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Barrie v. Barrie

Decided: November 10, 1977.

NANCY BARRIE, PLAINTIFF-APPELLANT,
v.
RICHARD BARRIE, DEFENDANT-RESPONDENT



Allcorn, Morgan and Horn.

Per Curiam

[154 NJSuper Page 302] Plaintiff appeals the denial of her motion to rescind a matrimonial property settlement agreement and

to vacate that portion of a final judgment of divorce in which the negotiated property settlement agreement was incorporated by reference or, in the alternative, to grant a plenary hearing to determine whether the portion of the judgment mentioned above and the property settlement agreement should be rescinded.

The trial judge, after hearing oral argument and considering the affidavits and certifications filed by each party, concluded that plaintiff had failed to establish a prima facie case for relief on the basis of the affidavits and certifications presented by both parties. Consequently he denied the motion in its entirety.

The motion was brought pursuant to R. 4:50-1(f), which provides:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (f) any other reason justifying relief from the operation of the judgment or order.

Before proceeding to the merits of the issues raised in this appeal, we observe that a plenary hearing is not mandated ipso facto by a motion. In Shaw v. Shaw , 138 N.J. Super. 436, 440 (App. Div. 1976), we held that where the affidavits do not show the existence of a genuine issue of material fact the trial judge need not take oral testimony and may decide the motion without a plenary hearing. In Skillman v. Skillman , 136 N.J. Super. 348, 350 (App. Div. 1975), we referred to the need for a "sufficient prima facie case" to entitle a moving party to a plenary hearing. See also Hallberg v. Hallberg , 113 N.J. Super. 205, 208 (App. Div. 1971).

There is, of course, no doubt that plaintiff was not entitled to either a reopening of the judgment or to a rescission of the settlement agreement merely by virtue of her affidavit and certifications. The fundamental issue before us is whether she was entitled to an evidentiary hearing on the basis of the record made below. The answer to this

question in the light of the holdings of Shaw, Skillman and Hallberg, supra , depends upon whether that record indicates that there was a reasonable probability that plaintiff might be entitled to the relief sought.

In the words of Court Invest. Co. v. Perillo , 48 N.J. 334 (1966):

Such a motion under (f) is addressed to the discretion of the trial court. That discretion is a broad one to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the absence of an abuse of its discretion. No categorization can be made of the situations which would warrant redress under subsection (f). As Justice Proctor noted in Hodgson v. Applegate , 31 N.J. 29, 41 (1959), the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice. [at 341]

The parties separated in 1973, after ten years of a marriage which produced two daughters. In 1975 the children were six and four years of age. On January 19, 1974 plaintiff engaged the attorney who represented her until after the divorce proceedings were completed. That attorney filed the action for divorce in October 1974. There is no dispute that the challenged agreement was the product of negotiations for a considerable interval before it was executed on June 4, 1975 and its subsequent revisions on June 17, July 2 and July 16, 1975. On August 7, 1975 plaintiff testified at the divorce hearing ...


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