Madison v. Madison

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE THE MARRIAGE OF: SUSAN MARY MADISON, Petitioner/Appellee, v. MARK ALAN MADISON, Respondent/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-17-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0623 DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN2008-050521 The Honorable Alfred M. Fenzel, Judge AFFIRMED Jaburg & Wilk, P.C. By Kathi Mann Sandweiss Roger L. Cohen Attorneys for Appellee Deloughery & Ruotolo, P.C. By Fred Ruotolo Attorney for Appellant B A R K E R, Judge Phoenix Scottsdale ¶1 Mark Madison ( Husband ) appeals from portions of the divorce decree ( Wife ). dissolving his marriage to Susan Madison For the following reasons, we affirm. Facts and Procedural History 1 ¶2 Husband and Wife were married on November 6, 1993, and had no children. On November 24, 2007, Wife left the marital residence because she felt Husband was out of control. Wife filed a petition for dissolution of marriage without children on March 7, 2008. Wife felt harassed and consequently obtained a new car, address, bank account, and a new parking spot at her medical practice. Husband still sent wife hundreds of e-mails, text messages and phone calls, and Wife requested a protective order from the court, which was served on April 24, 2008. On November 24, 2008, the court found Husband had committed an act of domestic violence within the last year and continued the protective order in full force and effect. ¶3 Wife is self-employed as a physician, specializing in sleep disorders, and Husband is self-employed as a photographer. Wife completed all of her education before the marriage and contributed all of her earnings during her residency, fellowship training, Wife s and her salary was medical the career chief source 1 to of the marital income community. throughout the Additional pertinent facts will be introduced as necessary in the context of particular arguments. 2 parties marriage. At the time of trial, Wife was forty-nine and Husband was fifty-two. ¶4 Husband filed a motion to continue the trial on January 27, 2009, alleging late disclosure of Wife s financial documents. The family court denied that motion and trial was held on February 2 and 6, 2009. Wife agreed that Husband was entitled to some spousal maintenance. The court awarded Husband $1500 in spousal maintenance for twelve months. ¶5 The family court divided the marital assets and debts and awarded Wife the Scottsdale residence, which it found had no equity. in Husband received the California property with $78,000 equity. grandmother Wife s was found received one-half. inheritance to be of community $306,496.27 property from and her Husband Wife was awarded her medical practice, and Husband was awarded his photography business and all related equipment. The family court ordered Husband and Wife to split any debt related to the lease of Husband s photography studio. Each party was ordered to bear their own attorneys fees and costs. ¶6 Husband subsequently filed denied. a motion for The trial court dissolution on August 13, 2009. of appeal. new trial, entered a which decree was of Husband timely filed a notice We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). 3 Discussion 1. Motion to Continue ¶7 Husband contends he was unduly prejudiced by the family court s denial of his motion to continue the trial date. The family court did not set forth its reasons for denying the motion in its minute entry, and Husband has not provided us with a transcript of that hearing. We review the grant or denial of a motion to continue for an abuse of discretion. In re Maricopa County Superior Court No. MH2003-000240, 206 Ariz. 367, 369, ¶ 10, 78 P.3d 1088, 1090 (App. 2003). ¶8 Husband argued in his motion to continue that because wife did not give access to her financial information (1099s) until January 26, 2009 at 4:00 p.m., Husband did not have an opportunity to depose appeal, he alleges Wife that regarding because he this had information. insufficient On time to review the financial documents his own exhibits were delivered late to the family court. In addition, Husband asserts that if he had been able to evaluate the records in more detail he could have illustrated to the family court justification of a higher and longer spousal maintenance award, relocation fees, and attorneys fees and costs. ¶9 that Maricopa County Local Rule of Practice 3.4 provides [w]hen continuance an shall action be has granted been set except 4 for upon a trial, finding no of trial good cause. The February September 26, 2008. be completed February 2 financial and 2, 2009 trial date was set on Husband knew that all depositions needed to all trial. exhibits By documentation April to prepared 30, the in 2008, advance Wife certified had public of the provided accountant jointly retained by the parties to prepare evaluation reports of Wife s medical practice and Husband s photography business. Husband does not contend that he did not have access to this documentation, which included Wife s federal income tax returns for tax years 2005 through an amended 2007 return, income documentation and historical income statements from 2003 through 2007, cash flow statements from 2003 through 2007, and any other documentation used by the accountant in his valuation of Wife s medical practice. documentation Wife. All would have of this proved financial useful in information the and deposition of This court has examined the 1099s provided on January 26 and fails to see how a deposition could not have occurred prior to receipt of these forms or why this caused Husband s exhibits to be filed late. with this Husband has also failed to demonstrate how, financial documentation available, the 1099s would have made any difference in illustrating to the family court justification of more spousal maintenance or relocation costs. ¶10 Accordingly, we cannot find that the family court abused its discretion in denying Husband s motion to continue. 5 2. Lost Exhibits ¶11 family Husband asserts that he was unduly prejudiced by the court staff s loss of his proposed exhibits. The exhibits were delivered on January 28, 2009 at 8:07 a.m., the day after they were due. No mention was made of the exhibits until the end of the first day of trial on February 2. time, the following dialogue took place: [HUSBAND S COUNSEL]: And I m sorry, we d move to reconsider the exclusion of Husband s exhibits. THE COURT: At this point I haven t excluded anything. [HUSBAND S COUNSEL]: Oh, okay. [HUSBAND S COUNSEL]: Yeah, he s not -- we're good. THE COURT: At this point they re there. [HUSBAND S COUNSEL]: For some reason weren t listed on the exhibit list. they THE COURT: All right. I think they were just filed this morning. I don t think there was time -[WIFE S COUNSEL]: They didn t get them down here -- they should have had them this morning. THE COURT: I don t think any of the exhibits that are -[WIFE S here. COUNSEL]: Your documents aren t [HUSBAND S COUNSEL]: The judge had them on Wednesday morning. 6 At that [WIFE S COUNSEL]: Then they have just -- he was not aware of them. THE COURT: We ll deal with that We ll see what happens with it. On February 6, before Husband took the Friday. stand, the discussion took place regarding the exhibits: [HUSBAND S COUNSEL]: One other preliminary matter just for the record. Hawkins EZ Messenger indicates that the exhibits were delivered at 8:06 or 8:07 something, the morning after the exhibits were due, and that would have been last Thursday. And -THE COURT: them. Okay. My staff s looking for [HUSBAND S COUNSEL]: Okay. THE COURT: What I have is what I have. [HUSBAND S COUNSEL]: Okay. THE COURT: All right. [WIFE S COUNSEL]: Are we -- Your Honor, are we going to address if they try and introduce individual exhibits, are we going to address each one individually because I m going to make the same objection on each one. THE COURT: I think we re going to -[WIFE S COUNSEL]: So I don t know if we want to do that now or not. THE COURT: I think we re going to cross that bridge when we get to it. All right. Because I don t even know -- right now there s no exhibits in front of me. I don t have them. 7 following ¶12 Husband never without his exhibits. objected to the trial going forward In Husband s motion for new trial he raised the issue as prejudicial error. Errors not raised in the trial court cannot be raised for the first time on appeal. Van Dever v. Sears, Roebuck & Co., 129 Ariz. 150, 151-52, 629 P.2d 566, 567-68 (App. 1981). [P]ost-trial objection is too late to preserve on appeal an issue which the trial court has not had an effective opportunity to rule upon at trial. Id. at 152, 629 P.2d at 568. ¶13 Regardless, prejudiced. we find that Husband was not unduly The evidence shows that Husband offered and had admitted at least one exhibit and possibly two more exhibits on the first day of trial. The court allowed Husband s attorney to enter exhibit number three during the accountant s testimony, over objection by Wife s counsel, despite its being late and there being no disclosure. The court made it clear that it had not excluded anything and that it would deal with the exhibits on an individual basis. Despite this attitude of leniency, Husband did not offer another set of exhibits to the court or attempt to admit any other exhibits during testimony. In his opening brief Husband states that [c]ounsel was not prepared with an additional set of exhibits to use at trial[] because counsel was unprepared for the possibility that the court staff would misplace an approximately eight inch stack of documents. 8 Considering that Husband had a full three and a half days in between the first and second days of trial and knew at the end of the first day that there was a mix-up with the exhibits, there is no prejudicial error. 3. Spousal Maintenance ¶14 Husband appeals the maintenance awarded to him. amount and duration of spousal The trial judge is in the best position to determine a reasonable amount and the duration of spousal maintenance, and we will not interfere absent an abuse of discretion. Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 9, 160 P.3d 231, 233 (App. 2007); In re Marriage of Hinkston, 133 Ariz. 592, 593, 653 P.2d 49, 50 (App. 1982). We view the evidence in the light most favorable to the superior court order and will affirm the judgment support it. ¶15 if there is any reasonable evidence to Cullum, 215 Ariz. at 354, ¶ 9, 160 P.3d at 233. In order for the court to award spousal maintenance the requirements of A.R.S. § 25-319(A) must be met during the dissolution hearing. In re Marriage of Hinkston, 133 Ariz. at 594, 653 P.2d at 51. Wife admits that Husband was entitled to some spousal entitled to maintenance. some Her maintenance agreement obviates the that need Husband to is consider whether he qualifies for such support under § 25-319(A) because his eligibility is not at issue. 9 ¶16 In reviewing the amount and duration of the award of spousal maintenance we determine whether the trial court properly considered the factors listed in A.R.S. § 25-319(B) (2007). 2 Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 2 Pursuant to § 25-319(B), factors properly considered by the court include: 1. The standard of living established during the marriage. 2. The duration of the marriage. 3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance. 4. The ability of the spouse from whom maintenance is sought to meet that spouse s needs while meeting those of the spouse seeking maintenance. 5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market. 6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse. 7. The extent to which the spouse seeking maintenance has reduced that spouse s income or career opportunities for the benefit of the other spouse. 8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children. 9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse s ability to meet that spouse s own needs independently. 10 (App. 1984). Although the court must consider all the statutory factors, Leathers v. Leathers, 216 Ariz. 374, 377, ¶ 10, 166 P.3d 929, 932 (App. 2007), it is required to apply only those factors relevant to presented evidence. the case and on which the parties have Cullum, 215 Ariz. at 355, ¶ 15, 160 P.3d at 234 (citation omitted); Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993). Here, the family court considered regarding factors and set presented. made forth detailed in § findings 25-319(B) on which the relevant evidence was Further, we presume the trial court fully considered 10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available. 11. Excessive destruction, disposition of other property or abnormal expenditures, concealment or fraudulent community, joint tenancy and held in common. 12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved. 13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim. A.R.S. § 25-319(B). 11 all evidence prior to issuing its decision. Fuentes v. Fuentes, 209 Ariz. 51, 55, ¶ 18, 97 P.3d 876, 880 (App. 2004). ¶17 his Husband argues the family court failed to recognize financial needs and his limited record, however, shows otherwise. court delineated spousal its thoughts maintenance. The on income potential. The At the end of trial, the the family factors court considered found the for parties standard of living was modest; did not think either party had aided the earning ability, income, or career opportunities of the other party; there were no education costs for mutual children; and the marital property was apportioned to meet that spouse s own needs independently, estimating a $600 benefit to Husband a month in receiving the California home. court also Husband considered with that respect if to the the Court trust rules fund The family in favor [from of Wife s grandmother], then he will be getting approximately a little less than $80,000 of that trust money. Time necessary to acquire sufficient education and training was considered a moot issue by the court. The court determined that Husband had a trade that would allow him to be self-employed or employed by someone else. ¶18 The determination light of the family based court upon relevant heard substantial statutory 12 evidence and supporting factors. made a evidence in Likewise, after reviewing the record and considering the § 25-319(B) factors, we cannot say the family court erred in the amount and duration of spousal maintenance awarded to Husband. The parties had a modest standard of living and no children during their fourteenyear marriage. They ate out and never took extravagant vacations. travelled infrequently and Husband and Wife did most of their own maintenance on the houses, and Husband described them as the Beverly Hillbillies of the neighborhood. Both parties entered the marriage already working in their chosen professions and nothing has prevented them from working on their careers. There is no evidence that either party contributed substantially to the success of the other s business beyond the support and various daily tasks that one does in a marriage relationship. ¶19 Furthermore, before marrying Wife Husband, and completed he towards the cost of her education. to establish Wife s medical did all not of her education contribute anything No community funds were used practice. The certified public accountant hired by both parties testified that Wife s practice was not a lucrative specialty and he was surprised at how low the compensation level actually was. Under his analysis, the proper amount of income attributable to Wife for purposes of calculating spousal maintenance was $145,000. Using the historical cost of the assets in the photography business with book value and accelerated depreciation, the accountant valued 13 the photography business at $22,817. Although Husband argued the value of his business was less, Husband s late and nondisclosure of the assets made it impossible for the accountant to give a definitive opinion. Husband testified that his photography business in California had been profitable. ¶20 After their separation, Wife did not receive any of the rental income from the Riverside property, but she continued to make mortgage payments on the Scottsdale home even though only Husband was living there. Wife also paid $2200 in rent because she was not living at the Scottsdale home. She received deliveries of envelopes from Husband at her medical practice that were full of community bills that she paid. ¶21 The principal objective of spousal maintenance is a transition toward independence. Rainwater, 177 Ariz. at 503, 869 P.2d at 179; see also Gutierrez v. Gutierrez, 193 Ariz. 343, 349, ¶ 24, 972 P.2d 676, 682 (App. 1998) (holding one purpose of spousal maintenance is to aid one s ex-spouse for a limited time period while he or she achieves financial independence (emphasis added)). Husband did not demonstrate an impaired or disabled earning capacity beyond his own admitted disinterest in improving his options through further education or training and defeatist attitude toward the possibility of obtaining work. He expressed no interest in going back to school stating that he did not do well in school and that school s very tough for 14 me. Husband agreed that he could make at least $16.97 per hour, but expressed discouragement about the job market stated that he can t get a job doing anything. and Everybody s losing their jobs, you look at websites and the TV everyday, there s -- everybody s laying off. . . . nobody s working. had already searching received an online. photography offer When studio he for asked stated $8 if it per he hour despite could always open takes at He only another least ten years and that it would be [p]retty hard at 52 years old. Husband s lack of motivation to become self-sufficient is not a satisfactory reason to find that the amount and duration of the family court s award of spousal maintenance is an abuse of discretion. ¶22 decision, Because we substantial affirm the evidence amount and supports duration the court s the spousal of maintenance award. 4. Value of the Scottsdale Marital Residence ¶23 Husband speculative costs argues of that sale Scottsdale marital residence. in the court determining erred the in value using of the The division of marital property is within the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion. Gutierrez, 193 Ariz. at 346, ¶ 5, 972 P.2d at 679; see also Wayt v. Wayt, 123 Ariz. 444, 446, 600 P.2d 748, 750 (1979). 15 An abuse of discretion may occur when a trial court commits an error of law in the process of exercising its discretion. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005). ¶24 The Scottsdale home was encumbered by liens in the aggregate amount of approximately $836,000. A licensed Arizona realtor be testified that the house $900,000 and about $940,000. should priced between The family court determined that the home had no equity because if the house sold for $900,000 and 7% went to closing costs and the realtor s commission then that leaves a net of $837,000. ¶25 In the absence of evidence that a sale is likely to occur in the near future, it is speculative to allow a deduction of the costs of a hypothetical sale from the share of the equity awarded to the spouse not receiving the property. Id. at ¶ 6. If the anticipated costs are not expected to be incurred in the near future then it is generally [] inequitable to reduce one party s share of the community property. ¶26 as Id. Here, the realtor testified that he had been selected the realtor testified that to she [Husband] can t Throughout the sell the wanted afford trial it the [Scottsdale] the to house be awarded sold, Scottsdale residence. so home to that was her Wife because leaves discussed connection with what it would take to sell the house. me. in We need not decide whether, under an abuse of discretion standard, this 16 provides reasonable evidence that a sale was likely to occur in the near future. imminently, as Even Husband if a sale contends, was the not likely realtor s to occur testimony at trial supports the family court s determination that the house has no equity. The realtor gave the following testimony: Q. Let s assume that Husband remains in the Scottsdale residence and not [sic] renovations whatsoever are made to the house, meaning it goes on the market as is. Should that be the case, is it likely that the house would be sold for a price that might not be sufficient to repay the debt secured by the house? A. Quite likely. Q. Okay. A. Very, very likely. ¶27 Based on the foregoing testimony, the family court did not abuse its discretion in finding that the Scottsdale home did not have any equity. Therefore, there is no error on this ground. 5. Moving Expenses ¶28 Husband claims he is entitled to moving expenses to relocate to California. He asserts that the failure of the trial court to address this issue was an error and an abuse of discretion. At the beginning of trial, Husband asked the court if we can discuss at a different time how he s going to fund that move. That is an issue. again. the At end of trial The issue was never brought up the 17 court asked if there was [a]nything else, but Husband did not say anything or raise the issue of relocation costs. ¶29 On appeal, Husband cites no relevant authority, legal theory, or justification as required by Arizona Rule of Civil Appellate Procedure 13(a)(6). issue. Thus, we do not consider this See State Farm Mutual Automobile Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990). 6. $60,000 delivered to Wife ¶30 Husband asserts that the court s failure to make reference to the $60,000 he gave to Wife in a brown paper bag in January requires of 2008 the was family error under court to A.R.S. divide § 25-318(A), which the community, joint tenancy and other property held in common equitably, though not necessarily in kind. Wife separated, A.R.S. § 25-318(A). Husband appeared at After Husband and Wife s medical practice uninvited and handed her a brown bag and told her don t let it out of your sight because there s $60,000 in cash in there. ¶31 Wife gave substantial testimony that Husband controlled the money in their marriage, including the money from her medical practice. Husband confirmed this in his testimony. Husband substantially dealt with and deposited the income from the medical practice during the marriage. Husband had been putting money in a slush fund and told Wife there was well 18 over $70,000. Wife did not know where the fund was or the source of the money. After they separated, Wife would receive deliveries of envelopes that were full of bills that she paid. Wife testified that she spent the $60,000 on the two mortgages on the Scottsdale home, the Riverside house and truck payments, the state and federal tax last year, the property taxes on the two houses, the utilities for the Arizona [] house that [Husband s] living in, HOA fees, well accounted for, it s more than 60,000. ¶32 Accordingly, because there was substantial testimony that the money was used for community expenses and that there was nothing left for the trial court to divide or distribute, we do not find that it was error for the family court to fail to award the $60,000. 7. Motion for New Trial ¶33 Husband argues the family court erred when it denied his motion for new trial. Trial courts have broad discretion in their decision to grant or deny a motion for new trial, and absent an abuse of that discretion we will not overturn trial court decisions. Pullen v. Pullen, 223 Ariz. 293, 295, ¶ 10, 222 P.3d 909, 911 (App. 2009) (citation omitted). Husband holds the burden to show the trial court abused its discretion. Id. Under Arizona Rule of Family Law Procedure 83(a), a party may be entitled to a new trial on the grounds of the prevailing party s 19 misconduct, erroneously admitted evidence, new evidence, or a judgment not justified by the evidence. ¶34 The family court did not state a reason for the denial of Husband s motion for new trial. Because the same issues in the motion for new trial are those raised on appeal, Husband incorporates his arguments on appeal as grounds to appeal the court s denial addressed rulings each we of his of those find no motion for new trial. As arguments and affirmed the abuse of discretion in the we have court s denial of Husband s motion for new trial. 8. Attorneys Fees ¶35 Husband contends the family court abused its discretion in failing to award him some legal fees and costs pursuant to A.R.S. § 25-324(A) (Supp. 2009). has discretion under this statute to The family court order one party to compensate the other for costs and expenses after considering the financial resources of both parties and the reasonableness of the positions proceedings. attorneys fees. each A.R.S. § party has 25-324(A). Id. § 25-324(B). taken throughout Expenses may the include We review the trial court s ruling on attorneys fees for an abuse of discretion. In re Marriage of Robinson & Thiel, 201 Ariz. 328, 335, ¶ 20, 35 P.3d 89, 96 (App. 2001). 20 ¶36 It is an abuse of discretion to deny attorneys fees to the party who has substantially fewer resources, unless those resources are clearly ample to pay the fees. See Rowe v. Rowe, 154 Ariz. 616, 622, 744 P.2d 717, 723 (App. 1987). found an abuse of discretion where there disparity in the income of the parties. is We have great financial In Burnette v. Bender, 184 Ariz. 301, 306, 908 P.2d 1086, 1091 (App. 1995), we found an abuse of discretion where the husband s income was three times that of the wife s and the husband had far more financial resources. ¶37 However, we have also held that it is not an abuse of discretion resources to an deny the party award of fees with less income where that party assets to pay his or her own fees. and has financial sufficient In re Marriage of Robinson & Thiel, 201 Ariz. at 335, ¶¶ 21-22, 35 P.3d at 96. Here, other than arguing that the disparity in income and the late delivery of Wife s financial information supports an award of his attorneys fees, Husband has not directed us to evidence that he is unable to pay his attorneys fees. See In re Marriage of Williams, 219 Ariz. 546, 550, ¶ 15, 200 P.3d 1043, 1047 (App. 2008) (in considering financial resources, the court look[s] to a number of factors, none of which alone is dispositive ). The family set forth court in § here stated 25-324, but that it considered did not elaborate 21 the factors further on its reasoning for denying husband attorneys fees. Nevertheless, the record supports the court s decision in not awarding Husband his fees and costs. The court found that Wife s inheritance from her grandmother had been comingled and had become community property and that Husband was entitled to one-half of the amount therein. Husband received approximately $80,000 from this addition, asset. In Husband received the California property, which had $78,000 in equity and provides Husband with rental income of more than $600 a month. Because Husband has sufficient assets to pay his own attorneys fees, we cannot say the court abused its discretion in denying Husband s request for fees. See In re Marriage of Robinson & Thiel, 201 Ariz. at 335, ¶¶ 21-22, 35 P.3d at 96. 22 Conclusion ¶38 For the court s ruling. foregoing reasons, we affirm we deny both requests. appeal Wife, upon as the compliance In our discretion, Each party is to bear his or her own attorneys fees on appeal. award family Both parties request an award of attorneys fees on appeal pursuant to A.R.S. § 25-324. we the Pursuant to A.R.S. § 12-341 (2003), successful with party Arizona Rule on of appeal, Civil costs on Appellate Procedure 21. /s/ _________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ _________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Judge 23

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