forfeit personal property. OCGA § 16-5-94 (d) authorizes a trial court to issue
a protective order requiring a party (1) to refrain from stalking conduct, as well as
from harassing or interfering with the other party, (2) to receive psychiatric or
psychological services, and (3) to pay attorney fees. It does not authorize a trial court
to direct a party to surrender personal property to law enforcement, and the trial court
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in this case abused its discretion by imposing such a requirement. See Rawcliffe v.
Rawcliffe, 283 Ga. App. 264, 266 (2) (641 SE2d 255) (2007) (“Because the court was
not specifically authorized [by OCGA § 16-5-94 (d)] to prohibit [appellant] from
owning or possessing a firearm, that portion of the protective order is . . . vacated.”).
Cf. Moses v. Jordan, 310 Ga. App. 637, 648 (5) (714 SE2d 262) (2011) (“nothing in
the Civil Practice Act provides authority for a trial court to confiscate the personal
property of a party through a protective order under the guise of determining the
scope of permissible discovery”), reversed on other grounds, Jordan v. Moses, 291
Ga. 39 (727 SE2d 460) (2012). Accordingly, we vacate Paragraph Four of the trial
court’s protective order.
4. In his remaining claim of error, Sullivan argues that the trial court’s order
effectively banned him from his residence. In support of this argument, Sullivan
points to no facts and summarizes this court’s holding in Bruno v. Light, 344 Ga.
App. 799 (811 SE2d 500) (2018).
Based upon our review of the record, it appears that at the time the victim filed
her petition in June 2020, Sullivan lived “above [p]etitioner in her condo building.”
But in its order granting the protective order, the trial court referenced continued
monitoring of the victim by Sullivan “even after she moved.” Accordingly, in the
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absence of the transcript, Sullivan cannot show that the trial court’s order precluding
him from being within 200 yards of the victim’s residence effectively banned him
from his own residence as it appears that the victim may have moved her residence.
Judgment affirmed in part, and vacated in part. Doyle, P. J., and Reese, J.,
concur.
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