In the Missouri Court of Appeals 

Eastern District

DIVISION ONE

DEONDA L. POKE, ) No. ED101902

)

Petitioner, ) Appeal from the Circuit Court of

 ) the City of St. Louis

vs. )

) Honorable Elizabeth B. Hogan

ALBERT MATHIS, )

) Filed: April 14, 2015

Respondent, )

)

AND )

)

STATE OF MISSOURI, DEPARTMENT )

OF SOCIAL SERVICES, FAMILY )

SUPPORT DIVISION, )

)

Third-Party Respondent/Appellant. )

INTRODUCTION

The Family Support Division of the Missouri Department of Social Services (the 

“Division”) appeals the trial court’s judgment abating a portion of the child support obligation 

owed by Albert Mathis (“Father”). On appeal, the Division argues the trial court erred in abating 

Father’s child support obligation, because he failed “to plead or prove” the necessary statutory 

elements to justify the abatement. Because the record on appeal does not contain a transcript of 

the hearing, the matter is not preserved for review by this Court, and we dismiss.
2

FACTUAL AND PROCEDURAL BACKGROUND

Father filed in circuit court a motion for abatement of child support, in which he sought 

relief from child support arrears totaling $38,236.06. In his pleadings, Father claimed, inter alia, 

that he was incarcerated when his child support arrearage accrued, he has been unable to obtain 

steady employment since his release from incarceration, he has been independently employed for 

the majority of time since his release, and he has no other sources of income. The Division 

moved to dismiss Father’s motion for failure to state a claim upon which relief could be granted. 

The court held a hearing on the parties’ competing motions and subsequently entered 

judgment granting Father partial relief, abating $25,000 of Father’s $38,236.06 arrearage. In its 

judgment, the court stated that it granted Father an abatement after “having considered 

arguments of counsel, making credibility and equitable considerations [sic] as well as 

considering all applicable statutes and case law.” The Division timely filed a motion to 

reconsider or a motion for new trial, which was denied after a hearing by operation of Rule 

78.06.

1

The Division now appeals.

2

STANDARD OF REVIEW

We review a trial court’s judgment on a motion for abatement of child support under the 

standard of review applicable to any other court-tried case. Peine v. Peine, 200 S.W.3d 567, 571 

(Mo. App. W.D. 2006). We will affirm the judgment of the trial court if it is supported by 

substantial evidence, it is not against the weight of the evidence, and it does not erroneously 

declare or apply the law. Id.

 

1 Ninety days passed, and the circuit court did not rule on Division’s motion for new trial. If a motion for 

new trial is not ruled on within ninety days of the motion’s filing, it is overruled by operation of Rule 78.06.

2 The cause is submitted to this court solely on Division’s brief. Although a respondent is not required to 

file a brief, the absence of a responsive brief leaves us without the benefit of respondent’s argument, if any, in 

support of the court’s judgment. Green v. Dir. of Revenue, 148 S.W.3d 892, 893 (Mo. App. S.D. 2004). 
3

DISCUSSION

In its sole point on appeal, the Division argues that the trial court erred by entering its 

judgment abating Father’s child support obligation, because Father “failed to plead or prove the 

elements of abatement . . . .” Specifically, the Division argues “the record contains no evidence 

that the custodial parent either voluntarily relinquished custody of the minor children to him or 

failed to provide court-ordered visitation or custody without good cause,” as is required by 

section 452.340, R.S.Mo. (2000), to justify abatement of child support.3 Because the Division’s 

argument challenges the sufficiency of evidence, of which there is no record, we cannot review 

this claim of trial error. We therefore dismiss the appeal.

The Division asserts that in the evidentiary hearing, Father failed to “prove” the statutory 

elements required for abatement. Consequently, “the record in this case lacks any evidence 

supporting the Circuit Court’s decision to grant Father’s request for abatement of his child 

support arrears.” The Division’s argument regarding insufficiency of the evidence requires this 

Court to review the record for evidence, if any, supporting Father’s claim for abatement. 

Therefore, a transcript of the evidentiary hearing is indispensable to our review. However, the 

Division did not file a transcript with the record on appeal.

The record on appeal must contain all of the record, proceedings, and evidence necessary 

for this Court to determine the questions presented for our decision. Rule 81.12(a); Section 

512.110, R.S.Mo. (2000); In re Marriage of Osborne, 895 S.W.2d 285, 288 (Mo. App. S.D. 

1995). Recitals in an appellant’s brief that are unsupported by the record on appeal are 

 

3

Section 452.340, subsections 2 and 7, expressly allow the abatement of child support “for such periods of 

time in excess of thirty consecutive days that the other parent has voluntarily relinquished physical custody of a 

child to the parent ordered to pay child support,” or if a court “finds that a parent has, without good cause, failed to 

provide visitation or physical and legal or physical or legal custody to the other parent pursuant to the terms . . .” of 

a court order. 
4

insufficient to supply this Court with the record of trial court proceedings necessary for our 

review. Yung v. Yung, 775 S.W.2d 343, 344 (Mo. App. E.D. 1989). 

Here, the Division concedes that the trial court held an evidentiary hearing on Father’s 

motion for abatement. The trial court’s order and final judgment both indicate that a hearing took 

place, and at this hearing, evidence was submitted prior to the court entering final judgment. The

record, however, is silent as to what, if any, evidence was offered during that hearing. Absent 

any transcript or other evidence of the hearing, the record is not preserved, and there is nothing 

for this Court to decide. See id.4

The Division argues that it was the trial court that failed to create a record of the 

proceedings. Unless there is a statutory mandate requiring that a hearing be held on the record, it 

is the appellant’s responsibility, not the court’s, to ensure that a transcript is made in order to 

preserve the record. See Butler v. Mo. Criminal Records Repository, 241 S.W.3d 429, 430 (Mo. 

App. E.D. 2007); Vogel v. Dir. of Revenue, 804 S.W.2d 432, 434 (Mo. App. S.D. 1991). “The 

responsibility to provide a meaningful transcript for review devolves upon appellant and the 

court of appeals cannot consider matters not preserved on the record and contained in an 

approved transcript.” Volvo Fin. N. Am., Inc. v. Raja, 754 S.W.2d 955, 957 (Mo. App. W.D. 

1988). 

At the request of either party, the proceedings at the trial level should be recorded, 

preserved and included in the transcript on appeal where necessary to present a 

claim of trial error. However, where there is no claim that such a request was 

made, reversal and remand for a new hearing is unwarranted. Such relief would 

offend the rule that a party cannot complain of error in which he joined or 

acquiesced at trial.

Osborne, 895 S.W.2d at 289.

 

4 Moreover, failure to provide this Court with a transcript results in the presumption that such evidence was 

favorable to the trial court’s ruling and unfavorable to the appellant. Saturn of Tiffany Springs v. McDaris, 331 

S.W.3d 704, 712 (Mo. App. W.D. 2011); Wilkerson v. Prelutsky, 943 S.W.2d 643, 649 (Mo. banc 1997). 
5

Here, the Division does not claim that a record of the trial court proceedings was required 

by statute, nor does it claim that it attempted to preserve the record by requesting that the 

proceedings be recorded. It was incumbent upon the Division, as the appellant, to ensure that the 

proceedings at the trial level were recorded, yet it failed to do so. Accordingly, the Division’s 

point has not been preserved for our review.

CONCLUSION

Appeal dismissed.

_________________________________

Lisa S. Van Amburg, Judge

Lawrence E. Mooney, P. J. and 

Clifford H. Ahrens, J. concur.