Opinion
December 29, 1993
Appeal from the Erie County Family Court, Trost, J.H.O.
Present — Denman, P.J., Pine, Lawton, Doerr and Boehm, JJ.
Case held, decision reserved and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: In this paternity proceeding, the Judicial Hearing Officer failed to set forth the basis for his finding that petitioner did not meet her burden to prove respondent's paternity by clear and convincing evidence. Petitioner was physically separated, but not divorced, from her husband when the child was conceived. The evidence bearing on lack of access by petitioner's husband and the sharp conflict in the evidence submitted by petitioner and respondent presented questions of credibility for the trier of fact. Where questions of credibility are at issue, findings of fact are essential for meaningful appellate review (Matter of Joan S. v Ronald B., 71 A.D.2d 606). We, therefore, remit the matter to Family Court to make findings of fact.