Kuenen v. Kuenen

122 A.D.2d 616, 504 N.Y.S.2d 937, 1986 N.Y. App. Div. LEXIS 59900

Opinion

— Order unanimously reversed, on the law, without costs, and petition dismissed. Memorandum: The record does not support Family Court’s imposition of a five-day jail term for contempt based upon a willful violation of an order of protection, where the gravamen of the charge is that respondent removed items of personal property from the marital residence. Contempt should not be granted unless the order violated is clear and explicit and unless the act complained of is clearly proscribed (Pereira v Pereira, 35 NY2d 301, 308; Suchomski v Suchomski, 73 AD2d 1038). It is uncontroverted that respondent sought and obtained from Family Court permission to enter the marital residence to remove his clothing and personal belongings. Although this directive was ambiguous, and was seized upon by respondent to remove items of furniture as being within the ambit of "personal belongings”, thus precipitating Family Court’s memorandum amending the order of protection, his conduct does not rise to the level of a willful violation of a court order. Division of the personal property of the parties is a matter to be resolved in the divorce action. (Appeal from order of Ontario County Family Court, Reed, J. — violation of order of protection.) Present— Dillon, P. J., Callahan, Denman, Green and Pine, JJ.