Selected Cases Relating to Appeals and Miscellaneous
Aspects
Requirement of findings of fact.
”It 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).” Russell v. Banfield, -- A.D.3d --, 784
N.Y.S.2d 446 (4th
Appellate review -- inadequate
findings of fact;
Appellate Division makes its own:
“Contrary 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
Appellate
review.
Mother’s efforts to estrange father warrants change of custody. Standard for review is great respect:
“Family 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
Appellate
review.
Court’s 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
(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
Appeals. Visitation; mootness. “Where 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
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 Dep’t
Orders directed to non-parties
(FCA §255): Party can be ordered to
undergo substance abuse rehab but nonparty County cannot be ordered to pay for
it:
“While 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 § 255; Matter of Nichole JJ. [Barbara KK.],
265 A.D.2d 29, 32 [3d Dep’t 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.” Remillard
v. Luck, 2 A.D.3d 1179, 1180-81 (3d
Last updated