| Matter of Jonathan EE. (Barreiro\MAlan EE.) |
| 2011 NY Slip Op 05844 [86 AD3d 696] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Guardianship of Jonathan EE., aDevelopmentally Disabled Person. Alyssa M. Barreiro et al., as Coguardians of Jonathan EE.,Respondents-Appellants; Alan EE. et al., Respondent, et al., Respondent. (Proceeding No. 1.) Inthe Matter of the Jonathan EE. Trust Number One. Alyssa M. Barreiro et al., as Coguardians ofJonathan EE., Respondents-Appellants; Barry EE., as Trustee for the Jonathan EE. Trust NumberOne, Appellant-Respondent. (Proceeding Number 2.) (And Another RelatedProceeding.) |
—[*1] Levene, Gouldin & Thompson, Binghamton (Daniel R. Norton of counsel), for Alyssa M.Barreiro and another, respondents-appellants. Douglas Walter Drazen, Binghamton, for Allen EE., respondent. Sheila E. Shea, Mental Hygiene Legal Service, Albany (April J. Smith of counsel), forJonathan EE., respondent.
Egan Jr., J. Cross appeals from an order of the Surrogate's Court of Broome County(Peckham, S.), entered August 27, 2010, which granted petitioners' applications, in twoproceedings pursuant to SCPA article 17-A, for guardianship compensation.
The underlying facts are more fully set forth in a prior decision of Surrogate's Court(Matter of Jon Z., 24 Misc 3d 1240[A], 2009 NY Slip Op 51821[U] [2009]). Briefly,Jonathan EE. (born in 1987), who is autistic, is the son of Caren FF. (hereinafter the mother) andAlan EE. (hereinafter the father). Following their divorce in 2002, the mother and the father weregranted joint legal custody of Jonathan and his sister and also were appointed as Jonathan'scoguardians. Difficulties thereafter arose and, in July 2009, Surrogate's Court, among otherthings, terminated the parents' coguardianship and appointed petitioners, pursuant to SCPAarticle 17-A,[FN1] to serve as [*2]Jonathan's coguardians for one year or untilfurther order of the court.
In October 2009, petitioners commenced proceeding No. 1 seeking guardianship fees throughAugust 31, 2009 and requesting that such fees be paid either by the parents or from the assets ofthe supplemental needs trust established for Jonathan's benefit (see EPTL7-1.12).[FN2]Petitioners thereafter submitted updated time records and, following various appearances inSurrogate's Court and the commencement of a separate proceeding by the mother, Surrogate'sCourt awarded petitioners fees and disbursements totaling $41,872 and directed that such moneysbe paid entirely from the trust.[FN3]Barry EE., Jonathan's uncle and a trustee of the supplemental needs trust, thereafterappealed,[FN4] and petitioners cross-appealed from so much of the underlying order as held that the mother andthe father were not liable for payment of the guardianship fees.[FN5]
Although the parties debate both the reasonableness of the fees awarded and the appropriatesource for the payment thereof, these issues need not detain us, as our review of the relevantstatutory scheme fails to disclose any authority for the award of such fees to petitioners in thefirst instance. Accordingly, the order of Surrogate's Court is reversed, and petitioners'applications for guardianship fees are dismissed.
The Legislature has expressly provided for an award of "reasonable compensation" when anindividual has been appointed either as a guardian ad litem pursuant to SCPA article 4 or as aguardian of an incapacitated person pursuant to Mental Hygiene Law article 81 (seeSCPA 405 [1]; Mental Hygiene Law § 81.28 [a]). No corresponding provision, however,appears in SCPA article 17-A—the statutory provision under which petitioners wereappointed [*3]here.
In this regard, "[i]t is a general rule of statutory construction that . . . whenenacting a statute the Legislature is presumed to act with deliberation and with knowledge of theexisting statutes on the same subject" (McKinney's Cons Laws of NY, Book 1, Statutes §222, Comment, at 384; see People v Keyes, 141 AD2d 227, 230 [1988], affd 75NY2d 343 [1990]; Purcell v Regan, 126 AD2d 849, 852 [1987], lv denied 69NY2d 613 [1987]). Thus, in adopting Mental Hygiene Law article 81 and SCPA articles 4 and17-A, we must assume that the Legislature's failure to provide for the compensation of guardiansappointed under SCPA article 17-A was not a mere oversight but, rather, represented a reasonedand intentional decision. To the extent that Surrogate's Court found that authority for the paymentof guardianship fees under SCPA article 17-A may be derived or implied from other statutorysources (citing SCPA 2307 and EPTL 7-1.12), we need note only that "[a] court cannot byimplication supply in a statute a provision which is reasonable to suppose the Legislatureintended intentionally to omit" (McKinney's Cons Laws of NY, Book 1, Statutes § 74; see Matter of Doe v City ofSchenectady, 84 AD3d 1455, 1458 [2011]; Matter of Lewandowski v New York State & Local Police & FireRetirement Sys., 69 AD3d 1027, 1028-1029 [2010]). Hence, Surrogate's Court waswithout authority to grant petitioners' fee applications, and any remedy in this regard lies with theLegislature—not this Court. Having so concluded, petitioners' cross appeal concerning theparents' liability for such fees is academic.
Mercure, J.P., Spain and Kavanagh, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and petitions dismissed.
Footnote 1: The original SCPA article 17-A(L 1969, ch 1143, § 1) permitted the appointment of a guardian only for an individualwhose diagnosis was mental retardation and, hence, did not encompass individuals who weredevelopmentally disabled but not mentally retarded. To address that deficiency, SCPA formerarticle 17-A was repealed in 1989 and replaced with the current version (L 1989, ch 675, §4; see Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPAart 17-A, at 104), which, insofar as is relevant to these proceedings, permits Surrogate's Court toappoint a guardian for an individual whose disability is attributable to autism (see SCPA1750-a [1] [a]).
Footnote 2: Petitioners also commenced aseparate proceeding against the supplemental needs trust (proceeding No. 2) seeking the samerelief.
Footnote 3: In the interim, Surrogate's Courtgranted petitioners' request to resign and appointed the Commissioner of Social Services as atemporary guardian for Jonathan.
Footnote 4: To the extent that Barry EE.'snotice of appeal misstates the date of entry, we will exercise our discretion and treat the notice ofappeal as valid (see CPLR 5520 [c]; Matter of Randi NN. [Randi MM.—Joseph MM.], 80 AD3d1086, 1086 n [2011], lv denied 16 NY3d 712 [2011]).
Footnote 5: Surrogate's Court granted BarryEE.'s subsequent application for a stay pending appeal.