I.G. v. E.V.-G.

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August 26, 2016


Submitted April 27, 2016 Decided

Before Judges Ostrer and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-232-10.

Veres & Riordan, LLC, attorneys for appellant (Patricia L. Veres, of counsel; Amanda P. Johnston, on the briefs).

Paris P. Eliades Law Firm, LLC, attorneys for respondent (Amy F. Gjelsvik, on the brief).


In this post-judgment matrimonial matter, defendant and former wife E.V.-G. appeals from an October 7, 2014 Family Part order partially denying her requests for post-judgment relief, and from a December 23, 2014 order requiring her to pay plaintiff and former husband I.G. $8665 in attorney fees and costs. We affirm the October 7 order in part and reverse in part, and reverse and remand the $8665 fee sanction.


The parties were divorced in 2010 after a brief marriage. Their two children, G.G. (Grace) and J.G. (John), were born in 2007 and 2009.1 The November 19, 2010 supplemental judgment of divorce (SJD), embodying the parties' agreement, granted them joint legal custody of the children, and defendant primary residential custody. The SJD's parenting time schedule granted plaintiff one overnight stay during all but six weekends; one two-hour session during the week; and an additional six overnight stays per year. Each parent was granted three weeks' vacation with the children every year, upon at least thirty days' notice. The SJD also specified that defendant would take the children on vacation to South Africa "from December 13, 2010 through January 3, 2011."

The SJD set plaintiff's child support obligation at $203 per week, based on his stipulated annual income of $100,000 and defendant's imputed income of $35,000.2 The SJD also required each party to obtain $200,000 in life insurance for the children's benefit. Finally, the SJD acknowledged a home equity loan (HEL) in both parties' names on a New York City apartment. Defendant retained the apartment, but was required to place the loan solely in her name. Plaintiff was required to pay defendant $27,500 toward the debt, at a monthly rate of $250.

The divorce was quickly followed by extensive post-judgment motion practice. Because the 2014 fee sanction was premised on defendant's violation of prior court orders, we focus on the parts of those prior orders that served as the basis for the later findings of bad faith.

In May 2011, the court ordered defendant to present proof of her efforts to refinance the HEL within ten days. The court also found defendant in violation of litigant's rights for returning the children from the South Africa vacation four days late. The court noted defendant had informed plaintiff in advance she would not be back by the date specified in the SJD, and plaintiff "did not make issue of it." The order also specified the exchange point for parenting time sessions, since defendant had moved to New York City with the children and plaintiff was living in the former marital home in New Jersey. Defendant was to drop the children off at the police station nearest plaintiff's house before his parenting time, and plaintiff was to return the children to the "114th Street Precinct, New York" for pickup. This was a departure from the arrangement spelled out in the SJD, which provided that for a three-month period, pick-up and drop-off would take place in Jersey City.

The exchange point was moved again in June 2011, when the court entered an order requiring defendant to bring the children "to the Roxbury Police station at the beginning of Plaintiff's parenting time as previously Ordered by the Court." In an August 5, 2011 order, the court found defendant in violation of litigant's rights for failing to deliver the children in accordance with the SJD and prior orders. In doing so, the court rejected defendant's claim that she could not bring the children to the exchange point because she was unable to secure transportation.

Meanwhile, plaintiff sought the court's intervention to compel defendant to sign the necessary papers to place the New Jersey marital home on the market. On August 3, 2011, the court ordered defendant to sign a listing agreement within ten days. After she failed to meet this deadline, the court entered an order on August 22, 2011 granting plaintiff a power of attorney for defendant for the limited purpose of selling the house.

In September 2011, defendant accused plaintiff of sexually abusing Grace, who was four years old at the time. Defendant first filed a report of abuse with the New Jersey Department of Child Protection & Permanency (DCPP), alleging that plaintiff had sexual contact with Grace. DCPP closed its investigation into this claim in November 2011, concluding defendant's allegations were unfounded. Defendant filed a complaint in a New York Family Court asserting the same allegations, which was dismissed in May 2013 for insufficient evidence following a trial. In an extensive opinion, the New York Family Court strongly suggested defendant had made false allegations of abuse in order to interfere with plaintiff's visitation rights.

The parties returned to the New Jersey Superior Court in the fall of 2013 when plaintiff filed a motion seeking physical custody and sole legal custody of both children. In a March 2014 order, the Family Part denied the motion but permitted plaintiff to retain an expert to perform a custody and best-interest evaluation. The order required defendant to comply with any such evaluation, and warned that sanctions would issue for noncompliance. The order permitted plaintiff to visit the children at their daycare provider in New York. The order also changed the exchange point for parenting time to the Jersey City Police Department. In a May 8, 2014 consent order, the parties modified the pick-up and drop-off times, but maintained the Jersey City Police Department as the exchange point.

The fee sanction from which defendant appeals resulted from plaintiff's August 2014 motion, which sought an order finding defendant in violation of litigant's rights for (among other things): (1) failing to cooperate with the custody evaluation sought by plaintiff, (2) interfering with plaintiff's parenting time during that summer, (3) violating the SJD by unilaterally removing the children from daycare, (4) failing to pay her share of the balance on a leased Volkswagen, (5) failing to pay life insurance as required by the SJD, and (6) failing to refinance the HEL as required by the SJD.

In a certification supporting his motion, plaintiff asserted he had retained Eileen A. Kohutis, Ph.D. to perform a custody evaluation. He asserted that defendant met with Kohutis but refused to participate in the sessions unless she could record them. Plaintiff asserted that Kohutis had informed the parties that if defendant recorded the sessions, Kohutis would too. That would double the cost of the evaluation, Kohutis said, because she would then need to listen to the recording before preparing her evaluation. In a certification opposing plaintiff's motion, defendant asserted that she wanted to record the sessions to protect her interests, Kohutis never said she could not record them, and she cooperated with Kohutis's evaluation in all other respects.

The second item in plaintiff's motion concerned interference with his parenting time. He certified that defendant withheld the children the weekend of July 18-20, 2014, which was one of plaintiff's weekends under the visitation schedule established by the March 2014 order. He asserted that defendant instead delivered the children for pick-up the following weekend, when he was not scheduled to take them and was unable to do so. Plaintiff also certified that defendant prevented him from exercising one of his vacation weeks from August 2-10, 2014. Plaintiff's counsel wrote to defendant's counsel on June 13, 2014, and again on June 30, 2014, to notify defendant that plaintiff intended to go on vacation with the children on July 4-13 and August 2-10, 2014. Defendant did not respond until July 17, when she informed plaintiff that she had scheduled a vacation from August 8-17, 2014, and that she planned this trip before receiving plaintiff's June 13 notice.3

In response, defendant conceded that she did not deliver the children for the July 18-20 weekend, but asserted that plaintiff had them for three consecutive weekends. Although defendant asserted that she "explained this" to plaintiff, her certification indicates she did so after missing pick-up on July 18th, and only because plaintiff "reached out to" her. With respect to plaintiff's vacation week, defendant certified that she did not realize her and plaintiff's proposed vacations overlapped until after receiving the June 13 notice. Defendant also asserted that she suggested alternative weeks for plaintiff's vacation. The record reflects that defendant did not give plaintiff notice of her August 8-17 vacation before receiving his June 13 notice or give thirty days' advance notice.

With respect to daycare, plaintiff asserted defendant had unilaterally removed the children from their daycare provider. Plaintiff claimed this violated his right to joint legal custody, and noted that the March 2014 order permitted him to visit the children at daycare on weekdays. Defendant certified that both children had "aged out" of daycare and that Grace was in an after-school program that better met her needs, which John would soon join. Defendant asserted it disserved the children's interests to remain in daycare.

Regarding the Volkswagen lease, plaintiff certified that there was a $11,113.26 balance on the lease and defendant was liable for half that amount. Defendant acknowledged her obligation to pay half, but asserted that she could not afford to because she was working part-time and was about to lose her public assistance. As discussed below, defendant did not provide information of her current income.

Finally, plaintiff certified that defendant never obtained life insurance as required by the SJD, and never refinanced the HEL in accordance with the May 2011 order. Defendant did not respond to either claim in her opposing certification.4

Defendant filed a cross-motion seeking, among other things, an increase in child support. She certified that she was earning less than the $35,000 in annual income imputed to her in the SJD, and asserted that plaintiff earned more than the $100,000 in income attributed to him in the SJD. Defendant submitted a September 3, 2014 CIS that stated her prior year's gross earned income was $9537. She asserted that she earned $450 weekly, but did not complete the sections pertaining to present earned income and expenses and year-to-date income and unearned income. She did not append W-2s, paystubs, tax returns, or any other records to her CIS, but she did later submit her 2012 and 2013 federal tax returns.

On October 7, 2014, the court granted plaintiff's motion in part. The court found defendant in violation of litigant's rights for failing to cooperate with the custody evaluator, stating that she failed "to fully comply with Dr. Kohutis and with her requirements for the evaluation."

The court also found her in violation of litigant's rights for interfering with plaintiff's visitation from July 18-20 and August 1-10, 2014. The court rejected defendant's explanations for why she withheld the children. The court noted that defendant gave notice that her vacation plans conflicted with plaintiff's on July 17, after receiving plaintiff's June 13 and 30 letters. The court also noted defendant's "numerous violations of prior Orders and continuing interference with Plaintiff's parenting time."

The court also found defendant in violation of litigant's rights for removing the children from daycare. The court reasoned that, because the parties share joint legal custody, she may not "unilaterally move the children from their daycare provider." In addition, the court found defendant in violation of litigant's rights for failing to pay her share of the Volkswagen lease and failing to obtain life insurance.5 Finally, the court found defendant in violation of litigant's rights for failing to refinance the HEL so that it is solely in her name. The court ordered defendant to pay plaintiff attorney fees as a sanction.

Turning to defendant's cross-motion, the court denied her request to increase child support on the ground that she had not made a prima facie showing of changed circumstances. The court also noted that defendant had not included the CIS used to calculate the initial child support obligation in the SJD. The court also denied defendant's request to compel plaintiff to pay a proportionate share of camp and afterschool expenses, stating that plaintiff already paid "his portion" of "work-related child care" and the SJD did not require him to pay camp expenses in excess of his child support payment. Finally, the court denied defendant's request to move the exchange point to "the New York City 114th police station" and ordered the parties to continue meeting at the Jersey City Police Department, unless they could agree to a different location.

Plaintiff's counsel subsequently submitted a certification of services, which stated she had billed 31.4 hours in connection with plaintiff's motion, defendant's cross-motion, and plaintiff's reply. At an hourly rate of $275, this yielded $8635 in attorney fees. Her certification included detailed time entries describing work performed between June 2 and October 29, 2014 on plaintiff's motion and defendant's cross-motion. Her certification also requested a $30 "filing fee" dated August 12, 2012. Defendant filed objections to the fee application, asserting that certain time entries were unrelated to the motion and cross-motion and that she was unable to pay the requested $8665 in fees and costs.

On December 23, 2014, the court granted the fee application and ordered defendant to pay plaintiff $8665 in fees and costs. The court applied the Rule 5:3-5(c) factors, stressing defendant's "bad faith throughout the entire course of this matter," as evidenced by her numerous violations of the SJD and court orders. The court addressed defendant's claim that she was not able to pay $8665, but noted that the parties' relative economic positions are less important where one party has acted in bad faith, citing Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). In that regard, the court noted that, in addition to defendant's non-compliance with court orders, she had "made unfounded allegations" that plaintiff sexually abused one of the children. The court found that "almost the entirety" of plaintiff's fees "were incurred seeking to enforce prior Orders." See R. 5:3-5(c)(8).

With respect to the financial circumstances of the parties, R. 5:3-5(c)(1), the court stated that it had "no basis to determine Defendant's income," since she had not submitted a current CIS and her September 2014 CIS omitted any evidence of her current income. The court acknowledged that her September 2014 CIS claimed she earned $9537 in 2013, but noted she had not provided proof of her 2013 income. Although plaintiff had also failed to submit a current or prior CIS, the court noted he had provided paystubs from December 2013 August 2014, which reflected year-to-date earnings of $77,539.14 as of August 31, 2014. His attorney's certification of services asserted that plaintiff earned $126,220 in 2013 and was projected to earn $118,000 in 2014.

In deciding to award $8635 in fees, the court calculated the lodestar figure, "which equals the number of hours reasonably expended multiplied by a reasonable hourly rate." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012). The court found that plaintiff's attorney's hourly rate of $275 was reasonable, and that the total amounts incurred "were reasonable and necessary, due to Defendant's persistent bad faith."

Defendant raises the following points on appeal



The court abused its discretion by finding the defendant in violation of litigant's rights and awarding counsel fees given that she did not willfully ignore the court orders.

The court abused its discretion by failing to compel the plaintiff to abide by prior court orders and failing to find the plaintiff in violation of litigant's rights.

The court abused its discretion by not considering what was in the children's best interest when it failed to change the location of the exchange for the plaintiff's weekend parenting time.


We defer to the family court's factual findings if "supported by adequate, substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super. 431, 451 (App. Div. 2014) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). However, we owe no deference to factfindings that are not based on witness testimony or credibility findings. Yueh, supra, 329 N.J. Super. at 461. We review de novo the court's legal conclusions, including its construction of the SJD. Barr v. Barr, 418 N.J. Super. 18, 31 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).


We begin with the fee sanction, which was based on the finding that defendant was in violation of litigant's rights.

We review the fee sanction for an abuse of discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). Under Rule 5:3-5(c), a trial court has discretion to award counsel fees in matrimonial actions. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd, 208 N.J. 409 (2011). "Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing." J.E.V., supra, 426 N.J. Super. at 493 (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)). Success in the litigation, while a factor, is not "a prerequisite for an award of counsel fees." Id. at 492. A party requesting fees must have acted in good faith in the litigation and have a financial need, and the party paying fees must be able to pay. Id. at 493. To assess financial need and ability to pay, the court requires current financial information. See Roberts v. Roberts, 388 N.J. Super. 442, 453 (Ch. Div. 2006).

Where one party acts in bad faith, "the relative economic position of the parties has little relevance because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh, supra, 329 N.J. Super. at 461 (internal quotation marks omitted). Bad faith may consist of a party's "constant disregard" of court orders, id. at 460; or the "intentional misrepresentation of facts," Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch. Div. 1992).

Defendant challenges the finding that she willfully violated court orders. We analyze each finding of noncompliance with a court-ordered obligation and conclude that, while several of these findings are supported by adequate record evidence, two of them are not.

Beginning with the custody evaluation, the court erred in finding defendant in violation of litigant's rights. Defendant asserts she fully cooperated with Kohutis's evaluation, and sought to record the sessions only to protect her interests. The record reflects that defendant attended one appointment with Kohutis and asked that future appointments be recorded, but cooperated with Kohutis's process in all other respects. The record also shows that the evaluation was put on hold at plaintiff's attorney's request, so that she could seek a court order barring defendant from recording the sessions.

Moreover, defendant was entitled to record the sessions, such that her insistence on doing so cannot be characterized as a refusal to cooperate or an act of bad faith. A party compelled to submit to a psychological evaluation is entitled to record the session. B.D. v. Carley, 307 N.J. Super. 259, 262 (App. Div. 1998); see also Koch v. Koch, 424 N.J. Super. 542, 553 (Ch. Div. 2011) (holding that a parent "has the right to unobtrusively record his or her own interview during a custody evaluation"). The psychologist is not entitled "to dictate the terms under which the examination shall be held." B.D., supra, 307 N.J. Super. at 262.

We also find insufficient support for the finding that defendant violated litigant's rights by removing the children from daycare. As the parent of primary residential custody, defendant has responsibility for "minor day-to-day decisions," which include "arranging alternative care, i.e., babysitting or daycare." Pascale v. Pascale, 140 N.J. 583, 596, 598-99 (1995) (internal quotation marks and citations omitted). Joint legal custody, by contrast, involves the "authority and responsibility for making major decisions regarding the child's welfare." Id. at 596 (internal quotation marks and citation omitted).

Notwithstanding defendant's general authority over childcare arrangements, her decision to remove the children from daycare may justify a modification of plaintiff's parenting time, if the decision affected prior parenting time arrangements. See C. Madison v. W. Davis, 438 N.J. Super. 20, 42-43 (Ch. Div. 2014) (allowing non-residential parent to take a child out of pre-school chosen by residential parent for extra parenting time). Further, defendant may not exercise this authority solely for the purpose of interfering with plaintiff's visitation. Here, the court did not find that defendant's decision was motivated by a desire to restrict plaintiff's access to the children, but concluded simply that the decision infringed on plaintiff's legal custody. Absent a finding that defendant exercised her residential custody authority for ill motives, her action did not support a finding of bad faith. Because defendant's decision was within the scope of her residential custody authority, we also reverse that part of the October 7 order requiring the children to return to their previous daycare provider.

Next, we uphold the finding that defendant interfered with plaintiff's parenting time in the summer of 2014. With respect to July 18-20, 2014, defendant does not dispute that this was plaintiff's scheduled weekend, but contends she was justified in withholding the children, so that plaintiff would not have them for three weekends in a row. However, there was simply no authority in the SJD or subsequent orders to treat the July 18-20 weekend differently simply because of plaintiff's preceding vacation time. Regarding plaintiff's August 2-10, 2014 vacation, he complied with the SJD by giving defendant notice on June 13, 2014 of his planned trip. Defendant did not object until July 17, 2014, and she did not give thirty days' notice of her planned August vacation. Thus, there was adequate record support for the court's finding that defendant interfered with plaintiff's vacation time and that her non-compliance with the SJD and subsequent orders was in bad faith.

We also uphold the finding that defendant failed to refinance the HEL, since she offered no proof to support her claim that she applied for refinancing but was rejected due to poor credit. The court previously ordered her to produce evidence of such efforts. Defendant's continuing unexcused failure to apply and to produce documentation of such an application supports the court's finding of bad faith.

As noted, defendant does not challenge the findings that she failed to meet her obligations under the SJD to pay her share of the balance on the Volkswagen lease and obtain the requisite amount of life insurance coverage. The record does not contain proof of any efforts to satisfy either requirement.

Finally, we discern no abuse of discretion in the court's calculation of the lodestar figure. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). On the other hand, the $30 filing fee plaintiff paid in August 2012 clearly had no relation to the enforcement motion he filed in August 2014, and thus should not have been included in the award. On remand, this amount is to be excluded from any sanction.

In sum, the trial court's finding that defendant acted in bad faith is supported by her interference with plaintiff's parenting time, and her failures to document an application to refinance the HEL, pay her share of the balance on the Volkswagen lease, and obtain life insurance.

However, as there is insufficient evidence that defendant acted in bad faith by failing to cooperate with the custody evaluator or removing the children from daycare, we reverse and remand for consideration of whether sanctions are still warranted, and, if so, to recalculate the fee award. In deciding whether to order defendant to pay attorney fees, the court should focus on the "reasonableness and good faith" and "results obtained" factors, see R. 5:3-5(c)(3), (7), in light of our reversal of some of the findings of bad faith.


We turn next to the denial of defendant's motion to increase child support, which we review for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Defendant contends she made a prima facie showing of changed circumstances based on her reduced income and increased cost of living, as well as the increase in plaintiff's income.

A party seeking to modify child support must make a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). For the court to evaluate defendant's financial circumstances, she was required to submit a current and prior CIS. R. 5:5-4(a) (requiring the movant to append copies of the current CIS and the CIS filed in connection with the order "sought to be modified"). This rule is not a mere technicality, as a current CIS is essential for the court "to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). "As a necessary and preliminary step to meeting [the burden of showing changed circumstances], a movant is required to submit both a current and a prior CIS." Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010) (citing R. 5:5-4(a)).

As noted, defendant did not provide the CIS that was used to calculate the original amount of support set by the SJD. Further, her September 2014 CIS was incomplete, as she did not append W-2s, paystubs, tax returns, or any other records of her current income. Without the prior CIS or a complete current CIS, the court lacked the "complete picture" of the parties' finances needed to evaluate defendant's claim of changed circumstances. Gulya, supra, 251 N.J. Super. at 253. While the apparent increase in plaintiff's income since the SJD may establish changed circumstances, defendant must supply the requisite financial information so that the court may make that determination. As she failed to do so, the court did not abuse its discretion in denying her modification motion.6

We turn to the denial of defendant's request for reimbursement of "day camp" and after-school expenses. Defendant claims she submitted proof of summer camp and babysitting expenses she incurred that plaintiff never reimbursed. The SJD requires the parties to share "work-related daycare costs" in proportion to their incomes, and sets their proportionate shares at seventy-four percent for plaintiff and twenty-six percent for defendant. Apparently, when defendant requested that plaintiff reimburse her for the expenses at issue, he initially offered to pay only half (as he claimed he was already paying for full-time daycare), and ultimately refused to pay any portion.

It is unclear what expenses defendant incurred, since the record does not include competent evidence of any payments made. See R. 2:6-1(a)(1) (stating the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues. . ."). The only evidence of these expenses in defendant's appendix is a document entitled, "Holly's Babysitting Services," which contains a table with dates, hours, and a price; and copies of three handwritten receipts that refer vaguely to amounts paid for "day camp." Defendant's certification refers to these papers as "receipts for day care already paid by me and unpaid break down of a bill owed for babysitting services." Other than this general description, however, her certification does not attest to the fact that she made a specific payment to a specific person. The record does not include any bank statements, credit card receipts or statements, or other third-party records evidencing any payments. On this record, we are unable to ascertain whether defendant made any daycare-related payments, let alone conclude that plaintiff had an obligation to reimburse these expenses. Accordingly, there is an insufficient basis to reverse the court's denial of this request.

Finally, defendant challenges the denial of her request to move the exchange point from Jersey City to New York City. We discern no error here, as she signed the May 2014 consent order affirming that the parties will meet at Jersey City, and has demonstrated no change in circumstances since then. As the October 7 order noted, the parties are free to reach an agreement themselves to meet at a more convenient location.

To the extent not addressed, defendant's remaining arguments regarding her cross-motion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed as to the denial of defendant's cross-motion; affirmed in part and reversed and remanded in part as to the order finding defendant in violation of litigant's rights and imposing fees. We do not retain jurisdiction.

1 We use pseudonyms for the children.

2 Although the guidelines worksheet used to calculate child support is attached to the SJD, the record does not include the CISs the parties filed in connection with the SJD.

3 In a June 26, 2014 letter, defendant responded to other issues raised in the June 13 letter, but did not address plaintiff's planned vacation with the children.

4 The narrative portion of the certification in the record ends abruptly mid-sentence. At oral argument before the trial court, counsel asserted that defendant was unable to refinance the loan due to issues with her credit. The judge noted that no proof of her efforts had been submitted.

5 Defendant does not challenge these two findings on appeal.

6 Defendant also argues that she was entitled to financial discovery and modification because she had not received biennial cost-of-living adjustments (COLAs) pursuant to Rule 5:6B. Although she has a right to COLAs that is not dependent on child support administered through probation, that right is distinct from the right to seek modification of support based on changed circumstances.

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