DocketNumber: No. SD 35478
Citation Numbers: 561 S.W.3d 104
Judges: Bates
Filed Date: 10/1/2018
Status: Precedential
Modified Date: 1/21/2022
Kimberly Fariss (Fariss) appeals from a judgment granting Amy Main (Main) a full order of protection pursuant to the Adult Abuse Act (the Act) after a bench trial. See §§ 455.010-.090.
On January 26, 2018, Main filed a verified pro se petition under the Act seeking an order of protection against Farris. As is common, it was completed using Supreme Court Form AA40, which was approved for use as a petition for an order of protection involving an adult and is available on the court website of the Supreme Court of Missouri.
A hearing on Main's entitlement to a full order of protection was held on March 5, 2018.
*106"On appeal, the judgment of the trial court is presumed to be correct and the burden is on the party contesting the judgment to show the trial court's error." American Surgery Center of St. Louis, Inc. v. Collins ,
The first prong of Fariss' point challenges the sufficiency of the pro se petition requesting an order of protection. She contends the petition was inadequate because, apart from the checked boxes on the pre-printed form, it contained only "bare" factual allegations which did not constitute either stalking or harassment under the Act. This issue is not preserved for appellate review because the record before us, consisting only of the legal file, does not demonstrate that this issue was presented to and decided by the trial court. See Rule 78.09; Brown v. Brown ,
The second prong of Farris' point challenges the sufficiency of the evidence to prove stalking or harassment. Appellate courts are courts of review. Davis v. Davis ,
Rule 81.12(a) provides: "The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision." Id . That record includes a legal file component and a transcript component. "It is the appellant's duty to order the transcript and compile the record on appeal." J.L. v. Lancaster ,
*107Rule 81.12(c)(5). When the proceedings are recorded by means of an electronic sound recording, the transcript component of the record on appeal is obtained by ordering the transcript, in writing, from the clerk. Rule 81.12(c)(1).
We have confirmed that a record of the evidentiary hearing on the full order of protection was preserved on sound recording equipment. "It is the appellant's burden to file portions of the transcript so that the record on appeal contains all of the evidence necessary for determination of a question presented to the appellate court for its review; and when an appellant fails to do so, the court will presume that the transcript would have been unfavorable to the appellant." Beckmann v. Miceli Homes, Inc. ,
Because Fariss has failed to overcome the presumption that the trial court's judgment was correct, her point lacks merit. The judgment of the trial court is affirmed.
DANIEL E. SCOTT, J. - CONCUR
MARY W. SHEFFIELD, J. - CONCUR
All statutory references are to RSMo (2016). All rule references are to Missouri Court Rules (2018).
Main used the uniform form for petitions which was developed by our Supreme Court in response to legislative mandate. See § 455.025 ("The supreme court ... shall provide forms for petitions and written instructions on filling out all forms and pleadings necessary for the presentation of the petition to the court."); § 455.073 ("[T]he supreme court of the state of Missouri shall: (1) Develop and adopt uniform forms for petitions and orders of protection; and (2) Provide the forms to each circuit clerk."); Supreme Court Form AA40 available at https://www.courts.mo.gov/page.jsp?id=533; see also S.D. v. Wallace ,
The trial court's judgment reflects that both parties attended the hearing and were represented by counsel. The box on the notice of appeal for "Sound Recording Equipment" is checked. This Court confirmed, via order to the McDonald County circuit clerk, that a record of the hearing was made by electronic sound recording and that Farris never requested that a transcript of the hearing be prepared.
This point is multifarious because it challenges both the sufficiency of the petition and the sufficiency of the evidence at trial in a single point. These two alleged errors, which involve different standards and methods of review, should not be combined together. A point relied on containing multiple claims of error violates Rule 84.04(d) and ordinarily is subject to dismissal. Patterson v. Pilot ,