ELIZABETH D. BRISENO, Plaintiff-Respondent,
ROBERT C. BURTON, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0065-11.
Robert W. Mayer, attorney for appellant.
Respondent has not filed a brief.
Before Judges Sabatino and Maven.
In this unopposed appeal, defendant Robert C. Burton, Jr. appeals the Family Part order dated November 15, 2012 that confirmed a consent order that permitted plaintiff Elizabeth D. Briseno to relocate to Florida with the parties' children. We affirm.
The relevant facts adduced at the plenary hearing follow. The unmarried couple had known each other for approximately six years and together have two minor children. Beginning in October 2010, plaintiff and defendant discussed the possibility of plaintiff relocating with their two children. By October 2011, plaintiff presented defendant with a consent agreement, which would permit her to relocate to California with the children. Defendant discussed the proposed consent agreement with his attorney and decided not to sign it because he did not agree with the proposed child support provisions. In April 2012, plaintiff presented defendant with another proposed consent agreement permitting her to relocate to Coral Springs, Florida with the children. The parties argued repeatedly over his refusal to sign that agreement.
On June 8, 2012, plaintiff presented defendant with yet another proposed consent agreement permitting her to relocate to Coral Springs, Florida with the children. During the month of June, defendant, through text messages and direct conversation, requested changes to the agreement to add, among other things, provisions for parenting time. Defendant indicated that he would discuss the agreement with his attorney. There were several times throughout the month of June when defendant was supposed to get the consent agreement notarized but failed to do so.
On June 28, 2012, defendant was granted a Temporary Restraining Order (TRO) against plaintiff upon his allegations of harassment and kidnapping - based on her intent to move with the children. The next day, June 29, plaintiff went to the courthouse in an attempt to appeal defendant's restraining order and affirmatively file her own restraining order against defendant. While completing her paperwork for the appeal, and unbeknownst to plaintiff, defendant appeared at the courthouse to withdraw his restraining order against her. Through a court intermediary, the parties agreed that defendant would dismiss his restraining order and sign the consent agreement on the condition that plaintiff not file a restraining order against him. Defendant left the courthouse to have the consent agreement signed and notarized. He returned to the courthouse and gave plaintiff a copy of the signature page.
On July 2, 2012, plaintiff and her attorney signed the consent agreement, but on July 3, defendant advised plaintiff's attorney that he wished to rescind the consent agreement he signed claiming that he was under duress and coerced into signing the agreement. Defendant filed an order to show cause to seek a court order voiding the consent agreement and to stay plaintiff's move to Florida.
On November 15, 2012, the Honorable Sohail Mohammed, J.S.C., presided over a plenary hearing on the parties' respective applications to void or confirm enforcement of the consent order, or alternatively to consider plaintiff's request for removal to Florida. Baures v. Lewis, 167 N.J. 91, 105 (2001).
The judge found that plaintiff and defendant had engaged in ongoing discussions and negotiations regarding the issue of plaintiff relocating with the children. The judge also determined that defendant was aware of plaintiff's intentions and had ample opportunity to talk with his lawyer regarding the consent agreement. In light of the testimony offered by plaintiff and defendant at the hearing, the judge found that there was no fraud, coercion, or duress in defendant's signing of the consent agreement that would warrant voiding the agreement. Additionally, after reading over the agreement himself, the judge found the agreement to be ...