                IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
STEPHANIE TRISLER,                                )
                                                  )
                  Appellant,                      )
                                                  )
          v.                                      )       WD78057
                                                  )
HENRY BERRY,                                      )       Opinion filed: August 11, 2015
                                                  )
                  Respondent.                     )

            APPEAL FROM THE CIRCUIT COURT OF RAY COUNTY, MISSOURI
                     The Honorable James C. Thompson, Judge

                    Before Division One: Cynthia L. Martin, Presiding Judge,
                      Joseph M. Ellis, Judge and James E. Welsh, Judge

          Appellant Stephanie Trisler appeals from a purported judgment entered by the

Circuit Court of Ray County denying her petition for an order of child protection against

Respondent Henry Berry. For the following reasons, the appeal is dismissed

          On September 8, 2014, Appellant filed a petition seeking an order of child

protection against Respondent.1 In her petition, Appellant requested an ex parte order

of protection as well as a full order of protection preventing Respondent from having any

contact with Appellant's daughter.

          That same day, in a docket entry denominated an "order" and initialed by the

judge, the circuit court denied Appellant's request for an ex parte order. The September


1
    Respondent is the step-grandfather of Appellant’s daughter.
8, 2014 docket entry reflects that the request for an ex parte order was denied because:

"1) Allegations do not meet statutory definition of abuse or stalking; 2) Custody order

exists; and 3) No immediate and present danger of abuse to Petitioner[.]" In a separate

docket entry on September 9, 2014, the circuit court dismissed Appellant's petition

without prejudice.

          Following the dismissal, Appellant filed her "Motion for Entry of Judgment and

Suggestions in Support Thereof." In her motion, Appellant requested that the circuit

court denominate its September 8, 2014 order a judgment. On September 26, 2014,

the circuit court granted Appellant's motion and, in a docket entry, stated it was "hereby

denominat[ing] the order of September 8th 2014 as a judgment pursuant to Rule 74.01."

Appellant then timely filed this appeal.

           Appellant raises three points of error regarding the dismissal of her petition for

an order of child protection.      However, before we can address the merits of those

points, we must first determine whether we have the authority to entertain this appeal.

West v. Sharp Bonding Agency, Inc., 327 S.W.3d 7, 10 n.5 (Mo. App. W.D. 2010)

("We have a duty to determine sua sponte whether we have jurisdiction to review an

appeal."). We acquire the authority to "review a case upon the issuance of a 'final

judgment' from a court below." Id. (citing § 512.020(5) and Rule 74.01). "If the trial

court's judgment is not final, we lack authority to consider the appeal and must dismiss"

it. Id.

          Rule 74.01(a) provides: "A judgment is entered when a writing signed by the

judge and denominated 'judgment' or 'decree' is filed." Here, at Appellant's request, the

circuit court denominated its September 8, 2014 order as a judgment.                     The



                                               2
corresponding docket entry was initialed by the judge. The Notice of Appeal asserts

that the appeal is from the September 8, 2014 docket entry/order that the circuit court

subsequently designated a judgment. Nevertheless, Appellant is not appealing from the

September 8, 2014 order.2

        All points raised by Appellant on appeal relate to the dismissal of her petition for

an order of child protection. The September 8, 2014 order denied only Appellant's

request for an ex parte order of child protection.3 It is the separate, September 9, 2014

docket entry in which the circuit court dismissed, without prejudice, Appellant's petition

for an order of child protection. Therefore, we must determine whether the September

9, 2014 docket entry constitutes a final, appealable judgment.

        "A dismissal without prejudice permits the party to bring another civil action for

the same cause, unless the civil action is otherwise barred." Chavez v. Walters, 78

S.W.3d 234, 236 (Mo. App. W.D. 2002) (internal quotation omitted). "Accordingly, as a

general rule, a dismissal without prejudice is not a final judgment from which an appeal

may be taken." Id. An exception to this general rule exists, however, "[w]hen the effect

of the order is to dismiss the action and not merely the pleading." Id. Thus, "where re-

filing of the petition would be futile, the order of dismissal is appealable." Barazi v.

Eckoldt, 180 S.W.3d 507, 510 (Mo. App. E.D. 2005).




2
  Immediately after the caption, the Notice of Appeal recites: “Notice is given that Petitioner, Stephanie
Trisler, appeals from the judgment/decree entered in this action on September 8, 2014.” Later the in
Notice, under the section designated “Brief Description of Case,” Appellant states that “[t]his is an appeal
from a Judgment dismissing a Child Order of Protection petition. . . . [O]n September 9, 2014, the case
was dismissed by the Court without prejudice. Appellant appeals the dismissal of the Petition. . . .”
3
  We note that Appellant concedes in her brief that the existence of a custody order pertaining to her
daughter precluded the circuit court from issuing an ex parte order of child protection. See § 455.513.1
RSMo Cum. Supp. 2013 (providing that before an ex parte order of child protection can issue, there must
be a “finding that no prior order regarding custody is pending or has been made”).

                                                     3
       Here, the circuit court did not specify the basis for its dismissal. The docket entry

for September 9, 2014 simply states: "Dismiss by Ct w/o Prejudice." Although Appellant

asserts in her Notice of Appeal that she cannot amend her petition and "must stand on

the facts originally pleaded," her assertion is unfounded since it cannot be determined

from the entry of dismissal whether the circuit court intended to merely dismiss the

pleading or the action itself.   Moreover, the docket entry is neither denominated a

judgment nor signed by the judge. Therefore, it does not comply with the mandates of

Rule 74.01(a). Coe v. Coe, 349 S.W.3d 433, 434 (Mo. App. S.D. 2011); Devitre v.

Orthopedic Ctr. of St. Louis, LLC, 282 S.W.3d 414, 414 (Mo. App. E.D. 2009).

Accordingly, the circuit court's dismissal, without prejudice, of Appellant's petition for an

order of child protection did not constitute a final, appealable judgment.

       Appeal dismissed.




                                                  ________________________________
                                                  Joseph M. Ellis, Judge
All concur.




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