August 7, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 "very comprehensive" and not unconscionable. The judge confirmed the consent order for plaintiff and children's relocation to Florida. This appeal followed.
On appeal, defendant seeks to invalidate the consent order on the bases that he signed it while under duress, threats, and coercion; that he was not represented by counsel; and that under Rule 4:50-1(f), if the agreement was upheld, the result would be unjust, oppressive, and inequitable. We find no merit in these contentions.
An appellate court's review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Family courts have special expertise on matters involving the welfare of children and "appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). The family court judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). These findings may not be disturbed unless they are so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, the trial court's legal conclusions are not entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"We commence our analysis by noting New Jersey's strong public policy in favor of the settlement of litigation." Gere v. Louis, 209 N.J. 486, 500 (2012); see also Continental Ins. Co. v. Honeywell Int'l Inc., 406 N.J.Super. 156, 195 n.31 (App. Div. 2009). "The settlement of litigation ranks high in our public policy." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (quoting Jannarone v. W.T. Co., 65 N.J.Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). "This policy rests on the recognition that parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone." Gere, supra, 209 N.J. at 500 (citations omitted) (internal quotation marks omitted).
We particularly note that "[a]dvancing that public policy [of fostering the settlement of disputed claims] is imperative in the family courts where matrimonial proceedings have increasingly overwhelmed the docket. . . . This practice preserves the right of competent, informed citizens to resolve their own disputes in whatever way may suit them." Ibid. (alteration in original) (citations omitted) (internal quotation marks omitted).
In this case, defendant claims that at the time he signed the consent agreement, he was under duress because plaintiff threatened to withhold the children from him and file restraining orders. The court rejected this claim and we concur. The record reflects that the parties had a combative and argumentative relationship. Defendant was just as likely as plaintiff to resort to filing restraining orders, and later dismissing them, to control the conduct of the other. In the weeks leading up to the signing of the agreement, there were numerous arguments and both parties had filed restraining orders against the other. Given the nature of their relationship, defendant cannot convincingly argue that he was threatened by plaintiff.
Regarding the agreement, we are satisfied that the trial judge fully considered the surrounding facts and assessed the credibility of the witness in reaching his conclusions. The record is clear that defendant was well aware of plaintiff's desire to relocate, that he had the proposed agreement for weeks, and he participated in modifying the language. Furthermore, defendant had ample time to consult an attorney to review this agreement, just as he had with the earlier agreement.
Upon our careful review of the record, we conclude that the trial court's finding that defendant's decision to sign the consent agreement was his own decision and was not made under duress, is amply supported by the record.
Defendant also argues that the consent order constitutes exceptional circumstances necessitating relief under Rule 4:50(f). Defendant argues that if the consent order is not set aside, the result would be "unjust, oppressive, and inequitable."
Rule 4:50(f) permits courts to vacate judgments for "any other reason justifying relief from the operation of the judgment or order." The rule affords relief only when "truly exceptional circumstances are present." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). Rule 4:50(f) "is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citations omitted) (internal quotation marks omitted).
This case presents no such exceptional circumstances. Defendant voluntarily consented to plaintiff's relocation of the children to Florida. As discussed previously, defendant did not face extraordinary pressure from plaintiff such that it provoked him to do what he otherwise would not have done. Similarly, defendant's failure to seek independent representation of counsel did not prevent him from voluntarily signing the consent agreement. The fact that defendant now believes that the terms of the agreement are unfavorable to him does not warrant invalidation of the consent order.
Moreover, a mother's desire to relocate her children after the parents' separation is by no means unusual. Courts routinely permit such long distance relocations of children. Such relocations are not oppressive to the non-custodial parent, as improvements in technology have revolutionized the ability of a parent to communicate with his children over long distances. Baures v. Lewis, supra, 167 N.J. at 105. Plaintiff and defendant in this case negotiated a comprehensive agreement that utilizes technology to provide defendant with numerous opportunities to visit and communicate with his children. As such, the consent order does not appear to be "unjust, oppressive, or inequitable."
For the above mentioned reasons, the trial judge's findings are affirmed.