Christian Vaccari VS Joan Y. Vaccari

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1945 CHRISTIAN VACCARI VERSUS JOAN Y VACCARI 0 Judgment Rendered JUL 2 9 2010 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 2004 10277 The Honorable Raymond S Childress Judge Presiding Robert C Lowe Counsel for PlaintiffAppellant Suzette Marie Smith Christian Vaccari New Orleans Louisiana And Rykert Toledano Jr Covington Louisiana Frank P Tranchina Jr Counsel for DefendantAppellee Covington Louisiana Joan Y Vaccari And Danyelle M Taylor Westwego Louisiana H Jmow i BEFORE E cw s NG GAIDRV AND McCLENDON JJ d Esrd zf ql C r N J C NCUas w R lE ur on s G 4s Flvfs N GAIDRY J In this case a father appeals a trial court judgment awarding final child support For the following reasons that judgment is amended and as amended affirmed FACTS AND PROCEDURAL HISTORY Christian Vaccari and Joan Vaccari were married on April 8 1989 Four children were born of the marriage all of whom were minors at the time the petition for divorce was filed divorce on January 16 2004 Mrs Mr Vaccari filed a petition for Vaccari filed an answer and reconventional demand on March 5 2004 asking for interim spousal support child support and use of the former matrimonial domicile The Vaccaris were divorced on April 21 2004 Thereafter Mr Vaccari sought rental reimbursement for Mrs Vaccari use of the former family home s pending partition of the community The hearing officer made a recommendation that Mr Vaccari pay Mrs Vaccari child support in the amount of 7 per month This 00 000 amount was based on the parties income and expenses and an extrapolation of the child support guidelines because the income was in excess of the guidelines The hearing officer also recommended that Mr Vaccari provide medical and dental insurance for the children as well as pay 100 of insurance deductibles and necessary medical expenses not covered by insurance tuition tutoring uniforms activity fees after school expenses and mutually agreedupon summer camps The hearing officer recommended Mr Vaccari pay Mrs Vaccari spousal support in the amount of 3 per month 00 000 She also recommended that Mr Vaccari pay the s homeowner insurance flood insurance real estate taxes and maintenance 2 expenses on the former community home which would be occupied by Mrs Vaccari and the children A November 8 2004 consent judgment provided that the parties would list the former community home for sale Mrs Vaccari would continue to occupy the home pending its sale and Mr Vaccari would not be entitled to rental reimbursement for that use The parties further agreed that Mr Vaccari would continue to pay the following expenses on the former community domicile directly to the parties owed the mortgage note agreedupon maintenance the outdoor man who maintains the exterior of the premises property taxes homeowners insurance and flood insurance Mrs Vaccari would reimburse Mr Vaccari for these payments at the time of the partition of the community In a May 5 2005 judgment the court ordered Mr Vaccari to pay child support of 7 per month retroactive to the date of the hearing 00 000 s officer recommendation without any prejudice whatsoever to the rights of the parties concerning the ultimate amount of child support After a hearing on the issue of child support the court appointed Greg Verges CPA CVA as an expert in forensic accounting to assist it in determining the income of the parties and the needs of the children for purposes of calculating the appropriate amount of child support Mr Verges issued his first report on January 26 2007 after which the court granted Mr and Mrs Vaccari the opportunity to provide additional information for Mr sconsideration Verges On April 30 2007 Mrs Vaccari filed a petition seeking to annul the November 8 2004 consent judgment alleging that her consent to the This judgment was later referred to by the court in its reasons for judgment as the October 2004 judgment 3 judgment was induced by fraud and ill practice as Mr Vaccari made gross misrepresentations concerning his income Mrs Vaccari alleged that she only agreed to list the former community domicile for sale based upon Mr s Vaccari misrepresentation that he had insufficient income to support the current expenses of the home and current lifestyle of his family Mrs Vaccari alleged that once Mr Vaccari was ordered by the court to produce proof of his income for 2004 and subsequent years to Mr Verges she realized that his income was exponentially greater than he revealed to the Court the hearing officer or Mrs Vaccari Mr Verges issued a revised report on June 25 2007 After the revised report was issued the court allowed both parties the opportunity to depose Mr Verges regarding his report prior to trial After the trial Mr Verges issued a final report to the court dated November 30 2007 On June 6 2008 the court signed a consent judgment dismissing Mrs s Vaccari petition to nullify the November 8 2004 consent judgment with prejudice and providing that the former matrimonial domicile would be taken off the market and would instead be dealt with in the community property partition which would be tried within one year of the date of the judgment The consent judgment also reaffirmed and ratified the paragraphs of the November 8 2004 consent judgment which provided that Mrs Vaccari would continue to reside in the former community domicile that Mr Vaccari would not be entitled to rental reimbursement for her use of the former community domicile and that Mr Vaccari would continue to pay the mortgage agreedupon maintenance the outdoor man the property taxes the homeowners insurance and the flood insurance but that he will be reimbursed by Joan Y Vaccari from her one half share of the community property at partition in After considering Mr Verges report and recommendations as well s as the testimony and other evidence offered by the parties in support of their positions the court rendered another judgment on October 3 2008 which set child support at 16 per month retroactive to March 4 2004 00 546 The court noted that this 16 includes an amount for repairs 00 546 maintenance property taxes and insurance on the former matrimonial domicile In addition to the monthly child support payment of 16 00 546 the court ordered Mr Vaccari to pay a monthly vehicle allowance of 00 500 per month retroactive to the date of filing until the partition of the community or replacement of the vehicle whichever comes first and 00 800 per month thereafter The court also ordered Mr Vaccari to pay Mrs Vaccari a monthly housing allowance of 4upon partition of 00 000 the community or sale of the former matrimonial domicile whichever comes first Mr Vaccari filed a motion for new trial which was denied by the court in a June 30 2009 judgment This appeal followed in which Mr Vaccari raises the following assignments of error 1 The trial court erred in making the final child support award retroactive where there was an interim child support award in effect 2 The trial court erred in not using Worksheet B of the child support guidelines to determine child support where the parties shared joint custody 3 The trial court erred in substantially altering two final judgments 4 The trial court erred in awarding Mrs Vaccari an additional amount for a vehicle allowance when an amount for vehicle replacement was included in the child support payment 5 5 The trial court erred in failing to impute some income to Mrs Vaccari for child support purposes 6 The trial court erred in including the entire estimated housing costs for the house in which Mrs Vaccari lives in the child support award 7 The trial court erred in ordering Mr Vaccari to pay a speculative housing allowance for Mrs Vaccari 8 The trial court erred in awarding an in globo child support award 9 The trial court erred in ordering Mr Vaccari to pay 100 of the s children major activities DISCUSSION As a preliminary matter we note that the standard of review in a child support case is manifest error Generally an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error State Department ofSocial Services ex rel D v L T 05 1965 p 6 La F 06 6 7934 So 687 690 2d Retroactivity ofChild Support Award In his first assignment of error Mr Vaccari argues that the trial court erred in making the final child support award in the October 3 2008 judgment retroactive to March 4 2004 the date Mrs Vaccari first filed her request for child support where the May 5 2005 interim child support award was in effect when the October 3 2008 judgment was signed Louisiana Revised Statutes 9 addresses retroactivity of child 21 315 support judgments providing in pertinent part A Except for good cause shown a judgment awarding modifying or revoking an interim child support allowance shall be retroactive to the date of judicial demand but in no case prior to the date of judicial demand Gi B 1 A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date 2 If an interim child support allowance award is not in effect on the date of the judgment awarding final child support the judgment shall be retroactive to the date of judicial demand except for good cause shown but in no case prior to the date of judicial demand C Except for good cause shown a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand but in no case prior to the date of judicial demand In Moran v Moran 02 1562 La I Cir 06 858 So App 03 27 2d 581 writ denied 03 2124 La 11 857 So 502 this court held that 03 7 2d under the clear meaning of La R 9 where there is an interim S 315 21 child support award in effect a trial court award of final child support is s effective only from the date the judgment was signed and thus the trial s court determination that the final child support award was retroactive to the date of filing of the petition for divorce was erroneous Mr Vaccari argues on appeal that under this court holding in Moran v Moran the s lower court was without authority to make the final child support award retroactive Mrs Vaccari alleges that the language included in the May 5 2005 judgment awarding interim child support stating that the award was made without prejudice to the rights ofthe parties concerning the ultimate amount of child support was intended to allow for the final child support award to be retroactive She further alleges that the interim child support award was calculated based upon Mr Vaccari gross underreporting of his income in s an affidavit provided to the hearing officer In support of her assertion that the trial court always intended to make its final child support award retroactive she points to the fact that after it was determined that Mr 7 s Vaccari income was much higher than he previously reported the trial court denied Mrs Vaccari request in 2007 to modify the interim child s support award stating that the Court has ordered that any final judgment of support shall be retroactive to the original date of filing Mrs Vaccari argues that nothing in La R 9 would prevent the court from S 315 21 making a final award of child support retroactive for good cause shown despite the existence of an interim award and that Mr Vaccari gross s underreporting of his income constitutes such good cause As this court previously held in Moran La R 9 clearly S 315 21 states that a trial court award of final child support is effective only from s the date the judgment is signed where an interim child support award is in effect at the time final support is awarded Thus the trial court erred in making the final child support award retroactive to the date of filing Therefore the October 3 2008 judgment is amended to remove the provision making the award retroactive to the date of filing Application of Worksheet B ofthe Child Support Guidelines In his second assignment of error Mr Vaccari alleges that the trial court erred in failing to use Child Support Guidelines Worksheet B or a substantially similar form adopted by local court rule to determine child support where the parties have shared custody The Vaccaris stipulated at the trial of this matter that the parties enjoyed physical custody of these children equal 50150 Louisiana Revised Statutes 9 provides that in situations involving shared 315 custody i where each parent has physical custody of the child for an e approximately equal amount of time child support shall be calculated as follows 0 A 2 If the joint custody order provides for shared custody the basic child support obligation shall first be multiplied by one and onehalf and then divided between the parents in proportion to their respective adjusted gross incomes 3 Each parent theoretical child support obligation s shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party 4 Each parent proportionate share of work related net s child care costs and extraordinary adjustments to the schedule shall be added to the amount calculated under Paragraph 3 of this Subsection 5 Each parent proportionate share of any direct s payments ordered to be made on behalf of the child for net child care costs the cost of health insurance premiums extraordinary medical expenses or other extraordinary expenses shall be deducted from the amount calculated under Paragraph 3 of this Subsection 6 The court shall order each parent to pay his proportionate share of all reasonable and necessary uninsured medical expenses under the provisions of R 9 S 315 7 C which are under two hundred fifty dollars 7 The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent B Worksheet B reproduced in R 9 or a S 315 20 substantially similar form adopted by local court rule shall be used to determine child support in accordance with this Subsection The child support guidelines set forth in La R 9 48 are to S 315315 be used in any proceeding to establish or modify child support filed on or after October 1 1989 La R S A 1 315 9 However the court may deviate from these guidelines if their application would not be in the best interest of the child or would be inequitable to the parties La R S B 1 315 9 The trial court addressed its decision not to use Worksheet B in its August 29 2008 Reasons for Judgment The Court declines to apply the reductions requested by Mr Vaccari based on the unique facts of this case As directed by statute where deviations from the guidelines are warranted the Court must use its discretion based on the best interests of 0 the children and the circumstances of each parent Given the great disparity in the income of the parties the former lifestyle sought to be maintained for the children and the current lifestyle of the parents the Court concludes that it is not in the best interest of the children to reduce the child support because of the shared custody arrangement This reduction would result in the children enjoying a lesser lifestyle when they are with Mrs Vaccari than when they are with Mr Vaccari While the use of shall in La R 9 does make it seem that the S 315 use of worksheet B is mandatory in shared custody cases the court may deviate from the child support guidelines of which La R 9 is a S 315 part when their application is not in the best interests of the children or not equitable to the parties The trial court did not abuse its discretion in determining that the use of worksheet B was not in the children best s interests This assignment of error is without merit Conflict with Prior Consent Judgments In his third assignment of error Mr Vaccari asserts that the portion of the October 3 2008 judgment which includes in the child support award an amount for repairs maintenance property taxes and insurance on the former matrimonial domicile is absolutely null because it alters the substance of two prior final judgments ithe November 8 2004 and June 6 2008 e consent judgments Those two prior judgments provided that Mrs Vaccari would continue to reside in the former matrimonial domicile that Mr Vaccari would not be entitled to rental reimbursement for her use of the former matrimonial domicile and that Mr Vaccari would continue to pay the mortgage agreedupon maintenance the outdoor man the property taxes the homeowners insurance and the flood insurance but that he will be reimbursed by Joan Y Vaccari upon partition of the community The court stated in its written reasons for judgment that when it awarded child support it considered whether or not to include maintenance 10 property taxes and insurance which were addressed in the November 8 2004 consent judgment in the expenses of the children The court concluded that the November 8 2004 consent judgment dealt only with community property matters and not with child support and that nothing in the consent judgment precluded the court from considering and ruling upon the same expenses in the context of child support Although those expenses were being paid by Mr Vaccari directly to the parties owed pursuant to the consent judgments they will be reimbursed to Mr Vaccari at the time of the partition We agree with the trial court that the prior consent judgments addressed community property matters and not child support The first consent judgment resolved pending rules for use and occupancy of the former matrimonial domicile rental reimbursement and an advance of community funds At the time of the second consent judgment Mrs Vaccari had filed a petition to nullify the first consent judgment alleging that Mr Vaccari had misrepresented his income Since Mr Vaccari will be reimbursed by Mrs Vaccari at the partition for his prior payment of these expenses we see nothing in the prior consent judgments which would preclude the trial court from including them in the child support obligation To do otherwise would deprive the children of the same standard of living when they are with Mrs Vaccari that they enjoy when living with Mr Vaccari This assignment of error is without merit Vehicle Allowance In his fourth assignment of error Mr Vaccari argues that the trial court erred in ordering him to pay a separate amount for a vehicle allowance 2 The court did not mention the June 2008 consent judgment in its reasons however the June 2008 judgment merely ratified the parties agreement contained in the earlier judgment 11 in addition to the 16 child support payment when the vehicle 00 546 allowance was already included in the 16 We agree 00 546 The October 3 2008 trial court judgment which ordered Mr Vaccari to pay 16 a month in child support states that the amount is the 00 546 amount recommended by Mr Verges in his final report of November 30 2007 In his report Mr Verges recommended that a vehicle allowance of 400 per month be included in the child support obligation retroactively and 800 per month upon replacement of the vehicle or partition of the community Emphasis added Mr Verges calculation of the children s s lifestyle for child support purposes of 195 per year 16 per 550 00 296 month included 9 per year 800 per month for vehicle 00 600 00 replacement cost However in addition to awarding the amount of child support recommended by Mr Verges which included the vehicle allowance the trial court judgment ordered Mr Vaccari to pay to Mrs Vaccari 00 500 per month retroactive to the date of filing until the partition of the community property or replacement of the former community vehicle and 00 800 per month upon partition of the community property or replacement of the vehicle whichever comes first It is clear from a review of the record that the court did not intend to award this amount for vehicle replacement cost twice As such the October 3 2008 judgment is amended to delete paragraph 2 which ordered Mr Vaccari to pay a monthly vehicle allowance in addition to the 16 monthly child support obligation 00 546 Mrs Yaccari Income s Mr Vaccari fifth assignment of error is that the trial court erred in s failing to impute any income to Mrs Vaccari for child support purposes and 3 The court increased this amount by 250 for Clothing and Grooming 00 expenses at Mrs Vaccari srequest resulting in the total of 16 00 546 12 ordering Mr Vaccari to pay 100 of the child support obligation Mr Vaccari argues that the law is clear that each parent owes his or her percentage of child support in accordance with his or her proportion of the resources and the trial court lacked discretion to order him to pay 100 of the child support obligation In awarding child support in this case the trial court accepted the recommendations of Mr Verges as to the income of the parties the net worth of the parties and the lifestyle expenses of the children when they are with Mrs Vaccari Mr Verges noted that Mrs Vaccari had a Bachelor s degree in marketing from Auburn University and estimated that she had an income potential of at least 25 per year Mrs Vaccari also had 00 000 invested funds resulting from the partition of some community stock however Mr Verges stated that she may owe some of these funds to either Mr Vaccari due to a reimbursement claim or to the bank for her portion of the funds used to purchase the stock Mr Verges calculated the children s lifestyle expenses to be 195 per year Mr Verges concluded that 00 550 considering the actual income from Mrs Vaccari investment portfolio and s her personal earnings capacity it is clear that Ms Vaccari can barely provide for her own personal needs much less those of the children or the common expenses utilities transportation etc The child support guidelines provide for imputing income for child support purposes to a spouse who is voluntarily unemployed and not mentally or physically incapacitated or caring for a child of the parties under the age of five according to that party income earning potential La R s S A 11 315 9 However the court may deviate from the guidelines where their application is not in the best interests of the children or is inequitable to the parties La R 9 In light of the gross disparity in the S 315 8 C 1 13 parties income we cannot say that the trial court abused its discretion in refusing to impute any income to Mrs Vaccari or assessing 100 of the child support obligation to Mr Vaccari This assignment of error is without merit Reduction ofHousing Expenses for Mrs Vaccari s Enjoyment Mr Vaccari sixth assignment of error concerns the trial court s s inclusion in the child support award of the entirety of the expenses for the house occupied by Mrs Vaccari and the children when they are with her without any reduction for her enjoyment where some of the expenses are irrefutably attributable to her He asks that the portion of the child support award for the following expenses be reduced by 20 as her share pest control pool service alarm monitoring maidcleaning association dues other maintenance repairs and improvements transportation costs and utilities Final child support is to be determined based on the needs of the child as well as the ability of the parents to provide support LSAC art 141 C The trial court discretion in determining final child support includes s consideration of a child standard of living as well as the child needs s s Harang v Ponder 092182 p 24 FN 6 La 1 Cir 03 App 10 26 3d So writ denied 100926 La 5 36 So 219 Children are 10 19 3d entitled to the same standard of living that they would enjoy if they lived with their father if their father financial circumstances are sufficient to s permit this When setting the amount of child support to be paid by a parent the court should strive to maintain the lifestyle of the child when possible while considering the child reasonably proven expenses and the parent s s ability to provide Id 14 Mr Vaccari argues that Mrs Vaccari was not awarded spousal support and he should not be made to pay child support to support Mrs Vaccari However it is inevitable in a case with a great disparity in income between the parties that the parent receiving the child support payment to maintain the children lifestyle will derive some benefit therefrom s The court in this case concluded that Mrs Vaccari was unable to provide for the s children needs or their common expenses While as trier of fact we might have apportioned some amount of the total child support obligation to Mrs Vaccari we cannot say that the trial court abused its discretion in finding as it did Thus we find no merit in this assignment of error Speculative Housing Allowance In his seventh assignment of error Mr Vaccari argues that the trial court erred in awarding as part of the child support award a speculative housing allowance of 4per month upon partition of the community 00 000 or sale of the former matrimonial domicile whichever occurs first In calculating child support the court considers the parties current income and expenses anticipated changes to income or expenses are matters that address themselves to future deliberation and review Graves v Graves 197 So 206 208 La 1 Cir 1967 A child support award 2d App may be modified if the circumstances of the child or of either parent materially change La C art 142 Although this court in Hunsicker v Hunsicker 385 So 347 La 1 Cir 1980 upheld the inclusion in a 2d App child support award of a future expense where the incurring of the expense was imminent and not remote and speculative that is not the case here In Hunsicker the mother of the children was moving to another state in the immediate future the house that she was to rent had been selected and the moving expenses had been ascertained Id at 348 In the instant case Mr 15 Verges noted that no housing allowance was presently necessary because Mrs Vaccari and the children are living in the former matrimonial domicile rentfree however he recommended that upon the settlement of the community or Mrs Vaccari and the children moving to a new residence the child support obligation include a 4 per month housing allowance 00 000 to pay for onehalf of the cost of a new home with a value in the range of the current home or Mr Vaccari residence s The court accepted Mr s Verges recommendation and ordered Mr Vaccari to add the 4 00 000 housing allowance to his child support obligation upon partition of the community or sale of the former matrimonial domicile whichever occurs first The inclusion of this speculative housing allowance was an abuse of discretion by the court Mrs Vaccari could choose to move to a home with a value nowhere near the value of the former matrimonial domicile or she could receive the former matrimonial domicile in the partition There is no indication in the record that her need for the housing allowance is imminent as required by this court in Hunsicker Upon the partition of the community or sale of the home Mrs Vaccari can request a housing allowance by way of a rule to modify the child support award based upon a material change in circumstances Therefore the October 3 2008 judgment is amended to remove paragraph 3 and the 4 housing allowance 00 000 from Mr Vaccari child support obligation s In Globo Child Support Award Mr Vaccari eighth assignment of error alleges that the trial court s erred in awarding an in globo child support award as opposed to a per child award since their oldest child is now out of high school and almost twenty years old 16 Mr Vaccari cites no authority for this assignment of error he simply states that under the circumstances ihis oldest child being so close to the e age of majority and going to boarding school at the time the judgment awarding child support was rendered a perchild rather than in globo award would have been appropriate The child support guidelines provide for in globo child support awards in most circumstances as explained by this court in Walden v Walden 00 2911 p 13 La 1 Cir 8 835 So App 02 14 2d 513 523 hild C support awards in Louisiana are in globo awards Two basic theories underlying the design of the schedule of basic child support obligations are that certain household expenses considered in the cost of a child support cannot s simply be divided by the number of children in the home and thus equitably stated and that a smaller percentage of total income is spent on each child as a result of the economies of scale as the number of children in a family increases Citations omitted We find no error in the trial court in globo child support award s This assignment of error has no merit s Children Major Activities Mr Vaccari next urges that the trial court erred in ordering him to pay for 100 of the children major activities in addition to the child support s award which already includes certain activities for the children He argues that the provision in paragraph 4 of the judgment that orders him to pay for 100 of major activities for the children is more double dipping and is impermissibly vague Mr Vaccari again cites no authority for his position and makes no argument other than that this provision of the judgment is vague and constitutes doubledipping Although the child support award does include an amount for the children activities based upon the cost of their s activities in prior years paragraph 4 is not duplicative it simply orders Mr IN Vaccari to pay for any major activities which were not included in the 00 546 16 child support award We find no abuse of discretion in this award We agree that the description is rather vague but decline to remand for the court to be more specific as the parties already have a remedy and can file a rule if an issue arises as to reimbursement for major activities This assignment of error is without merit CONCLUSION The October 3 2008 judgment as amended herein to remove the provisions regarding retroactivity the additional vehicle allowance and the housing allowance is affirmed Costs of this appeal are to be borne by appellant Christian Vaccari AMENDED AND AS AMENDED AFFIRMED 18 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1945 CHRISTIAN VACCARI VERSUS JOAN Y VACCARI McCLENDON J agrees in part concurs in part and dissents in part 5 J While I am concerned that the trial court denied Mrs Vaccari 2007 s request for modification of the interim support award because the trial court intended to apply any subsequent child support award retroactively to Mrs s Vaccari March 5 2004 answer the issue of the 2007 request is not before us on appeal Moreover we are constricted by the plain language of LSAR S 1 13 21 315 as 9 previously interpreted by this court in Moran v Moran 02 1562 La 1 Cir 6 858 So 518 writ denied 03 2124 La App 03 27 2d 03 7 11 857 So 502 Thus I concur with the majority on this issue 2d Further although I may have applied the guidelines under LSA R S A 315 9 regarding shared custody in determining the child support award I concur with the majority opinion given the discretion granted the trial court pursuant to LSA R 9 S 315 6 1 I also concur with the majority opinion insofar as it finds that the trial court did not abuse its discretion in declining to reduce the housing expenses for Mrs Vaccari senjoyment of the former community home I dissent to the extent that I would have considered Mrs Vaccari income s earning potential in determining the child support award as required by LSA R S A 11 315 9 despite the disparity between Mr Vaccari income and the earning s potential of Mrs Vaccari I agree with the remainder of the opinion

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