Law Lessons from Y.A.B. VS. A.C.B., App. Div., A-2158-11T2, November 28, 2012:
A plenary hearing is not required in every contested matrimonial proceeding. See Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). On the contrary, a trial judge may “hear and decide motions or orders to show cause exclusively upon affidavits.” Id. at 440 (citing R. 1:6-1; R. 1:6-6; R. 4:67-5; Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded on other grounds by statute, N.J.S.A. 2A:17-56.23a)). A hearing on parenting time issues is only required “when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (In order to obtain a hearing, “a party must clearly demonstrate the existence of a genuine issue as to a material fact.”).
“[W]here the need for a plenary hearing is not . . . obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary.” Hand, supra, 391 N.J. Super. at 106. This rule was crafted with an eye to judicial economy, given that “practically every dispute in the matrimonial motion practice involves a factual dispute of some nature.” Klipstein v. Zalewski, 230 N.J. Super. 567, 576 (Ch. Div. 1988). “An inflexible rule requiring a plenary hearing” on every matrimonial application “would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.” Shaw, supra, 138 N.J. Super. at 440.
Thus, in seeking to restrict or suspend defendant’s parenting time, the “threshold issue is whether [plaintiff] has made a prima facie showing that a plenary hearing is necessary.” Hand, supra, 391 N.J. Super. at 106.
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