Russell v. Banfield

Appellate Division of the Supreme Court of New York

Russell v. Banfield

12 A.D.3d 1081, 784 N.Y.S.2d 446, 2004 N.Y. App. Div. LEXIS 13858

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 2004

StatusPublished

Cited by3 cases

This text of 12 A.D.3d 1081 (Russell v. Banfield) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Russell v. Banfield, 12 A.D.3d 1081, 784 N.Y.S.2d 446, 2004 N.Y. App. Div. LEXIS 13858 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Family Court, Steuben County (Peter C. Bradstreet, J.), entered October 30, 2003. The order awarded primary physical placement of the parties’ child to petitioner, with visitation to respondent.

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 NY2d 1024, 1025-1026 [1979]; cf. Clarke v Clarke, 101 AD2d 911, 912 [1984]), and “[t]he absence of the required findings precludes proper appellate review” (Matter of Sents v Boysen, 210 AD2d 896, 896 [1994]). Because important credibility issues were raised at the hearing, we decline to exercise our power to review the record and make our own find[1082]*1082ings (see id. at 896-897; Giordano v Giordano, 93 AD2d 310, 312 [1983]; see generally Jose L.I., 46 NY2d 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 AD2d at 897). Present—Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.

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Appeal from an order of the Family Court, Steuben County (Peter C. Bradstreet, J.), entered October 30, 2003. The order awarded primary physical placement of the parties’ child to petitioner, with visitation to respondent.

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 NY2d 1024, 1025-1026 [1979]; cf. Clarke v Clarke, 101 AD2d 911, 912 [1984]), and “[t]he absence of the required findings precludes proper appellate review” (Matter of Sents v Boysen, 210 AD2d 896, 896 [1994]). Because important credibility issues were raised at the hearing, we decline to exercise our power to review the record and make our own find[1082]*1082ings (see id. at 896-897; Giordano v Giordano, 93 AD2d 310, 312 [1983]; see generally Jose L.I., 46 NY2d 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 AD2d at 897). Present—Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.

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Bluebook (online)

12 A.D.3d 1081, 784 N.Y.S.2d 446, 2004 N.Y. App. Div. LEXIS 13858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-banfield-nyappdiv-2004.

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