Merrick v. Merrick

• Decision Date: 26 January 1995
• Citation: 163 Misc.2d 929,622 N.Y.S.2d 852
• Parties: Etan MERRICK, Plaintiff, v. David MERRICK, Defendant.
• Court: New York Supreme Court

Page 852

622 N.Y.S.2d 852

163 Misc.2d 929

Etan MERRICK, Plaintiff, v. David MERRICK, Defendant.

Supreme Court, New York County IAS Part 18.

Jan. 26, 1995.

Morrison Cohen Singer & Weinstein, New York City (Mara T. Thorpe, of counsel), for plaintiff.

Mudge Rose Guthrie Alexander & Ferdon, New York City (Paul G. Burns, James M Spears, and Regina Scinta, of counsel), for defendant.

DAVID B. SAXE, Justice.

In this action commenced by plaintiff-wife to recover counsel fees incurred in an adoption proceeding, defendant-husband moves for an order pursuant to CPLR § 3211(a)(5) dismissing the complaint upon the grounds that plaintiff has elected her remedy in a prior divorce action and is therefore barred from bringing this cause of action.

The issue here is whether plaintiff is entitled to reimbursement of legal fees incurred in an adoption proceeding as necessaries where she had been awarded pendente lite relief for herself and her adoptive children in a pending matrimonial action.

Plaintiff and defendant were married, for the second time, on August 30, 1983. Over the next few years, they made various attempts to adopt a child. In early 1988, the parties obtained Baby Boy C, an abandoned child, from a child care agency in the Philippines, and defendant executed a petition to the United States Department of Justice to classify the child as an immediate relative, in which defendant certified that he would "care for the beneficiary of this petition properly if the beneficiary is admitted to the United States."

During the same time frame that the parties were obtaining custody of Baby Boy C, the parties were advised of a pregnant woman in Philadelphia, Pennsylvania who wished to place her baby for adoption at birth. The woman gave birth to Baby Girl O in May 1988, the defendant paid for the woman's birth expenses, and one month later, plaintiff brought Baby Girl O back to New York City.

In November 1988, plaintiff and defendant executed joint petitions, agreements of adoption, and other requisite documents, for Baby Boy C and Baby Girl O in the Surrogate's Court, New York County. Each agreement of adoption stated: "The undersigned ... hereby agree to adopt the above-named adoptive child and to treat said child in all respects as their own lawful child and to extend and assure to said child all the rights, benefits and privileges incident to such relationship, and to incur and fulfill all the responsibilities of parent(s) with respect to said child."

Approximately one month later, the parties became estranged. During the ensuing months, the remaining statutory requirements of stage one of the adoptions of the two children were fulfilled, however, defendant failed to appear before the Surrogate in order to finalize the adoptions pursuant to Domestic Relations Law ("DRL") § 115(3).

On April 18, 1989, plaintiff retained her present counsel to represent her in connection with finalizing the adoptions of Baby Boy C and Baby Girl O. On May 30, 1989, plaintiff moved for an order dispensing with defendant's appearance in Surrogate's Court pursuant to what was then DRL § 115(8), and dispensing with the Court's examination of defendant, the adoptive father. Plaintiff further moved to confirm defendant's petitions and agreements for adoption and for an order granting the adoptions in the best interests of the children.

In response to the motion, defendant stated he was unwilling to adopt the children, and in October 1989, he commenced a divorce action against plaintiff in Supreme Court, New York County, which action is currently pending. In April 1990, defendant opposed plaintiff's motion for temporary support of Baby Boy C and Baby Girl O upon the ground that there was no basis for liability. By decision dated October 10, 1990, the Court denied any support for Baby Girl O, and awarded plaintiff, inter alia, interim counsel fees in the amount of $75,000 pursuant to DRL § 237 ("pendente lite order"). On Appeal to the Appellate Division, First Department, of the award of temporary support for Baby Boy C in the divorce action, defendant again argued that there was no basis for holding him liable for support of the child. The First Department affirmed the pendente lite order, with the modification that the support payments should be increased to account for Baby Girl O. Plaintiff's counsel moved twice more for counsel fees, and was awarded $75,000 each time by the court, for a total of $225,000.

At about the same time, in November 1990, defendant moved in the Surrogate's Court to revoke his agreements of adoption and discontinue the adoption proceedings in connection with himself.

After a trial, the Surrogate's Court dismissed the joint adoption petitions without prejudice to the right of plaintiff to commence an adoption proceeding in the future.

The court noted, among other things, that most likely prejudice would result to the children if defendant revoked his consents and agreements of adoption since under DRL § 110, in effect at the time, a married person could only adopt children independently of his or her spouse if she or he were living separate and apart from his or her spouse pursuant to a judgment of separation or a formally executed separation agreement. Since the parties had no separation agreement or judgment of separation, the children's permanent status as legal children of plaintiff was jeopardized (Matter of Baby Boy C., Matter of Baby Girl O, 153 Misc.2d 916, 922, 583 N.Y.S.2d 768).

However, the Surrogate's Court dismissed the adoption petitions on the ground that "adoption is solely a creature of statute * * * and there is no statute which enables this court to direct specific performance of an adoption agreement" (153 Misc.2d at p. 925, 583 N.Y.S.2d 768).

After appeal to the Appellate Division, First Department, on April 15, 1993, the Court affirmed the Surrogate's findings of fact, but unanimously reversed the order of the Surrogate's Court on the law and directed that the petitions for the adoptions jointly by defendant and plaintiff be granted. (Matter of Baby Boy C, and Baby Girl O, 189 A.D.2d 382, 596 N.Y.S.2d 56).

On defendant's appeal from the above decision, the Court of Appeals reversed the order of the Appellate Division and reinstated the order of the Surrogate's Court, although on different reasoning. The Court found that specific statutory authorization was not necessary before an adoption court could override an adoptive parent's revocation of consent and attempt to discontinue the adoption proceeding, especially where prejudice or injustice to another would result. It noted, however, that the court should exercise this power only in exceptional circumstances where the "child's interests would be severely and unavoidably prejudiced as a result of being deprived of status as the legal child of the adoptive parent" (Matter of Baby Boy C and Baby Girl O, 84 N.Y.2d 91, 100, 615 N.Y.S.2d 318, 638 N.E.2d 963).

The court concluded that this case did not meet the "exceptional circumstances" test (84 N.Y.2d, at 102, 615 N.Y.S.2d 318, 638 N.E.2d 963, supra) that would require the drastic measure of imposing a legal adoption of the children upon the defendant since the children's lack of permanent status and financial prejudice could be remedied by plaintiff's adoption of the children herself and by "(providing) for their economic security by imposing financial obligations upon (defendant)" (84 N.Y.2d, at 103, 615 N.Y.S.2d 318, 638 N.E.2d 963, supra) in the parties' pending divorce action or in a plenary action under the equitable doctrines of equitable estoppel and equitable adoption. The court notes that DRL § 110 was amended by L.1991, ch. 254, after the completion of the trial in the adoption proceedings, and now permits a married person who has been living separate and apart from his/her spouse for three years to adopt a child without a simultaneous...