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Shinkle v. Shinkle12/13/2002
FOR PUBLICATION
In this post-judgment divorce action, plaintiff appeals by leave granted an order of the trial court denying his motion for discovery of defendant's antenuptial agreement with her new husband, James Rodney, as a factor in child support obligations for the parties' two minor children. We reverse and remand.
I.
The parties divorced in 1998, and defendant married Rodney in June 2001. In December 2001, the trial court ordered a change of custody that resulted in split custody of the parties' two teenage sons. The court referred the issue of child support modification to the friend of the court (FOC) for investigation and a recommendation. During the FOC investigation, defendant made reference to financial arrangements under her antenuptial agreement whereby she receives $50,000 per month from Rodney, purportedly to cover the couple's household expenses. The FOC conciliator rejected plaintiff's request to include the $50,000 monthly allowance in calculating child support. The conciliator found that plaintiff failed to show any legal or factual basis for including the money received under the antenuptial agreement as income, such as that defendant receives the money pursuant to a business arrangement with her husband rather than merely to cover her family's monthly budget for household expenditures.
Plaintiff filed a motion in the circuit court to compel production of defendant's antenuptial agreement to determine whether any money received under the agreement could be considered income for purposes of child support. At a hearing on the motion, the trial court asked plaintiff whether he could cite any case law stating that payments pursuant to a prenuptial agreement are considered income. Plaintiff responded in the negative, but argued that discovery of the agreement and its terms was necessary to determine what legal arguments could be made for including the payments as income. The trial court denied the motion, concluding that the antenuptial agreement was "not relevant and not reasonably calculated to lead to discoverable evidence."
II.
This appeal presents an issue of first impression: whether, and to what extent, plaintiff is entitled to discover the provisions of defendant's antenuptial agreement with her new husband to potentially claim that money allocated to defendant under the agreement is properly a factor in calculating the parties' child support obligations. We hold that the antenuptial agreement is subject to limited discovery following an in camera review and redaction by the trial court to avoid disclosure of irrelevant confidential financial arrangements between defendant and her new husband and his separate financial information. The in camera review shall be conducted without counsel present, and the court shall issue an appropriate protection order limiting the use and subsequent disclosure of the information released. Discovery is limited to the terms of the agreement related to defendant's monthly $50,000 allowance to determine whether the allowance should be considered in establishing child support pursuant to the Michigan Child Support Formula Manual.
III.
This Court reviews a trial court's decision to grant or deny discovery for an abuse of discretion. In re Pott, 234 Mich App 369, 372; 593 NW2d 685 (1999). We review questions of law de novo. Burba v Burba (After Remand), 461 Mich 637, 647; 610 NW2d 873 (2000). Preliminary questions of law affecting the admissibility of evidence are reviewed de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
IV.
Michigan has long supported a policy of far-reaching, open and effective discovery p
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