Berlin v. Berlin

60 A.D.2d 861, 401 N.Y.S.2d 251, 1978 N.Y. App. Div. LEXIS 9893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1978
• Status: Published

Opinion

In a matrimonial action, the plaintiff wife appeals from so much of a judgment of divorce of the Supreme Court, Suffolk County, entered October 3, 1977, as, after a nonjury trial, denied her application "to punish the defendant for contempt of court for arrears of temporary alimony”, abated said arrears and awarded custody of the infant issue of the marriage to the defendant. Action remitted to the Special Term for a further hearing in accordance herewith and for the making of findings of fact and conclusions of law with respect to the issue of custody, and appeal held in abeyance in the interim. We agree with Special Term’s determination not to punish Ine defendant for contempt and to abate the arrears. However, with respect to the question of custody, the court failed to comply with the duty imposed upon it by statute to "state the facts it deems essential” to its decision (see CPLR 4213, subd [b]). This failure on the part of the court has made intelligent judicial review of its decision impossible (see Alleyne v Alleyne, 46 AD2d 785; Harris v Harris, 60 AD2d 644). Upon the oral argument of this appeal, counsel for the defendant husband stated that the plaintiff wife had left the jurisdiction with the parties’ child, of whom she had temporary custody. We therefore direct Special Term to reopen the hearing to explore this development, and to make appropriate findings in connection therewith. Mollen, P. J., Suozzi, Shapiro and Hawkins, JJ., concur.