Selected Cases Relating to Appeals and Miscellaneous Aspects


Requirement of findings of fact.

ĒIt is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following Memorandum: Respondent appeals from an order modifying the parties' existing custodial arrangement by awarding primary physical placement of the parties' son to petitioner, with visitation to respondent. Family Court failed to set forth "those facts upon which the rights and liabilities of the parties depend" (Matter of Jose L.I., 46 N.Y.2d 1024, 1025-1026, 389 N.E.2d 1059, 416 N.Y.S.2d 537; cf. Clarke v Clarke, 101 A.D.2d 911, 912, 475 N.Y.S.2d 172),   and "the absence of the required findings precludes proper appellate review" (Matter of Sents v Boysen, 210 A.D.2d 896, 896, 621 N.Y.S.2d 965). Because important credibility issues were raised at the hearing, we decline to exercise our power to review the record and make our own findings (see id. at 896-897; Giordano v Giordano, 93 A.D.2d 310, 312, 463 N.Y.S.2d 97; see generally Jose L.I.,46 N.Y.2d at 1026). We therefore hold the case, reserve decision and remit the matter to Family Court to set forth its factual findings (see Sents, 210 A.D.2d at 897).Ē†† Russell v. Banfield, -- A.D.3d --, 784 N.Y.S.2d 446 (4th
Depít 2004).



Appellate review -- inadequate findings of fact;Appellate Division makes its own:


ďContrary to petitioner's contention, we conclude that Family Court did not rely solely on the report of the psychologist and thus did not abdicate its duty to determine custody (see Matter of Aldrich v Aldrich, 263 A.D.2d 579; see also Salerno v Salerno, 273 A.D.2d 818, 819). Although we agree with petitioner that the court failed to set forth the factors essential to its decision, as it was required to do (see Matter of Miller v Miller, 220 A.D.2d 133, 136; Matter of Graci v Graci, 187 A.D.2d 970, 971; see generally Fox v Fox, 177 A.D.2d 209, 210), we conclude that the record supports the court's determination and is "sufficiently complete" for this Court to make factual findings "in the interests of judicial economy and the well-being of the children" (Matter of Ammann v Ammann, 209 A.D.2d 1032, 1033; cf. Miller, 220 A.D.2d at 137).Vezina v. Vezina, 8 A.D.3d 1047, 1048 (4th Depít 2004)



Appellate review.Motherís efforts to estrange father warrants change of custody.Standard for review is great respect:


ďFamily Court's determination in a custody matter must be accorded great respect unless it lacks a sound and substantial basis in the record (see Matter of Gago v. Acevedo, 214 A.D.2d 565 [2d Depít 1995], lv.denied 86 N.Y.2d 706 [1995]). Here, the record supports the determination of the court, which was uniquely well-situated to evaluate the credibility of the witnesses (see Matter of Brittni K., 297 A.D.2d 236, 237-238 [1st Depít 2002]), that the best interests of the children would be served by an award of custody to the father (see Walden v. Walden, 112 A.D.2d 1035 [2d Depít 1985]).ĒMatter of Mendez, 1 A.D.3d 265, 265 (1st Depít 2003)



Appellate review.Courtís denial of adjournment to appellant where attorney was injured was an improvident exercise of discretion.Appeal maintained notwithstanding rule against appeal from order entered on default, because adjournment was contested and fundamental right (to counsel) was involved.Vidal v.Mintzer, 309 A.D.2d 756 (2d Depít 2003)



(Appeals).Fugitive disentitlement doctrine.†† The fugitive disentitlement doctrine permits a court to dismiss an appeal if the party seeking relief is a fugitive while the matter is provided that there is a nexus between the appellant's fugitive status and the appellate proceedings.Joshua M. v. Dimari N., 9 A.D.3d 617 (3d Depít 2004)


Appeals.Visitation;mootness.ďWhere a party commences new proceedings and specifically agrees to a new visitation schedule, appeals of prior orders on the same issues are rendered moot [citations omitted]. The denial of jailhouse visitation is also moot as the father apparently is no longer incarcerated.Matter of Rebecca O. v. Todd P., 309 A.D.2d 982, 983 (3d Depít 2003)



Requirement of findings.Custody to grandparent.Appellate Division makes the extraordinary circumstances finding which Family Court failed to make.Amanda B. v. Anthony B., -- A.D.3d -- (4th Depít Dec. 30, 2004).



Orders directed to non-parties (FCA ß255):†† Party can be ordered to undergo substance abuse rehab but nonparty County cannot be ordered to pay for it:



ďWhile Family Court has broad powers to direct municipalities, public agencies and officials to render assistance in providing services to children and families (see Family Ct Act ß 255; Matter of Nichole JJ. [Barbara KK.], 265 A.D.2d 29, 32 [3d Depít 2000], lv denied 95 N.Y.2d 757 [2000]), we find merit in the County's argument that Family Court's payment order cannot be sustained because it was made against a nonparty (see CPLR 1001, 1003; Matter of Juliana C., 309 A.D.2d 1170, ___, 309 A.D.2d 1170, [2003; Hartloff v Hartloff, 296 A.D.2d 849, 849-850 [2002]; Matter of Support Collection Unit of Rensselaer County Dept. of Social Servs., 98 A.D.2d 904, 905 [1983]). The County should have been put on notice and permitted to intervene or otherwise been made a party to the proceeding -- and afforded an opportunity to be heard -- before such a payment order was made. [footnote omitted].Accordingly,   that part of the order directing the County to pay for the mother's substance abuse treatment should be vacated and the matter remitted to Family [1180/81] Court to give the County an opportunity to challenge the appropriateness of such an order in this proceeding.ĒRemillard v. Luck, 2 A.D.3d 1179, 1180-81 (3d Depít 2003)



Last updated January 8, 2005

Return to Table of Contents