Opinion
No. ED 79273
February 5, 2002
Appeal from the Circuit Court of St. Louis County, Honorable Thea A. Sherry.
Bruce F. Hilton, 12209 Big Bend Boulevard, Kirkwood, Missouri, 63122, for Respondent.
Ellen F. Watkins, 120 S. Central, Suite 1600, St. Louis, Missouri, 63105, for Appellant.
Kevin Anderson (hereinafter, "Anderson") appeals the Full Order of Child Protection entered against him on December 14, 2000 by the Circuit Court of St. Louis County. Anderson claims that he cannot perfect his appeal due to the unavailability of the transcript from his hearing. We reverse and remand the cause.
On November 14, 2000, Mary Carol Parker (hereinafter, "Parker") filed a petition for an order of child protection against Anderson. The trial court granted Parker's petition and issued an ex parte order of child protection. Following a full hearing on December 14, 2000, the trial court entered a full order of child protection against Anderson which was effective for 180 days. The trial court denied Anderson's motions to set aside the judgment or for new trial; Anderson appeals.
Parker failed to file a brief in response to this appeal. While the respondent is not mandated to file a brief on appeal, the failure to do so is an imposition on the court and leaves us dependent upon appellant's presentation. See, In re A.T.H., 37 S.W.3d 423 (Mo.App.S.D. 2001). Further, the failure to file a brief on appeal precludes one from presenting oral argument. Missouri Court of Appeals, Eastern District Special Rule 395(f) (2001).
Anderson raises two points on appeal. In one point, Anderson claims that this Court has jurisdiction to hear this appeal even though the full order of child protection expired on June 13, 2001. We agree. The applicability of the Child Protection Orders Act, Sections 455.500- 455.538 RSMo (2000) is of general public interest and importance; and due to the necessary lapse of time between filing the notice of appeal and the decision, the issues presented could evade appellate review. In re A.T.H., 37 S.W.3d 423, 426 (Mo.App.S.D. 2001); see also Beckers v. Seck, 14 S.W.3d 139 (Mo.App.W.D. 2000).
Anderson additionally claims that since the transcript of the full order of child protection hearing is unavailable and he cannot perfect his appeal, the judgment of the trial court should be vacated. After filing his notice of appeal, Anderson requested a copy of the transcript from the Office of the Circuit Clerk of the Circuit Court of St. Louis County. Anderson received correspondence from the Office of the Circuit Clerk dated June 8, 2001 informing him that no formal record was made at the full hearing and no transcript could be provided.
The text of the letter reads: "Please be advised that there was no formal record made in the above-captioned cause, and, therefore, no transcript can be provided. Thank you."
Circuit courts are courts of record. Section 476.010 RSMo (2000). During oral argument, counsel for Anderson affirmatively represented to this Court that a formal request for the hearing to be recorded was made on the record by trial counsel. However, the paradox presented is that the request allegedly was made on the record which is unavailable. "Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his ( sic) clients." State ex rel. Atchison, Topeka and Santa Fe Ry. Co. v. O'Malley, 898 S.W.2d 550, 552 (Mo.banc 1995) ( citing, Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947)). As appellate counsel is an officer of the court, we thereby trust that he made accurate representations during oral argument. Thus, we reverse and remand the cause to the circuit court so that a formal record may be made.
We note that the judge in this case was an associate circuit court judge sitting as a circuit court judge.
We would suggest that the inclusion of an affidavit by the trial counsel would have been a superior method in which to assert this claim.
Mary R. Russell, J., and Mary K. Hoff, J.,