SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 4, 1969
THE PEOPLE OF THE STATE OF NEW YORK EX REL. BARBARA M. PORTER, RESPONDENT,
ROY A. PORTER, JR., APPELLANT
Appeal from order of Genesee County Family Court in contempt proceeding.
Goldman, P. J., Witmer, Moule, Bastow and Henry, JJ.
Memorandum: A person may not be placed in civil contempt for violation of a court order unless it is reasonably certain that his act constituted a violation thereof (Matter of Carlson v. Podeyn, 12 A.D.2d 810; 9 N Y Jur, Contempt, § 19; see 22 Carmody-Wait, 2d, New York Practice § 140:2). The facts adduced upon the hearing in this contempt proceeding do not show that defendant asserted custody of the daughter named in the order of January 2, 1969 in derogation of that order nor that he prevented plaintiff from continuing custody of her and taking her home. At most it appears that he gave moral support to the desires of his two daughters to remain at his home for a few days to attend a field day. This affords no basis for holding defendant in civil contempt for violation of the terms of said order granting temporary custody of the daughter to the plaintiff mother.
Order unanimously reversed and proceeding to hold defendant in civil contempt dismissed, without costs.
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