NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 12, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1804-07.
Nicholas R. Doria argued for the appellant/cross-respondent.
Robert T. Corcoran argued the cause for respondent/cross-appellant (Helen K. Glass, attorney; Mr. Corcoran, Karen M. Venice and Kevin W. Ku, on the briefs).
Before Judges Harris and Hayden.
Defendant Pinar Tosun appeals from a January 27, 2012 Family Part order denying her request for additional discovery into plaintiff Tamer Sevintuna's assets, and plaintiff cross- appeals from the judge's denial of his request for counsel fees. We reverse and remand for further proceedings in accord with this opinion.
The parties were married in 1994 and have three children. On February 13, 2007, plaintiff filed for divorce, and the parties conducted extensive discovery over the next three years until the trial began.
Sometime in 2005, plaintiff's business, Future Technology Associates (FTA), was awarded its first contract with the New York City Department of Education (DOE) to service computer-based financial and accounting systems. In 2009, FTA's contract was renewed. Shortly thereafter, the renewed contract came under the scrutiny of a newspaper, which soon published news articles questioning the size of the contract and suggesting FTA committed numerous fraudulent contract violations. Due to these allegations, the New York City School District Special Commissioner of Investigation (the SCI) began to investigate FTA's performance of the contract.
Meanwhile, the divorce trial started in September 2009, and several days of hearings occurred. The trial then was adjourned repeatedly for settlement conferences. Eventually, the parties resolved all issues through settlement and codified their agreement in the Marital Settlement Agreement (MSA) dated June 7, 2010. The trial judge entered a dual final judgment of divorce on the same day, which incorporated the MSA.
Paragraph 15 of the MSA stated as follows:
The parties have engaged in discovery, including business valuations and cash flow analyses, exchanges of documents and interrogatory responses and third party discovery by subpoenas. Both parties further warrant and represent they have disclosed to each other, directly, through counsel or forensic accountants, all material information that would potentially affect this Agreement. Each party is relying to their detriment upon the accuracy of these representations in accepting the terms and provisions of this Agreement. In the event it is later determined by a court that either party has breached the representations upon which each relied, all legal and equitable remedies available to the other party under law may be utilized, including but not limited to the relief that would otherwise be available under New Jersey Rule of Court 4:50-1(f) or any comparable rule of court or case law in a court of competent jurisdiction.
Paragraph 18 stated that the contract between FTA and the DOE, which totaled $42 million from August 2009 to July 2012, was the only contract from which plaintiff or FTA had any right or ability to derive income. Additionally, it provided "that no third party (including any individual, partnership or corporation) with the exception of [FTA] is holding any property or assets on his behalf in any locale or form." In ...