Arbitrating an MSA Drafting Dispute: Opinions, May 17, 2018

The Fourteenth Court of Appeals released a memorandum opinion in Farmer v. Farmer, No. 14-17-00077-CV yesterday, which primarily concerns the effect of an arbitrator’s ruling on a MSA drafting dispute.

Wife filed for divorce in March 2015 and husband counterpetitioned. After a number of continuances, the trial court denied wife’s last motion for continuance and set trial for good on September 19, 2016.

On the date of trial, the court excluded wife’s expert, Robert Adams. After that, the parties entered into an MSA which was proved up that same day. The trial court orally rendered the divorce on September 19 and, on October 26, 2016, the trial court entered a final decree of divorce. (If I’m reading this opinion correctly, the timeline here is impressive: On the date of trial, the parties held a Daubert hearing on wife’s expert; then they rushed to mediation, settled the case, and signed the MSA. Then they rushed back to the courthouse and proved up the MSA before the ink was dry. Quite a day.)  Wife filed a motion for new trial, complaining the trial court improperly incorporated a property division into the decree. The property division included in the decree evidently was the ruling of the mediator, serving as arbitrator of drafting disputes. The MNT was denied by operation of law.

On appeal, wife asserted three issues: 1) the decree should be set aside because it departs from the MSA on the property division; 2) wife’s expert was improperly excluded; and 3) wife’s motion for continuance was denied.

On the first issue, wife argued the property division from the MSA should have been used in the decree, not the one signed by the mediator/arbitrator. First, the Court of Appeals noted that the divorce decree and the property division were attached to her notice of appeal and to her opening brief in an appendix, but were not in the appellate record. Because the documents were not included in the record, the Court of Appeals could not consider them.

But even if they had been in the appellate record, the Court of Appeals held the trial court did not err. First, the trial court could have reasonably relied on the property division as being the result of arbitration (as was provided for in the MSA). Secondly, wife did not include a sufficient record of the arbitration. The first issue was overruled.

As for her second and third issues, husband argued these issues were moot because the parties settled. The Court of Appeals agreed, finding the issues became moot once the parties signed the MSA. The trial court was affirmed.


Offers of Proof for Excluded Evidence: Opinions, May 10, 2018

The First District Court of Appeals released a memorandum opinion this morning in Jacob v. Jacob, No. 01-16-00835-CV, denying mother’s appeal of an order denying her request for an increase in child support. The mother and father had a child and divorced in 2010. Subsequently, the mother had another child and consequently sought a reduction in her monthly child support. At trial, she sought to introduce evidence of her increased expenses and costs related to the new baby, but father objected to the evidence as going outside the scope of her disclosures. Crucially, mother did not make an offer of proof and the Court of Appeals overruled the issue because the error was not preserved. Additionally, mother filed a motion for new trial regarding the excluded evidence, which was denied by the trial court, and the  Court of Appeals affirmed because a motion for new trial cannot preserve error related to the admission or exclusion of evidence. Finally, mother challenged the trial court’s failure to issue findings of fact and conclusions of law, but the Court of Appeals said the remedy for that was to move in the appellate court to abate the case and order the trial court to issue the FF/CL. The trial court was affirmed.

Default Judgment, Disabilities, & Child Support: Opinions, May 3, 2018

The First District Court of Appeals released a memorandum opinion this morning in Dobyanski v. Breshears, No. 01-17-00407-CV, in which the Court of Appeals sustained Father’s restricted appeal and reversed an increase in child support granted on a default basis. Though the case is about child support, it also concerns disability findings and the evidence necessary to establish them.

Mother and Father entered into an agreed order which required Father to pay $490/mo in child support until the child reached the age of 18. About five years later, Mother petitioned for a modification and increase in monthly support.

Father was not present at the modification hearing. Mother testified (and provided doctor’s reports) to the child’s diagnoses of vaccination delay, oppositional defiance disorder, ADHD, developmental language disorder, and autism spectrum disorder. She also testified that the child’s schedule and routine could not vary from day to day and that she believed the child’s disability would prevent her from working full time.

Regarding the father’s financial status, she testified that he was employed as a conductor for a railroad. She also presented a copy of an agreed order from another case in which Father was ordered to pay child support of $600/mo. That agreed order from 2015 showed Father’s gross monthly resources were $7,437.56 and his net monthly income $5,423.30.

Mother requested an increase to $1,200 in monthly child support. She conceded that under the guidelines, Father would not owe $1,200/mo unless his gross monthly income was $9,200. Mother testified that she believed Father was capable of earning that much because he was always telling her he could not visit the child because he was working.

The trial court entered a default order which found: 1) there had been a substantial and material change in circumstances; and 2) the child required substantial care and personal supervision and would not be capable of self-support as long as his disability existed. The order increased the child support obligation to $1,200/mo and to continue beyond the child’s age of 18.

Father filed a restricted appeal, alleging Mother failed to adduce evidence of the parties’ net resources that justified the amount of child support or that the support should continue beyond the child’s 18th birthday.

The Court of Appeals found that the evidence did not support the finding that the child was disabled because Mother’s testimony that the child, aged 6, requires a “very high level of care ” and constant monitoring “does not explain how [the child] requires care beyond that required for a typical child of his age or the extent to which any care or supervision is made necessary by his diagnoses.” Further, the list of diagnoses “provides no information concerning the severity of those conditions or how they may limit his ability to function,” nor did the evidence show the extent to which the mother “takes more time or incurs additional expense to care for and supervise [the child].”

Finally, the evidence before the trial court did not show the father’s current net resources or the additional financial support that is necessary to provide the child with substantial care and personal supervision indefinitely into the future.

The Court of Appeals specifically cited and relied upon Justice Guzman’s concurrence in the denial of petition for review in In re D.C., No. 16-0543, in which Justice Guzman essentially said–rightly– that the caselaw regarding adult disabled child support and the evidentiary requirements thereof under TFC §154.302 was all over the map because of the ambiguity of the statute and calling on the Legislature to provide the courts with more guidance (which I blogged about here). Today’s opinion appears to be a signal to the trial courts that at least the First District Court of Appeals is going to be a lot more rigorous in its review of evidence in support of disability findings under Section 154.302 in the future.




Evidence, Predicates, & Rule 408: Opinions, May 1, 2018

This morning, the Fourteenth District Court of Appeals released a memorandum opinion in In re J.C.K., No. 14-17-00082-CV, an appeal from a modification in which the father was ordered to pay attorney’s fees in the amount of $252,996.55. But most of the father’s issues on appeal and much of the twelve-page opinion revolve around evidentiary rulings and a packet of documents–a MacGuffin–that was never entered into evidence.*

In April, 2010, the trial court entered a divorce decree which named the parents JMCs of the child. In December, 2010, mother’s attorney sent a letter to father’s attorney which included a proposed modification order, a packet of other documents, and an affidavit by the mother which alleged the father had assaulted her as well as several other women and had drug and alcohol problems. At the time, the father was on deferred adjudication for a previous assault of the mother that had occurred prior to the divorce. In the letter, the mother’s attorney expressed a desire that the parties could reach an agreement regarding the modification based on the attached documents or the mother would have to file the mod with the affidavit attached. According to the father, the proposed modification order would have effectively ended his right to see his son as the proposed order made visitation at the mother’s sole discretion and would have required him to pay exorbitant sums in child support. As mentioned above, the packet of documents which accompanied the letter from mother’s lawyer was also at issue at trial and the appeal. In his brief, father calls this letter from mother’s lawyer an extortion attempt.

Mother filed the modification (without the affidavit attached), seeking to be named SMC, limiting the father’s possession and access, and requesting an increase in child support and payment of the mother’s attorney’s fees. The father counterpetitioned. At the conclusion of the trial, the court named mother SMC and ordered father’s visitation be reduced, supervised, and contingent on him meeting certain requirements, such as him attending drug therapy, and avoiding conviction for domestic violence. The court also ordered him to pay $252,996.55 in attorney’s fees. The court’s findings of fact and conclusions of law found mother had presented credible evidence of father’s drug abuse and violence against women and that it was in the child’s best interests to modify the order.

During the trial, father offered the attorney’s letter which preceded the suit and the mother’s affidavit into evidence. They were admitted. He also evidently “indicated a desire” to enter into the record the entire packet of documents that accompanied the letter and affidavit, but evidently did not offer them. Then, after trial, he attempted to enter into the record a formal bill of exception containing the document packet, but the trial court sustained mother’s objection and refused to accept or sign the bill. Specifically, the trial court found father failed to lay the proper predicate or mark and offer the packet into evidence. Also, he failed to timely comply with all requirements to obtain a completed formal bill of exception.

The father’s first seven issues on appeal assert the trial court erred by not admitting into evidence or considering the packet of documents. Father submitted a bench brief in which he argued the packet of documents was admissible. Mother argued the documents constituted part of a settlement offer and thus were inadmissible. The trial court found that, at that point during the trial, the documents were part of a settlement offer, but did state that the court had not yet heard testimony which would support admitting the documents into evidence under one of the other purposes Rule 408 allows for settlement-related material. On appeal, father argued this was a final ruling regarding the admissibility of the documents; mother argued the trial court did no more than offer a preliminary indication of its ruling which could  change subject to later testimony and potential predicate-laying.  The Court of Appeals found father failed to actually offer the packet of documents into evidence, failed to lay a predicate, and thus failed to preserve the issue of the admissibility of the packet. The issues were overruled.

In his eighth issue, the father challenged the legal and factual sufficiency of the evidence to support the award of attorney’s fees. The trial court found mother had incurred $414,809.80 in reasonable attorney’s fees and ordered father to pay $252,996.55 to mother’s attorney. The Court of Appeals found that though the evidence supporting the reasonableness of the fees “[was] quite succinct,” it was sufficient to support the award.

The trial court was affirmed.

*Because the packet of documents was not entered into evidence and was not part of the record, the court’s opinion does not indicate what the packet contains.







Homeschooling & Educational Decisions: April 26, 2018

The Fourteenth District Court of Appeals released a memorandum opinion this morning in In re M.C.K., No. 14-17-00289-CV, concerning homeschooling and educational decisions.

Mother filed a modification regarding custody of the child. Though Father did not file any pleadings regarding educational decisions, the MSA explicitly stated that the parties were reserving educational decisions as an issue for trial. Mother objected at trial to educational decisions being an issue at trial and the trial court allowed Father’s oral trial amendment.

When the child was a baby, Mother was awarded the right to make educational decisions for the child. But once the child became school-aged, Father sought to share that right because he was concerned about Mother’s homeschooling of the child. The trial court modified the parent-child relationship to give both parents the right to make educational decisions and ordered that, if they cannot agree, the child will attend public school. Mother appealed, arguing the evidence was insufficient to support the judgment.

At trial to the bench, Mother testified that she opposes public schools because: they do not promote critical thinking; they primarily teach children to memorize and regurgitate facts for standardized tests; and they do not teach Hebrew in school which was important to her because she is Jewish. She does not have any teaching degrees or certifications, though she did teach for one year at a Montessori school and she homeschooled her two older children (ages 16 and 11) for their whole lives. She testified that she does not follow a specific curriculum but she shops for textbooks on eBay, at teacher supply stores, and at HalfPrice Books. While the children are working on assignments she gives them, she works as a subcontractor for an online company that offers work-from-home employment.

Father testified that he is worried that the child is isolated in her homeschooling environment and that the child had never attended a birthday party or had play dates with other children. Mother testified that the child played with other children in the community, but she could not name any friend of the child’s and admitted the child had never been to a birthday party for a five-year-old. Father also expressed concern about the child’s curriculum and testified that when he asks the child what she is learning, the child does not say anything.

The Court of Appeals affirmed the trial court, finding the evidence was sufficient to support the trial court’s judgment and that the trial court’s judgment was not an abuse of discretion.


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The Difference Between UCCJEA & UIFSA: Opinions, April 17, 2018

The First District Court of Appeals released a published opinion this morning in In re Meekins, No. 01-17-00696-CV, addressing the difference between the UCCJEA and UIFSA when it comes to a Texas court determining another court is a more convenient forum. In a seemingly bizarre result, the child custody modification is to be transferred to Illinois, while the child support modification remains in Texas for the time being.

Mother lived primarily in Baytown, Texas but traveled a lot for work, particularly in the Midwest. She began a relationship with Father, who lived in Chicago. The parties had a daughter in 2011 and entered into an agreed SAPCR in 2013 which named Mother as primary and granted father a modified possession order. Because of her frequent travel to the Midwest, Mother leased an apartment in Chicago. She also allowed Father to have greater periods of possession than the order called for.

In March 2017, Father filed a petition to modify the parent-child relationship, alleging the trial court had exclusive continuing jurisdiction and that the child’s county of residence was now Cook County, Illinois. He further alleged Mother had relinquished the primary possession and care of the child to another person for at least six months. He asked to be named primary and to receive child support from Mother. He also filed a motion to transfer the modification to Cook County, Illinois, where he had allegedly filed a child custody proceeding.

Mother moved to strike the petition to modify and the motion to transfer because the petition to modify failed to disclose information required under the UCCJEA and the motion to transfer because he failed to “follow the procedures of the UCCJEA in order to invoke the jurisdiction of the Courts in Cook County, Illinois.” In response, Father filed a UCCJEA affidavit, alleging the child had resided with him from August 2015 to the present.

Father also filed an affidavit in support of his motion to transfer which alleged that: on at least one occasion, Mother had been heavily intoxicated in front of the child; that he had been responsible for taking the child to doctor’s appointments which Mother did not attend; that the child was enrolled in dance classes in Chicago; and that he helped the child with her homework. Mother filed an affidavit which countered Father’s allegations, stating she resides in Galveston County, Texas, the child’s principal residence was in Galveston, her home is in Friendswood, her driver’s license still has her Galveston address, and that she does travel often to Chicago for work.

On April 27, 2017, a visiting associate judge heard the motion to transfer and Mother’s motion to strike and denied both motions. Father then moved for a de novo hearing in front of the presiding judge, which was heard on July 7, 2017.

At this hearing, Father, now represented by new counsel, argued for the first time that the trial court did not have continuing exclusive jurisdiction over the case because Texas was not the child’s home state when the original order was entered in November 2013 because the child moved to Illinois a few weeks after she was born in 2011 and she had lived in Illinois for the six months preceding the filing of the original SAPCR.

Father offered into evidence calendars he had prepared showing the child had spent 85% of her time in the six months leading up to filing the petition to modify in Illinois and 15% in Texas. He further testified that the child attended pre-school and dance classes in Chicago during the 2016-17 school year.

Mother testified that she is a global account executive and that though she has an apartment in Chicago, she bought a house in Friendswood and contemplated having the child attend school in the Friendswood school district where the child would be close to cousins. Because the child was not of school age yet, she employed a live-in nanny in Friendswood who would sometimes watch the child and bring her with her when she traveled for work. She disagreed with Father’s calculations of how much time the child spent with both of them, estimating the breakdown of time spent between her and Father was closer to 55/45. She testified that she stopped leasing an apartment in Chicago in June 2017 in anticipation of the child starting school that fall and that she had not been traveling for work as much and that she anticipated travelling less because the child was about to begin school.

At the conclusion of the hearing, the judge stated on the record: ““[F]rom the evidence I’ve heard, the child has resided the vast majority of the time with both parents most of the time in Illinois.” The court orally granted the motion to transfer and stated it would stay the proceedings in Texas while it conferred with the judge in Illinois. The court further stated it would not dismiss the proceedings unless and until it had been transferred to the court in Illinois. After the hearing, the court signed an order granting the motion to transfer and denying Mother’s motion to strike. The case was transferred to Cook County, Illinois, but ordered the petition to modify be stayed pending a decision by the Court in Illinois to accept or reject jurisdiction of the case. Mother requested findings of fact and conclusions of law, but the trial court did not issue any.

On August 7, 2017, the trial court signed an order granting the motion to transfer and staying the modification. Although the modification was stayed, Mother filed  an enforcement on August 7, 2017, alleging Father had failed to comply with the original order by failing to surrender the child on two occasions that month. The matter was set for hearing on August 17, 2017, but the hearing did not happen because Father had not been served. On August 22, 2017, she filed a first amended motion for enforcement, alleging Father had violated the original order on four separate occasions bey refusing to return the child to her. On August 24, 2017, she filed a motion asking the court to set a hearing on her amended motion for enforcement which included an affidavit alleging Father had been hiding and secreting the child, that Father had admitted to local police in Illinois that he was keeping the child in violation of the court’s orders, that Mother had not seen the child in twenty days, and that the child had missed her first few days of school in Friendswood. The trial court did not rule on Mother’s first amended motion for enforcement. Mother then filed a mandamus.

The Court of Appeals addressed Mother’s third and fourth issues first, in which she alleged the trial court abused its discretion by transferring the modification to Illinois in violation of the UCCJEA.

Section 152.201(a) of the UCCJEA provides that a Texas court has jurisdiction to make an initial determination in four instances, the first of which is when Texas is the home state of the child (i.e. the child resided in Texas for six months before the proceeding was filed). Section 152.202 provides that Texas shall remain the court of continuing exclusive jurisdiction over its determination until:

(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state
concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

The UCCJEA also allows a Texas court to decline jurisdiction if it determines that it is an inconvenient forum under Section 152.207(a). Section 152.207(b) lists eight non-exclusive factors for the court to consider in determining whether it is appropriate for a court of another state to exercise jurisdiction.

The COA noted that Father’s then-new attorney’s argument that the trial court never obtained exclusive continuing jurisdiction because Texas was not the child’s home state in November 2013 dealt with the trial court’s subject matter jurisdiction and thus it must first determine if the trial court had jurisdiction when it entered its original order in 2013. While the original order was part of the record, the pleadings from that matter were not. The parties disagreed about which state the child lived in prior to the SAPCR being filed and even when the SAPCR was filed. The trial court had the discretion to resolve the conflicting accounts in Mother’s favor and though it did not state so explicitly, it impliedly determined as much when it ruled that it had jurisdiction over the modification under the UCCJEA.

Next the COA looked at whether the trial court retained continuing exclusive jurisdiction (“CEJ”). By virtue of the prior order, the trial court would retain CEJ unless and until the two instances detailed in Section 152.202, excerpted above. Mother contended that to the extent the trial court determined it did not have CEJ anymore, it erred because the mother and child still had a significant connection to Texas. Looking to the Mother’s home in Friendswood and condo in Galveston, her employment for a Houston-based company, Texas driver’s license, Texas voter registration, and extended family in Texas, the COA concluded she did have a significant connection with Texas. Thus under section 152.202, the trial court retained CEJ over the modification.

Though a trial court may have CEJ, it may decline to exercise that jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of  another state is a more appropriate forum. The COA reviewed the conflicting evidence and determined that the trial court, in granting the motion to transfer and staying the modification, impliedly found Texas was an inconvenient forum and that Illinois was a more convenient forum. The COA found that based on the conflicting evidence, the trial court could not have reached only one possible conclusion and thus the trial court did not abuse its discretion in granting the motion to transfer and staying the proceedings pending an Illinois court’s acceptance of jurisdiction. Mother’s third and fourth issues were overruled.

In her first issue, Mother argued the trial court abused its discretion by failing to set her first amended motion for enforcement for hearing. But the COA noted that the trial court stayed the proceedings and that her enforcement motions were filed during the stay and thus were ineffective. The trial court did not abuse its discretion in failing to hold a hearing on the enforcement motions. The issue was overruled.

In her second issue, the Mother contended the trial court erred by transferring the child support portion of the modification proceeding, in violation of UIFSA. Once a Texas court has entered a support order, that court is the only court entitled to modify it as long as the court retains CEJ. Only if the issuing state no longer has a sufficient interest in the modification of its order may the responding state assume the power to modify it. Section 159.205 provides a Texas court that has previously issued a support order may lose CEJ to modify the order if:

(1) all of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) the tribunal’s order is not the controlling order.

The COA notes that, unlike the UCCJEA, UIFSA provides no mechanism for the issuing state to decline to exercise its CEJ and transfer jurisdiction to modify a support order to a court in another state. Thus the trial court in this matter retained CEJ over the support portion of the order if that order was the controlling order and at the time of the filing of the modification, Texas was the residence of the obligor, the obligee, or the child. Though there was conflicting evidence concerning the Mother and the child’s residence, there was considerable evidence that Texas remained at least the Mother’s residence. As such, the trial court remained the court of CEJ over the child support proceeding until a Illinois court modified the original order and could not divest itself of jurisdiction and transfer the child support modification. The trial court erred when it transferred the child support portion of the modification to Cook County, Illinois.

Mother’s mandamus was denied in part and conditionally granted as to the trial court’s transfer of the child support portion of the modification.

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The Future of Adult Disabled Child Support: Opinions, March 28, 2018

Good morning, HFLA readers! This morning we have two memorandum opinions, one from the First District Court of Appeals and the second from the Fourteenth on nunc pro tuncs and amicus fees, respectively. Also,  from last week (better late than never), an interesting concurrence in the denial of a petition for review from the Texas Supreme Court on adult disabled child support.

Taking the First first, in Leblanc v. Leblanc, No. 01-16-00777-CV, appellant appealed from the trial court’s granting of appellee’s motion for judgment nunc pro tunc. According to appellee, at a final hearing in January 2005, the court had rendered judgment ordering appellant to pay $435/mo in child support and $108.92 in medical support, but the final order mistakenly omitted the amount of child support, i.e. the blank was left empty. The docket sheet from January 31, 2005 stated “Reimb her for med ins $108.92 C/S 435.” The Withholding Order required appellant to pay $543.92 month. 435 + 108.92 = 543.92. The docket sheet was the only item admitted into evidence. The JNPT was granted and appellant appealed, arguing in nine issues that appellee failed to prove a clerical error existed. The COA found the evidence was sufficient. Additionally, appellant asserted a laches argument but the COA found this lacked merit because, while appellant showed how he would be harmed by the enforcement of an amended judgment, he did not show how he would be harmed by entry of the amended judgment. The trial court was affirmed.

In In re M.K.M.L., No. 14-17-00010-CV, father appealed the award of amicus attorney’s fees in the amount of $22,910.00 incorporated into a modification order. Specifically he challenged the evidence in support of the award and the award’s allocation. The record on appeal did not include the reporter’s record for the hearing in which the amicus’ request for fees was heard, so the evidence was presumed sufficient by the COA. As for the allocation, no evidence was presented on that issue in the trial court, and thus the COA overruled the issue.

Finally, last week the Texas Supreme Court denied a petition for review in In re D.C., 13-15-00486-CV from the 13th Court of Appeals. Justice Guzman, formerly of the Fourteenth COA and the 309th Judicial District Court, wrote a concurrence concerning the lack of guidance provided by the statute and to “highlight some of the legal inquiries that require direction from the Legislature and guidance from the Court.” Specifically, she explicitly states the Supreme Court will take up the issue of TFC § 154.302’s vagueness and ambiguity (and perhaps provide a test for the courts to employ) if the right case comes up and Legislature has not supplemented the statute.

In this case, when the parents divorced, the child was 14 years old. The trial court considered only lay testimony and found the requirements of TFC § 154.302 satisfied and ordered father to pay child support indefinitely. More than ten years later, father filed a motion to terminate the monthly support. By that time, the child had aged out, graduated from college with a double major, lived in a dormitory by himself, and had begun pursuing a master’s degree. Again, only lay testimony was offered concerning the child’s disability, self-supportability, and need for care and supervision. The trial court declined the motion to terminate the support but ordered the mother to apply for all government services the child may qualify for, including Social Security, and stated the parties could revisit the issue if the child began receiving such benefits. The Court of Appeals affirmed, finding father did not establish there had been a material and substantial change in the child’s circumstances since the decree was entered.

Justice Guzman noticed that the statute does not define mental or physical disability or specify what type of proof is required to meet the statutory standard. “But parents need to know what they need to prove and how they need to prove it.” After considering many of the questions that the statute raises, and noting that many of the decisions from Texas courts vary greatly in the “nature and quantum of proof,” Justice Guzman all but issued a plea to the Legislature to develop a standard or the Supreme Court will have to provide it.

Hat tip to Janice Berg for drawing my attention to the concurrence!


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