Attempt to Deceive Surrogate Is Alleged : Custody: Attorney says she refused to help ex-client dupe woman into surrendering her baby.

In explosive testimony Wednesday, Robert Moschetta’s former attorney told a courtroom that Moschetta had tried to trick the surrogate mother who bore his child into surrendering all rights to her baby.

The attorney, Catherine M. Adams, testified that she has refused to help Moschetta because she believed his attempts to obtain sole custody of his daughter were “unethical” and could have been considered “extortion.”

Moschetta, however, testified that surrogate Elvira Jordan knew exactly what she was signing when she relinquished all parental rights to her daughter and agreed to give up the baby in exchange for $5,000.

Wednesday was the third day of a legally and emotionally complex trial in which three would-be parents--the father, his estranged wife and the surrogate--are all seeking custody of a 10-month-old girl.

On Monday, Orange County Superior Court Judge Nancy Wieben Stock ruled that the wife, Cynthia Moschetta, had no legal right to the child she had helped raise for six months. That ruling narrowed the case to a battle between the baby’s biological parents, Robert Moschetta and surrogate Jordan, 42.

The judge will first rule on whether Jordan is the child’s legal mother. Hearings then will be held on custody and visitation, which the judge has said could include stepparent visitation rights for Cynthia Moschetta.

Outside the courtroom Wednesday, Cynthia Moschetta said that after hearing two days of testimony, she felt that she had been “duped and lied to” by her husband.

As recently as last month, Cynthia Moschetta, 51, had said that she hoped to reconcile with her 35-year-old husband. On Wednesday, she said she had not been aware of a number of facts until she heard the testimony from Robert Moschetta and from Adams.

“I feel like besides being duped, I’ve been used for 11 years of his life,” she said.

She said she now believed her husband had engaged in “a ruse” to maintain the marriage solely for the purpose of persuading Jordan to give up the child.

Jordan has testified that she wanted her child raised by a loving couple and that she refused to allow the Moschettas to take the newborn baby from the hospital to their Santa Ana home when she learned the couple were divorcing.

Cynthia Moschetta also said she was deeply upset by losing all rights to the baby she had raised for six months as her own.

“Nobody knows how it is to go into a little girl’s room that’s empty and cry your eyes out,” she said.

Neither Robert Moschetta nor his attorney, Edie W. Warren, could be reached for comment Wednesday evening on Cynthia Moschetta’s allegations.

On the witness stand, however, Robert Moschetta testified that Cynthia Moschetta repeatedly has threatened to drag the surrogate into a custody fight and “make your life hell” if he left her.

Harold F. La Flamme, the court-appointed attorney for the baby, has been interviewing friends and relatives of all three would-be parents, to make a recommendation on custody to the court. La Flamme said he has not yet decided who should raise the child.

Robert Moschetta told his wife on April 15, 1990, that he was considering divorce, when Jordan was six months pregnant with his child. But Jordan did not learn of the marital problems until the day before she gave birth to the baby, whom she calls Melissa and the Moschettas call Marissa.

Jordan has testified that she allowed the Moschettas to take the baby home from the hospital only after they agreed to several conditions: They would undergo marriage counseling for a year; Jordan would not release the child for adoption during that period, and Jordan would still be paid the remaining $5,000 of her promised $10,000 surrogacy fee.

Four months later, Jordan signed a relinquishment of parental rights which Robert Moschetta gave her. She has testified that had she known what the document said, she would never have signed it.

Much of the court testimony has focused on whether Jordan, who has a seventh-grade education and was never represented by a lawyer, was tricked into giving up her child or willingly signed her baby away for money.

During cross-examination Wednesday, Jordan’s attorney, Jeri R. McKeand, sought to show that Robert Moschetta had decided to divorce his wife and went through the motions of a reconciliation only because he knew it was the only way that Jordan would give him his daughter.

In a tearful voice, Robert Moschetta said he was highly distraught that Jordan would not allow him to see his newborn daughter and would do “whatever it took” to be able to hold her in his arms.

“Isn’t it true that one of the major factors that led you to (reconcile with your wife) was so you would get your child out of the hospital?” McKeand asked.

“No,” Robert Moschetta replied.

McKeand then produced a sworn pretrial deposition in which Moschetta had twice answered “yes” to the same questions.

Moschetta also testified that he did not know that it was important to Jordan to have her child raised by an intact couple, that he told Jordan that he would not agree to her conditions and that he did not know whether Jordan trusted him.

Each time, McKeand produced and read aloud to the court sworn statements by Robert Moschetta that contradicted his statements on the witness stand.

“Mr. Moschetta was under oath both times. . . ,” McKeand said. “He was lying one time or the other.”

Adams testified that she had represented both Cynthia and Robert Moschetta and had drawn up the original surrogacy contract on their behalf. She later helped negotiate with Jordan to allow the Moschettas to take the baby home.

Although Jordan had said she would not consent to an adoption for one year, Robert Moschetta called attorney Adams in August, 1990, and asked her to draft a relinquishment for Jordan to sign, Adams testified. She said she refused.

“I told him I felt that it was unethical for me to do that,” she said. Adams said she also informed him that she thought such a relinquishment would be legally unenforceable.

“He said he didn’t care. . . ,” Adams said. “He said go ahead and do it anyway, as long as she (Jordan) thinks it’s enforceable.”

McKeand then asked Adams whether she believed Robert Moschetta was “trying to put something over” on Jordan.

“Yes, I did,” Adams said.

Adams also testified that since California law prohibits the selling of babies, it would be “extortion” to tell a surrogate that she would have to relinquish rights to her baby in order to be paid, and that she had informed Robert of this fact.

The trial resumes today in Orange County Superior Court.