Roma v. Bertoni

83 A.D.2d 736, 442 N.Y.S.2d 202, 1981 N.Y. App. Div. LEXIS 15050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 1981
• Status: Published

Opinion

Cross appeals from an order of the Family Court of Broome County (Whiting, Jr., J.), entered November 10,1980, which awarded the parties joint custody of their children and adjudged petitioner to be in contempt of court. Appeal by petitioner from order of the same court entered August 22, 1980. The order appealed from modified custody and visitation rights which had been established by a prior decree of Supreme Court divorcing the parties. That decree did not specifically refer applications relative to custody or visitation rights to the Family Court (Family Ct Act, § 467). Although it did incorporate, but did not merge, provisions of a separation agreement which, in turn, incorporated by. reference one of the many Family Court orders made in prior proceedings during this protracted litigation, such language in the decree cannot be deemed a referral of custodial matters to Family Court. The required specificity was clearly lacking (Matter of Jessey v Evans, 70 AD2d 673; Harrington v Harrington, 60 AD2d 982, 983). Accordingly, neither the modification nor the finding of contempt was authorized. Orders reversed, on the law, and petition dismissed, without costs and without prejudice to the commencement of appropriate proceedings in the Supreme Court should petitioner be so advised. Mahoney, P.J., Sweeney, Kane, Casey and Herlihy, JJ., concur.