                      In the Missouri Court of Appeals
                              Eastern District
                                        DIVISION THREE

S.H.,                                             )   No. ED107618
                                                  )
        Respondent,                               )   Appeal from the Circuit Court
                                                  )   of St. Louis County
vs.                                               )   18SL-PN06319
                                                  )
P.B.,                                             )   Honorable Mary Bruntrager Schroeder
                                                  )
        Appellant.                                )   FILED: September 17, 2019

                                            OPINION

        P.B. 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.

                               Factual and Procedural Background

        On 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,1 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.2

                                        Standard of Review

       Our 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.

                                            Discussion

       P.B. 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

protection.




1
  P.B. asserted that, when served with the ex parte order of protection in the instant case, he was
also served with a separate ex parte order of protection from case number 18SL-PN06317 with a
hearing set for January 7, 2019 in a different division. P.B. noted that he was unaware that the
hearing dates for the two cases were on different dates, and he appeared for the January 7, 2019
hearing, believing that both cases were scheduled for that day. P.B. asserted that he successfully
contested the ex parte order in case number 18SL-PN06317, but learned only then that a full
order of adult protection had already been entered in the instant case in favor of S.H.
2
  S.H. filed no brief in this appeal, and we are therefore without the benefit of whatever argument
she might have presented.

                                                 2
         “In 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 20003. 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).

         The 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



3
    Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended.

                                                  3
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.

                                           Conclusion

       The Judgment is reversed, and the cause is remanded for further proceedings consistent

with this opinion.



                                                     ____________________________
                                                     Honorable Mary K. Hoff


Sherri B. Sullivan, Judge and Angela T. Quigless, Judge: Concur




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