In the Matter of The Guardianship of Jonathan Ee.

• Decision Date: 07 July 2011
• Citation: 927 N.Y.S.2d 171,2011 N.Y. Slip Op. 05844,86 A.D.3d 696
• Parties: In the Matter of the GUARDIANSHIP OF JONATHAN EE., a Developmentally 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.)In the Matter of the Jonathan EE. Trust Number One.Alyssa M. Barreiro et al., as Coguardians of Jonathan EE., Respondents–Appellants;Barry EE., as Trustee for the Jonathan EE. Trust Number One, Appellant–Respondent. (Proceeding Number 2.)(And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 696

927 N.Y.S.2d 171

2011 N.Y. Slip Op. 05844

In the Matter of the GUARDIANSHIP OF JONATHAN EE., a Developmentally 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.)In the Matter of the Jonathan EE. Trust Number One.Alyssa M. Barreiro et al., as Coguardians of Jonathan EE., Respondents–Appellants;Barry EE., as Trustee for the Jonathan EE. Trust Number One, Appellant–Respondent. (Proceeding Number 2.)(And Another Related Proceeding.)

Supreme Court, Appellate Division, Third Department, New York.

July 7, 2011.

Cynthia Feathers, Saratoga Springs, for Barry EE., appellant-respondent.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), for Jonathan EE., respondent.Before: MERCURE, J.P., SPAIN, KAVANAGH and EGAN JR., JJ.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 two proceedings 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 N.Y. Slip Op. 51821[U], 2009 WL 2601373 [2009] ). Briefly, Jonathan EE. (born in 1987), who is autistic, is the son of Caren FF. (hereinafter the mother) and Alan EE. (hereinafter the father). Following their divorce in 2002, the mother and the father were granted joint legal custody of Jonathan and his sister and also were appointed as Jonathan's coguardians. Difficulties thereafter arose and, in July 2009, Surrogate's Court, among other things, terminated the parents' coguardianship and appointed petitioners, pursuant to SCPA article 17–A,¹ to serve as Jonathan's coguardians for one year or until further order of the court.

In October 2009, petitioners commenced proceeding No. 1 seeking guardianship fees through August 31, 2009 and requesting that such fees be paid either by the parents or from the assets of the supplemental needs trust established for Jonathan's benefit ( see EPTL 7–1.12).² Petitioners thereafter submitted updated time records and, following various appearances in Surrogate's Court and the commencement of a separate proceeding by the mother, Surrogate's Court awarded petitioners fees and disbursements totaling $41,872 and directed that such moneys be paid entirely from the trust.³ Barry EE., Jonathan's uncle and a trustee of the supplemental needs trust, thereafter appealed,⁴ and petitioners cross-appealed from so much of the underlying order as held that the mother and the father were not liable for payment of the guardianship fees.⁵

Although the parties debate both the reasonableness of the fees awarded and the appropriate source for the payment thereof, these issues need not detain us, as our review of the relevant statutory scheme fails to disclose any authority for the award of such fees to petitioners in the first 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 an individual has been appointed either as a guardian ad litem pursuant to SCPA article 4 or as a guardian of an incapacitated person pursuant to Mental Hygiene Law article 81 ( see SCPA 405[1]; Mental Hygiene Law § 81.28[a] ). No corresponding provision, however, appears in SCPA article 17–A—the statutory provision under which petitioners were appointed here.

In this regard, “[i]t is a general rule of statutory construction that ... when enacting a statute the Legislature is presumed to act with deliberation and with knowledge of the existing statutes on the same subject” (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 222, at 384; see People v. Keyes, 141 A.D.2d 227, 230, 535 N.Y.S.2d 162 [1988], affd. 75 N.Y.2d 343, 553 N.Y.S.2d 81, 552 N.E.2d 617 [1990]; Purcell v. Regan, 126 A.D.2d 849, 852, 510 N.Y.S.2d 772 [1987], lv. denied 69 N.Y.2d 613, 517 N.Y.S.2d 1029, 511 N.E.2d 88 [1987] ). Thus, in adopting Mental Hygiene Law article 81 and SCPA articles 4 and 17–A, we must assume that the Legislature's failure to provide for the compensation of guardians appointed under SCPA article 17–A was not a mere oversight but, rather, represented a reasoned and intentional decision. To the extent that Surrogate's Court found that authority for the payment of guardianship fees under SCPA article 17–A may be derived or implied from other statutory sources (citing SCPA 2307 and EPTL 7–1.12), we need note only that “[a] court cannot by implication supply in a statute a provision which is reasonable to suppose the Legislature intended intentionally to omit” (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 74; see Matter of Doe v. City of Schenectady, 84 A.D.3d 1455, 1457–1459, 923 N.Y.S.2d 241 [2011]; Matter of Lewandowski v. New York State & Local Police & Fire Retirement Sys., 69 A.D.3d 1027, 1028–1029, 893 N.Y.S.2d 325 [2010] ). Hence, Surrogate's Court was without authority...