No. 3--01--0292

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

ELIZABETH ANN PUTERBAUGH,	)	Appeal from the Circuit Court

	Petitioner-Appellee,	)	for the 10th Judicial Circuit,

						)	Peoria County, Illinois

						)	

	v.					)	No. 94--D--878

						)	

DAVID LESLIE PUTERBAUGH,		) 	Honorable

	Respondent-Appellant.	)	David J. Dubicki

						)	Judge, Presiding		 _______________________________________________________________

	JUSTICE BRESLIN delivered the opinion of the court: 

_________________________________________________________________

	Petitioner Elizabeth Puterbaugh filed this action against respondent David Puterbaugh requesting an increase in the amount of

child support for their children.  During discovery, Elizabeth

requested a copy of David’s antenuptial agreement that he had

executed with his current wife, Katherine.  David and Katherine

refused to comply with the court's discovery order, claiming that

their antenuptial agreement was protected by marital privilege and

by a constitutional right to privacy, and that the requested

information was duplicative of information they had already

provided.  The trial court rejected their arguments and found David

and Katherine in indirect civil contempt, sanctioning them $500 and

$50 per day, respectively, until they complied with the order. 

David and Katherine appealed.  We affirm and hold that antenuptial

agreements are not protected by the marital privilege or by a right

to privacy.  Because an issue remains as to the relevance of the

requested document, we remand for an in camera inspection by the trial court as to the document’s relevance.  Finally, we vacate the contempt order and sanctions as David and Katherine’s refusal to

comply was a good faith test of the court’s discovery order. 

FACTS

	Elizabeth and David Puterbaugh were married in 1988.  They have two children, Walter, age 12, and George, age 1l.  Elizabeth

and David divorced in 1996; Elizabeth was granted physical custody

of the children.  David was ordered to pay $3,000 per month in

permanent child support and pay other expenses, such as private

school tuition and medical costs.  Thereafter, David and Katherine

decided to marry.  They signed an antenuptial agreement in

contemplation of that marriage. 

	Several years later, Elizabeth filed a motion requesting that

the court increase the amount of David's child support payments. 

Accordingly, Elizabeth served David with several requests for

production of documents, seeking David's financial information from

1996 to the present.  One of Elizabeth's requests for production

sought a copy of David and Katherine’s antenuptial agreement. 

David objected, and shortly thereafter, Katherine intervened. 

After a hearing on Elizabeth's motion, the court ordered that one

page of the antenuptial agreement that contained a financial

exhibit be produced.  When David and Katherine failed to produce

the exhibit, they were held in contempt of court and sanctioned $500 and $50 per day, respectively, until they complied with the

court's order. Their motion to stay enforcement of the contempt

order was granted by the trial court, and they appealed. 

ANALYSIS

	On appeal, David and Katherine argue that their antenuptial agreement was protected by marital privilege, that production of

the requested exhibit would violate their right to privacy, and

that the contempt order and sanctions should be vacated.

	We review questions of law de novo. See In re Marriage of Bonneau, 294 Ill. App. 3d 720, 691 N.E.2d 123 (1998). 

	With regard to David and Katherine's first argument, they

claim that their antenuptial agreement is privileged and that

disclosure of the exhibit would violate their right to privacy in

their marriage.  In support of their argument, they assert that the agreement was prepared and executed "in contemplation of marriage"

and that they were "effectively spouses" at the time of its

execution. See 750 ILCS 10/2 (West 2000).  David and Katherine contend that because marriage has been given broad constitutional

protections as a fundamental right and because the antenuptial

agreement concerns matters related to their marriage, the required

disclosure of the antenuptial agreement would violate their privacy

rights.  

	Section 8-801 of the Code of Civil Procedure (Code) (735 ILCS

5/8-801 (West 2000)) sets forth the marital privilege.  It states

in part that "in all actions, husband and wife may testify for or

against each other, provided that neither may testify as to any

communication or admission made by either of them to the other or

as to any conversation between them during marriage***."  The

marital privilege is intended to preserve the privacy of communications between spouses. In re Baby Boy Butt, 76 Ill. App. 3d 587, 395 N.E.2d 1 (1979).  The privilege has not been extended to testimony regarding conversations and transactions occurring

prior to marriage. Otis v. Spencer, 102 Ill. 622 (1882). 

	Although David and Katherine argue that the antenuptial agreement is privileged, their agreement does not fall under the

plain meaning of the marital privilege statute.  Because the

language of section 8-801 (735 ILCS 5/8-801 (West 2000)) provides

that the marital privilege applies to communications "during 

marriage," the privilege is inapplicable in this case because David

and Katherine were not married when the agreement was executed.  As

a result, David and Katherine's argument must fail. See In re Marriage of Beyer & Parkis, 324 Ill. App. 3d 305, 753 N.E.2d 1032 (2001) (noting that words are to be given their ordinary meaning

when a court interprets a statute). We hold that David and Katherine's antenuptial agreement was not protected under the

marital privilege and the financial exhibit was not excluded from

discovery on that ground.  

	toDavid and Katherine argue that their right to privacy in their marriage under the constitutions of the United States and Illinois

(Ill. Const. 1970, art. I, §6 (West 2000)) would be violated if

they were forced to produce the financial exhibit.  If this court

determines, however, that their constitutional right to privacy

does not extend to antenuptial agreements, they argue that the

exhibit is duplicative of the financial information that Elizabeth

already has.  

	We do not agree with David and Katherine's argument that

because antenuptial agreements address intimate aspects of

marriage, they are protected under a right to privacy.  The

guarantees of privacy emanating from the United States Constitution

protect personal rights which are fundamental in the concept of

ordered liberty. In re Roger B., 85 Ill. App. 3d 1064, 407 N.E.2d 884 (1980).  While Illinois recognizes a zone of privacy under its

constitution, the broader protections it affords are limited to

unreasonable invasions of privacy. People v. McCarty, 86 Ill. App. 3d 130, 407 N.E.2d 971 (1980).  The confidentiality of an

antenuptial agreement, however, is not a right which is fundamental

in the concept of ordered liberty nor does it rise to the level of

other protected rights such as the right to marry or the right to

procreate.  See Nicpon v. Nicpon, 145 Ill. App. 3d 464, 495 Ill. N.E. 2d 1193 (1986) (noting that not every classification relating to the

incidents of marriage involve the intensely personal decisions the

Supreme Court found to be fundamental).  Accordingly, we hold that the financial information contained in David and Katherine's

antenuptial agreement is not protected by the couple's

constitutional right to privacy in their marriage.   

	 Although we reject the couple's constitutional argument, we

do agree that an issue still exists as to whether the exhibit was

relevant in light of the extensive financial information David has

already provided.  Because the relevancy of the information has not

been determined by the trial court, we remand for an in camera hearing for that determination. See In re Estate of Bagus, 294 Ill. App. 3d 887, 691 N.E.2d 401 (1998) (noting that evaluating the

relevance of discovery requests is a judicial function). 

	We now address David and Katherine's third argument that the contempt order and sanctions should be vacated because their

refusal to produce the antenuptial agreement was a good faith test

of the validity of the discovery order.  

	A contempt proceeding is an appropriate means for testing the

validity of a discovery order. In re Marriage of Daniels, 240 Ill. App. 3d 314, 607 N.E.2d 1255 (1992).  Our review of the record indicates that David and Katherine's refusal to comply with the discovery order was based on their legitimate assertion that the

antenuptial agreement was privileged.  David and Katherine's lack of success with their privilege argument does not indicate a lack

of good faith in asserting it. See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 698 N.E.2d 641 (1998) (contempt order vacated even though privilege was not upheld).  That they were willing to risk an order of contempt being entered against

them demonstrates that their refusal to comply was a good faith

effort to secure an interpretation of the marital privilege. See

People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 686 N.E.2d 66 (1997).  Accordingly, we hold that the contempt order and sanctions should be vacated. 

	For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed in part, remanded in part and vacated

in part.

	Affirmed in part, remanded in part and vacated in part.

	LYTTON, P.J., and HOMER, J., concur.