Opinion
June 30, 1952.
In an action in which a judgment of divorce was granted in favor of plaintiff on the 28th day of May, 1946, defendant appeals from an order (1) denying his motion to punish plaintiff for contempt of court for her failure to comply with the provisions of said judgment pertaining to custody of the children of the parties and (2) referring the matter to an official referee to hear and determine, as an application for modification of said custody provisions. Order modified by striking from the second ordering paragraph thereof the word "determine" and by substituting in place thereof the word "report". As so modified, the order is affirmed, without costs. The burden of determination should, in this case at least, remain with the Special Term. Carswell, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur.