Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 18SL-PN06319
Honorable Mary Bruntrager Schroeder
HONORABLE MARY K. HOFF JUDGE
appeals from the trial court's Judgment granting a full
order of adult protection against him and in favor of S.H. We
reverse and remand.
and Procedural Background
December 14, 2018, S.H. filed a petition for an order of
adult protection against P.B., and the matter was assigned to
an associate circuit judge for a full hearing and
determination on the record. That same day, the trial court
issued an ex parte order of protection, and a hearing was set
for December 31, 2018. On December 18, 2018, P.B. was served
with the ex parte order. P.B. filed no consent to a full
order of protection. On December 31, 2018, P.B. failed to
appear at the scheduled hearing, and a full order of
protection was entered against him for a period of one year,
effective until December 30, 2019. On January 8, 2019, P.B.
filed a notice of appeal. On January 16, 2019, P.B. filed a
request for the transcript of the December 31, 2018 hearing,
but instead received a letter from the Office of the Circuit
Clerk notifying him that "there was no formal recording
made in the above captioned cause regarding the date
12-31-2018; therefore no transcripts can be provided."
On January 23, 2019, P.B.'s counsel entered his
appearance and filed a Motion to Set Aside Judgment and Order
for New Trial, arguing that P.B.'s absence from the
December 31, 2018 hearing was the result of a good faith
mistake,  and denying the claims alleged in the
petition for an order of adult protection. A hearing on
P.B.'s motion to set aside was set for February 4, 2019.
On February 1, 2019, P.B.'s initial appeal was dismissed
without prejudice on his own motion. On February 4, 2019,
following a hearing, the trial court denied P.B.'s Motion
to Set Aside. P.B.'s appeal follows.
review in a case for an order of protection is the same as in
any other court-tried case. B.J.T. v. D.E.C., 567
S.W.3d 688, 690 (Mo. App. E.D. 2019). Thus, we will affirm
the trial court's judgment if it is supported by
substantial evidence, is not against the weight of the
evidence, and does not erroneously declare or apply the law.
Id. at 690-91.
raises two points on appeal. However, we are unable to review
this appeal in the absence of a transcript of the December
31, 2018 hearing on S.H.'s petition for an order of adult
any case assigned to an associate circuit judge to be heard
upon the record as authorized by law, the associate circuit
judge shall utilize electronic, magnetic, or mechanical
sound, or video recording devices, or a court reporter, or a
stenographer for the purpose of preserving the record."
Section 478.072.1 RSMo 2000. Likewise, except for cases that
may be subject to a trial de novo pursuant to Section
512.180.1, "[i]n all  contested civil cases tried with
or without a jury before an associate circuit judge or on
assignment under such procedures applicable before circuit
judges…a record shall be kept, and any person
aggrieved by a judgment rendered in any such case may have an
appeal upon that record to the appropriate appellate
court." Section 512.180.2 (emphasis added). "At the
discretion of the judge, but in compliance with the rules of
the supreme court, the record may be a stenographic record or
one made by the utilization of electronic, magnetic, or
mechanical sound or video recording devices." Section
512.180.2. Thus, "[w]hen assigned to hear cases on the
record, associate circuit judges are required to
'preserve the record' utilizing approved methods of
sound recording or a court reporter." Sellenriek v.
Director of Revenue, 826 S.W.2d 338, 342 (Mo. Banc 1992)
(citing Sections 472.072 and 512.180.2).
instant case was assigned to an associate circuit judge.
Although required by Sections 478.072 and 512.180.2, no
record of the December 31, 2018 hearing on S.H.'s
petition for an order of adult protection was made. Thus,
while P.B. exercised due diligence in seeking preparation of
a complete transcript, the circuit clerk could provide no
transcript to P.B., and P.B., in turn, could file no
transcript with this Court. The record on appeal, therefore,
is incomplete. "In cases where there is an incomplete
record on appeal because no record was made of the trial
court proceeding, we must reverse the judgment of the trial
court and remand so that a proper record can be made."
A.L.C. v. D.A.L., 421 S.W.3d 569, 570 (Mo. App. E.D.
2014); see also, e.g., Lynn v.
Plumb, 808 S.W.2d 439, 440 (Mo. App. S.D. 1991)
(reversing and remanding cause for preparation of proper
record where appellant sought, but could not obtain,
transcript because tape of proceeding was lost through no
fault of appellant); and Glover v. Saint Louis County
Circuit Court, 157 S.W.3d 329, 330-31 (Mo. App. E.D.
2005) (reversing and remanding for further proceedings where
no record was made in circuit court, including transcript).
Accordingly, we reverse the trial court's judgment
granting S.H. a full order of adult protection and remand for
further proceedings so that a proper record can be made.
Judgment is reversed, and the cause is remanded for further