McDermott v. McDermott

Nov 17, 1986
Versions:124 A.D.2d 715
508 N.Y.S.2d 467
1986 N.Y. App. Div. LEXIS 62020

The trial court failed to comply with its duty to "state the facts it deems essential” to its decision (CPLR 4213 [b]) and we decline to exercise our power to review the record to determine whether, despite the trial court’s failure to so comply, the court’s determination has a sound and substantial basis in the record. Effective appellate review, especially in proceedings involving child custody determinations, "requires that appropriate factual findings be made by the trial court — the court best able to measure the credibility of the witnesses” (Matter of Jose L. I., 46 NY2d 1024, 1026). The record here presents factual issues, including questions of credibility, and in light of the serious conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance (see, Giordano v Giordano, 93 AD2d 310). Furthermore, the court’s failure to conduct its in camera interview with the children on the record, particularly since it accorded the children’s preferences weight in its determination, makes intelligent review by this court impossible (see, CPLR 4019; Mosesku v Mosesku, 108 AD2d 795).

Accordingly, the appeal is held in abeyance, and the matter is remitted to the trial court for in camera interviews with the children on the record, and formulations of findings of fact essential to its decision. Mangano, J. P., Niehoff, Kooper and Spatt, JJ., concur.