Jason R. Hayward v. Kaley Morgan Wisner

• Court: Court of Appeals of Georgia
• Decided: September 1, 2023
• Docket: A23A0692
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., LAND and WATKINS, 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

September 1, 2023

In the Court of Appeals of Georgia A23A0692. HAYWARD v. WISNER.

WATKINS, Judge.

Kaley Wisner civilly petitioned the Superior Court of Paulding County for a

12-month protective order under OCGA § 16-5-94 to enjoin Jason Hayward from

stalking her. Following an evidentiary hearing, the trial court granted the protective

order and enjoined Hayward from, inter alia, contacting or approaching within 10

yards of Wisner. Hayward appeals, arguing that the trial court abused its discretion

in finding a pattern of harassing and intimidating conduct. We disagree and affirm.

“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.”1 “The trial court is in the best position to make determinations on these

issues, and we will not overrule its judgment if there is any reasonable evidence to

support it.”2 In other words, “[i]t is not this Court’s function to second-guess the trial

court in cases such as this, which turn largely on questions of credibility and

judgments.”3

Viewed in this light, the record shows that Hayward was the next-door

neighbor of Wisner, who shared a home with her husband, parents, and children. The

parties had a number of run-ins that escalated during the two-year period preceding

the filing of the petition. According to Wisner, Hayward “verbally attack[ed]” her on

multiple occasions, “screaming” at her and various contractors and county workers

as they attempted to resolve drainage issues in Wisner’s yard.

In July 2022, mistakenly believing that workers on Wisner’s property intended

to remove one of his trees, Hayward came onto Wisner’s property and screamed at

1 (Citations and punctuation omitted.) Ramsey v. Middleton, 310 Ga. App. 300, 302 (713 SE2d 428) (2011). 2 (Citation and punctuation omitted.) Rawcliffe v. Rawcliffe, 283 Ga. App. 264, 265 (1) (641 SE2d 255) (2007). 3 (Citation and punctuation omitted.) Owen v. Watts, 307 Ga. App. 493, 498 (2) (705 SE2d 852) (2010).

2 the workers, Wisner, and her mother. The following week, Wisner filed a petition for

a protective order.

The court entered an ex parte temporary protective order and scheduled a

hearing within 30 days of the filing of the petition.4 At the hearing, the trial court

heard testimony from Wisner, her mother, and Hayward.

At the conclusion of the hearing, the trial court found that, while some of the

behavior went “both ways,” particularly with respect to Wisner’s mother, there had

been an ongoing pattern of harassing behavior by Hayward. The court distinguished

Sinclair v. Daly,5 cited by Hayward, in which we held that there was “no evidence

that [the respondent had] engaged in a pattern of intimidating and harassing behavior

that placed [the petitioner] in reasonable fear for his safety.”6 The trial court found

that, in this case, both Wisner and her mother had testified about concern for their

safety. The court thus enjoined Hayward from contacting Wisner and from

approaching within ten yards of Wisner or her immediately family, or their residence,

place of employment, or school. This appeal followed.

4 See OCGA §§ 16-5-94 (e); 19-13-3 (c). 5 295 Ga. App. 613 (672 SE2d 672) (2009). 6 Id. at 616.

3 Under OCGA § 16-5-94 (a), a person “may seek a restraining order by filing

a petition alleging conduct constituting stalking as defined in Code Section 16-5-90.”

That section provides in relevant part that “[a] person commits the offense of stalking

when he or she follows, places under surveillance, or contacts 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.”7

Hayward argues that the evidence did not support the trial court’s finding that

he had engaged in a pattern of harassing conduct because his speech was not

intimidating and could not have caused a reasonable fear of safety. He also contends

that there was no “pattern,” emphasizing that he only crossed the property line on one

occasion. Hayward argues further that his speech-based conduct served a legitimate

purpose.

Here, the evidence supports the conclusion that Hayward engaged in a pattern

of harassing conduct. Wisner and her mother testified that on multiple occasions

before July 6 Hayward had “screamed” at them, their guests, contractors, and county

employees. According to Wisner’s mother, “every time [Hayward is] screaming, his

7 OCGA § 16-5-90 (a) (1).

4 face is enraged. His eyes bug out of his head. He’s shaking. He’s running. He’s

crazed.”

Wisner testified that she did not feel safe to go outside. Although Wisner’s

mother believed she could defend herself, she testified that she worried about Wisner

or the children being home alone and that they were “all scared.” They both testified

that Wisner’s children were afraid to play in their own yard. Under these facts, the

trial court did not abuse its discretion in finding that Wisner had established the

elements of stalking by a preponderance of the evidence.8

Judgment affirmed. Barnes, P. J., and Land, J., concur.

8 See Rawcliffe, 283 Ga. App. at 265 (1) (holding that the trial court did not err in finding that the respondent knowingly and wilfully stalked the petitioner, under the preponderance of the evidence standard, where the respondent made repeated unwanted and threatening phone calls and the petitioner testified that she feared for her safety); see also OCGA § 19-13-3 (c) (preponderance of the evidence standard); § 16-5-94 (e) (OCGA § 19-13-3 (c) applies to OCGA § 16-5-94 petitions).