Stephens Squibs’ – 2007

Alimony:

Coniglio v. Coniglio, 969 So. 2d 579 (Fla. 4th DCA 2007). Error to award minor or adult child expenses as alimony.

Jaffy v Jaffy, 965 So. 2d 825 (Fla. 4th DCA 2007). Rehearing denied. Strong dissent discussing that 10 years is grey area for permanent alimony presumption.

Geoghegan v Geoghegan, 969 So. 2d 482 (Fla. 5th DCA 2007). Court reversed for inadequate findings on Husband’s income and Wife’s needs. Good discussion on stock options.

Blakmon v Blakmon, 969 So. 2d 426 (Fla. 1st DCA 2007). Reversible error to include provision automatically increasing alimony when child support ends absent extenuating circumstances.

Levine v Levine, 960 So. 2d 858 (Fla. 4th DCA 2007) Error to award $23,000/month in permanent alimony which included children’s needs (duplicative) and unnecessary expenses.

Watrous v Watrous, 961 So. 2d 1121 (Fla. 2nd DCA 2007). Error to require Husband to obtain annuity to pay alimony.

Vega v Swait, 961 So. 2d 1102 (Fla. 4th DCA 2007). New spouse’s income is not relevant unless party terminated employment and reduced living expenses and is now supported by new spouse.

Betancourt v Nunez, 945 So. 2d 642 (Fla. 3rd DCA 2007). No provision for Court ordered non-modifiable permanent alimony, must be stricken upon remand.

Marshall v. Marshall, 953 So. 2d 23 (Fla. 5th DCA 2007).  Court affirmed for awarding nominal permanent alimony because of husband’s disability in order ”to keep the door open”.

Price v. Price, 951 So. 2d 55 (Fla. 5th DCA 2007). 5th DCA finally approves “bridge-the-gap” alimony.  Good historic discussion.

Zeballos v. Zeballos, Court erred in reducing alimony to 1/3 instead of $1 when Husband’s impending retirement and Wife’s live in supporter eliminated ability and need.

Lambert v. Lambert, 955 So. 2d 35 (Fla. 3rd DCA 2007).  Error to award alimony of 60% of Husband’s income.  Voluntary payments made by Husband from a source no longer available should not be considered in ability.

Netherly v. Netherly, 951 So. 2d 976 (Fla. 4th DCA 2007).  Error for court to award “non- modifiable” alimony.

Welch v. Welch, 951 So. 2d 1017 (Fla. 5th DCA 2007).  Decision to home school children is not a trump alimony factor; it’s a factor, but not the main one.

Franco v. Fleck, 958 So. 2d 1043 (Fla. 2nd DCA 2007).  11 year “grey area”.  Husband had no ability, remanded to court to consider nominal award of alimony.

Smyth v. Smyth, 959 So. 2d 414 (Fla. 1st DCA 2007). Award of $250 permanent alimony reversed.  Court abused discretion.

Jaffy v. Jaffy, 965 So. 2d 825 (Fla. 4th DCA 2007).  Awarding permanent alimony to 34 year old with college education in 10 year marriage is abuse of discretion.

Imputation of Income:

Blakmon v Blakmon, 969 So. 2d 426 ( Fla. 1st DCA 2007). Court must set factual findings regarding probable and potential level of earnings and source of actual or imputed income.

Brown v. Brown, 954 So. 2d 1206 (Fla. 4th DCA 2007).  Error to impute income to pilot fired for drugs when court shifted burden to Former Husband to demonstrate he was not voluntarily employed.

Rodriguez v. Rodriguez, 958 So. 2d 436 (Fla. 3rd DCA 2007).  Ability to request financial assistance from family is irrelevant justification for alimony award.

Custody:

Peacock v Peacock, 937 So. 2d 501 (Fla. 3rd DCA 2007).  Court does not have to discuss custody factors so long as custody decision is in best interest of child.

Velasquez v Hernandez, 963 So. 2d 852 (Fla. 3rd DCA 2007).  Error to award custody without considering best interest of child. Spouse should not be required to pay child support when she has child.

Marco v Marco, 961 So. 2d 967 (Fla. 4th DCA 2007). Rule that frequent moves out of necessity should prevent modification, does not apply to the facts of this case.

Edrington v. Edrington, 945 So. 2d 608 (Fla. 4th DCA 2007).  Trial court did not abuse discretion by failing to designate a primary residential parent and awarding rotating custody where neither party was able to promote a relationship with the other parent to the child.

Castillo v. Castillo, 950 So. 2d 527 (Fla. 4th DCA 2007).  Specific guidelines (other than best interest) not required for custody determination.

Tarter v Tarter, 960 So. 2d 862 (Fla. 1st DCA 2007). Violates due process to change custody at contempt hearing without notice.

Sullivan v Sullivan, 736 So.2nd 103 (Fla. 4M DCA 1999). Frequent moves and less stable environment when out of necessity is not enough to support modification.

Relocation:

Vivian v Schembari, 966 So. 2d 492 (Fla. 4th DCA 2007). Denial of relocation affirmed.

Muller v Muller, 964 So. 2d 732 (Fla. 3rd DCA 2007). Trail Court reversed for granting relocation even though Court mentioned 61.13007 (7) factors.  Record was devoid of corroborating evidence.

Sanchez v. Sanchez, 959 So. 2d 373 (Fla. 1st DCA 2007).  Relocation reversed as court failed to address statutory factors.

Melton v. Freidman, 960 So. 2d 52 (Fla. 2nd DCA 2007).  Relocation denial affirmed.  Father exercised visitation and had strong family ties.  All constitutional issues raised and discussed.

Exclusive Use of Marital Home:

Rosario v. Rosario, 957 So. 2d 1219 (Fla. 4th DCA 2007).  Award of exclusive use and possession of house is preferred over a lump sum alimony award.

Marshall v. Marshall, 953 So. 2d 23 (Fla. 5th DCA 2007).  Court reversed for awarding wife exclusive use when there were no children, wife able bodied and husband disable.  Partition required.

Udell v. Udell, 950 So. 2d 528 (Fla. 4th DCA 2007).  Error to award set-offs if not plead.

Equitable Distribution:

Bell v Bell, 974 So. 2d 1095 ( Fla. 1st DCA 2007). Court erred making payment of marital liability enforceable by contempt.

Adams v Cook, 969 So. 2d 1185 (Fla. 5th DCA 20070. Court erred in failing to equitably divide parties business. Court should have accepted Wife’s suggestion to split receivables at time of filing.  Court erred in not classifying student loan incurred during marriage as marital.  Whether one party obtained the benefit of the marital debt is not germane.

Henderson v Henderson, 967 So. 2d 1118(Fla. 4th DCA 2007).  Court properly used Landay formula in determining special equity, but failed to take into account mortgage on property. Remanded.

Blakmon v Blakmon, 969 So. 2d 426 (Fla. 1st DCA 2007). Court erred by not setting deadline for private sale of house.

Monticello v Monticello, 967 So. 2d 390 (Fla. 4th DCA 2007). Court cannot preclude evidence of marital waste that occurred prior to 2 years before filing. Weight of remote dissipation left to trial court.

Soto v. Soto, 974 So. 2d 403 (Fla. 2nd DCA 2007).  Court erred as matter of law by determining income and adding value of assets and dividing by years of marriage, which is just absurd.

Arnold v Arnold, 967 So. 2d 392 (Fla. 1st DCA 2007).  Court erred in not including drop “benefits” in equitable distribution.

Siegal v Siegal, 967 So. 2d 349 (Fla. 3rd DCA 2007). Gifts from mother to Husband held in account in Husband’s name and no commingling = non marital gift.

Gaffney v Gaffney, 965 So. 2d 1217 (Fla. 4th DCA 2007).  Court reversed for awarding wife lump sum alimony when Husband converted FRS to disability payment. Court should have determined what part is for future pain and suffering and equitably divide remaining portion.

Hollister v Hollister, 965 So. 2d 341 (Fla. 2nd DCA 2007). Court reversed for failing to categorize Husbands SAR’s (Stock Appreciation Rights) that were fully vested at the time of filing but could not be valued. Court should not have created constructive trust to handle deferred distribution.

Tucker v Tucker, 966 So. 2d 25 (Fla. 2nd DCA 2007) Normally parties can testify to value, but not in this case. Realtor not qualified to opine on value. Error to award Wife car that was sold during pendancy of case to pay marital expenses.

Augashe v Lehman, 962 So. 2d 398 ( Fla. 2nd DCA 2007). Court can not split difference of expert’ opinion on valuations.

Hall v Hall, 32 FLW D1860 (Fla. 2nd DCA 2007).  Court reversed 25% award in total value of non marital enhancement.

Riley v Riley, 963 So. 2d 829 (Fla. 2nd DCA 2007). Court cannot partition property without determining whether debts are marital in nature.

White v White, 965 So. 2d 164 (FLA. 5th DCA 2007).  Spouse claiming special equity has burden. Trial Court not reversed by rejecting claim when only evidence was husband’s testimony.

Rivero v Rivero, 32 FLW D1726 (Fla. 3rd DCA 2007).  Assets should not, ordinarily, be valued as of a post dissolution because subsequent charge in property’s value due to non material labor of efforts cannot be disturbed.

Steele v. Steele, 945 So. 2d 601 (Fla. 4th DCA 2007).  3 trades in non-marital account were diminimis and did not convert entire pension to a marital asset.

Tuthill v. Tuthill, 954 So. 2d 754 (Fla. 4th DCA 2007).  Bridge the gap reversed when equitable distribution left wife in better financial position and Husband had no ability.

Damian v. Damian, 955 So. 2d 1178 (Fla. 2nd DCA 2007).  Court erred modifying property distribution without proper reservation of jurisdiction.

Pereboom v. Pereboom, 959 So. 2d 1205 (Fla. 4th DCA 2007).  Court reversed by awarding Wife portion of Husband’s corporation that was non-marital and had no enhancement.

Martin v. Martin, 959 So. 2d 803 (Fla. 1st DCA 2007).  Denial of partition reversed, where parties lived in residence for short period and lacked other significant assets.

Cintron v King, 961 So. 2d 1010 (Fla 4th DCA 2007). Property held by tenants in entirety presumed marital. To prove special equity, must show more than down payment coming from non-marital funds to overcome presumption of gift.

Landay v Landay, 429 So 2d 1197 (Fla. 1999). Formula for determining special equity on home is down payment/purchase price=special equity %.

Child Support:

Mena v Mena, 967 So. 2d 360 (Fla.4th DCA 2007). Court affirmed when refused to deduct child support for subsequent children from gross income, when agreement with second wife found to be not bona fide (i.e child support exceeded income).

O’bryne v Miller, 965 So. 2d 316 (Fla.2nd DCA 2007). Error to include 16 month orthodontic expense in base child support.

Ogando v Munoz, 962 So. 2d 957 (Fla. 3rd DCA 2007). Court should take into consideration cost of other children even if support is not court ordered. Good way to deviate.

Bonavito v. Bonavito, 58 So. 2d 988 (Fla. 5th DCA 2007).  Court can base child support of non-recurring assets if child’s needs not met on recurring income.

Murphy v. Murphy, 975 S. 2d 477 (Fla. 2nd DCA 2007).  Error to award child support for 3 children until youngest emancipates.

Ferraro v Ferraro, 971 So. 2d 826 (Fla. 2nd DCA 2007). Trial Court did not err when deviating from guidelines. Guidelines would have called for monthly child support which would have exceeded child’s need. See Finley v Scott.

Paternity:

J.W.T v S.T., 971 So. 2d 436 ( Fla. 2nd DCA 2007). Narrow holding. Court reversed paternity action when parties’ unmarried at birth, Wife files paternity, Wife remarries, Wife dismisses paternity, biological dad files.

Fernandez v D.O.R., 971 So. 2d 875 (Fla. 3rd DCA 2007). D.O.R. did not need to establish paternity in administrative proceeding for child support. Father listed on birth certificate. Father can always dispute paternity.

Lohman v Lohman, 963 So. 2d 985 (Fla. 4th DCA 2007). Bio dad had no right to file paternity test concerning child born in a marriage even when married parties filed for divorce, reconciled and dismissed divorce. Good discussion.

TB v. MM, 945 So. 2d 637 (Fla. 2nd DCA 2007).  Mother was slut.  Not married at time of birth.  Acknowledgment of paternity only establishes “rebuttable presumption”.

Williams- Raymond v. Jones, 954 So. 2d 721 (Fla. 4th DCA 2007).  Paternity suit properly dismissed when paternity had already been established.

Lohman v Lohman, 32 FLW D1647 (Fla 4th DCA 2007). In paternity case, child not born into “in tact” marriage when divorce pending at time of birth for purposes of determining legal father.

Disestablishment of Paternity:

D.O.R V. Ductant, 947 So. 2d 460 (Fla. 3rd DCA 2007).  If male prevails in disestablishment of paternity, he can be reimbursed child support since date of filing action.

Department of Revenue v. Ductant, 957 So. 2d 658 (Fla. 3rd DCA 2007).  Disestablishment of paternity relieves obligor of future support, not past.

DOR v. Price, 958 So. 2d 1045 (Fla. 2nd DCA 2007).  Must follow statutory requirements for disestablishment of paternity.  Good discussion.

Enforcement:

Randall v. Randall, 948 So. 2d 71 (Fla. 3rd DCA 2007).  Can’t hold someone in contempt for not paying debt as part of property division.

Patrick v. Patrick, 950 So. 2d 517 (Fla. 2nd DCA 2007).  Error to hold party in contempt when no adequate notice or findings of ability.

Gordon v. State, 960 So. 2d 31 (Fla. 4th DCA 2007).  Court can appoint private counsel to prosecute indirect contempt, especially in domestic violence cases.  Good discussion of Vuitton.

Williams v. Williams, 958 So. 2d 992 (Fla. 5th DCA 2007).  Court reversed when finding of contempt and forcing sale of house.  Issue was property division, court can’t modify terms.

Moss v. Moss, 959 So. 2d 375 (Fla. 3rd DCA 2007).  Payment 3 days late did not violate stipulation if no “time is essence” clause.

Vitt v. Rodriguez, 960 So. 2d 47 (Fla. 5th DCA 2007).  Payments applied first to current child support, then to interest then to arrearage.

Klinka v. Klinka, 959 So. 2d 383 (Fla. 5th DCA 2007).  Court can hold Wife in contempt for not signing listing agreement but can’t modify property division.

Decastro v. Decastro, 957 So. 2d 1258 (Fla. 3rd DCA 2007).  Indirect criminal contempt requires order to show cause, affidavit.  Error to change custody without proper pleadings.

Modification:

Hunt v Quesada, 968 So. 2d 607 (Fla. DCA 2007). Trial court affirmed by modifying shared parental responsibility granting exclusive decision making to Former Wife based on parties reaching impasse on school issue.

Paskiewicz v Paskiewicz, 967 So. 2d 277 (Fla. 3rd DCA 2007). Court reversed for allowing relocation, when parties had rotating custody. Only basis for modification was Former Wife’s desire to relocate.

Olsen v Olsen, 964 So. 2d 798 (FLA. 5th DCA 2007). Modification remanded due to inconsistent in  F.J.

Buxton v Buxton, 963 So. 2d 950 (Fla. 2nd DCA 2007). Error to deny modification when there is a 10 year supportive relationship based solely on fact there is no joint bank account. Good discretion of supportive relationship.

Thyree v Thyree, 963 So. 2d 859 (Fla. 2nd DCA 2007). Court made error in not making modification retroactive when need existed at time of filing.

Cuartos v. Cuartos, 951 So. 2d 980 (Fla. 3rd DCA 2007).  If modification tried by consent before magistrates part can’t raise objection in exceptions as they are waived.

Fort v. Fort, 951 So. 2d 1020 (Fla. 1st DCA 2007).  Property division not subject to modification.  Every Judge in circuit posses’ full jurisdiction in circuit court.

Wolfe v. Wolfe, 953 So. 2d 632 (Fla. 4th DCA 2007).   Wife refinancing house for 15 years creates inappropriate savings component to alimony.

Bluestein v. Bluestein, 958 So. 2d 1040 (Fla. 1st DCA 2007).  Court cannot modify unless properly plead.

Jannotta v. Hess, 959 So. 2d 373 (Fla. 1st DCA 2007).  Former Wife improved herself and was in better financial position.  Court reversed as this did not meet the burden.  Agreement to temporarily change custody not sufficient to meet burden.

Malone v. Malone, 959 So. 2d 1243 (Fla. 4th DCA 2007).  When temporary reduction in income, court must apply “good faith test”.  Must make effort to find comparable work including expanding adapting practice when industry changes.  If only token effort is made proper to impute implied income.

Attorney Fees:

Wright v Little, 32 FLW D1947 (Fla. 2nd DCA 2007). Where court found spouse had ability to pay fees, a provision waiting 13 years until the house sold was unreasonable and reversed.

Ratigan v. Stone, 947 So. 2d 607 (Fla. 3rd DCA 2007).  Court has authority pursuant to section 57.105 for litigation misconduct (not forthcoming with financial information, etc.).

Brewer & Solovsky, 945 So. 2d 610 (Fla. 4th DCA 2007).  Attorney can testify to the reasonableness of his fees.  However, the Court cannot rely solely on the testimony of the client for this purpose.

Johnson v. Johnson, 946 So. 2d 1132 (Fla. 1st DCA 2007).  Court could not award fees incurred post judgment for divorce absent an agreement.

Balko v. Balko, 957 So. 2d 15 (Fla. 2nd DCA 2007).  Court reversed award of 100% fees based solely on income, without considering other financial resources.

Sonnenfeld v. Sonnenfeld, 954 So. 2d 1279 (Fla. 5th DCA 2007).  Fees improper when parties receive equal net worth’s and equal income.

Savage v. Knecht, 955 So. 2d 1196 (Fla. 5th DCA 2007).  Cannot unilaterally reduce support upon filing modification.  Default fee provision should be entered.

Wamsley v. Wamsley, 957 So. 2d 89 (Fla. 2nd DCA 2007).  Tax dependency normally goes to primary parent unless other parent “shoulders most of financial burden”

Murphy v. Murphy, 944 So. 2d 1118 (Fla. 3rd DCA 2007).  Trial court has broad discretion to award fees.  In this case, fees awarded after exceptions affirmed.

Wright v. Little, 32 FLW D1491 (Fla. 2nd DCA 2007).  When fees available, unreasonable payment provision revoked.

Montello v. Montello, 961 So. 2d 257 (Fla. 2007).  1.525 (30 day fee request rule) does not apply in family law cases.  The method of taxation of fees and costs in family law cases is quite different than civil litigation.

Martin v. Martin, 959 So. 2d 803 (Fla. 1st DCA 2007).  Court reversed for not awarding fees when disparity of income (2.5 times).  Cannot impute irregular gifts as income.

Von Bailou v Von Bailou, 959 So. 2d 821 (FLA 4th DCA 2007). Court reversed after awarding wife all of her fees. When left with net worth of 2.5 million and income of 6,000 per month.

Temporary Support:

Hotaling v Hotaling, 962 So. 2d 1048 (Fla. 2nd DCA 2007). Error to award temporary support in amount that exceeds husband’s ability.

Cohen v. Cohen, 955 So. 2d 70 (Fla. 4th 2007).  Temporary Relief orders are among the areas the court has broadest discretion, which appellate courts will not disturb absent compelling evidence.

Procedure:

Rooks v. Rooks, 947 So. 2d 626 (Fla. 4th DCA 2007).  1.540 motion to set aside final judgment based on grounds of undue influence and fraudulent representations must be filed within 1 year of final judgment.

Schmitt v. Maile, 32 FLW D42 (Fla. 4th DCA 2007).  Without transcript or stipulated statement of facts, appellate court could not resolve factual findings.

Garcia v. Garcia, 958 So. 2d 947 (Fla. 3rd DCA 2007).  If party objects to magistrate then they have right for matter to properly be heard by court.  Mandamus or Prohibition are appropriate remedies.

Rinkor v. Brborich, 957 So. 2d 661 (Fla. 3rd DCA 2007).   Error to secure fees by injunctive relief per 61.11 (1).

Braswell v. Braswell, 958 So. 2d 950 (Fla. 3rd DCA 2007).  To reverse order due delay in rendering there must be inconsistencies between findings at time of hearing and findings in order appealed.

Miscellaneous:

Carrollo v Carrollo, 972 So. 2d 930 (Fla. 3rd DCA 2007).  Good decision of “Law of Case” doctrine.

Kopecky v Kopecka, 967 So. 2d 1109 (Fla. 4th DCA 2007).  Good discussion on service by publication.

Lopez v Lopez, 970 So. 2d 388 (Fla. 3rd DCA 2007). Default precludes introduction of evidence, but evidentiary hearing still required and defaulting party can challenge evidence.

In Re: Florida Bar, 969 So. 2d 360 (Fla. 2007). Rules for Florida registered paralegal.

Thomas v Fusiler, 966 So. 2d 1001 (Fla. 5th DCA 2007).  Twelve day delay in vacating residence was not substantial breach that waived $250,000 payment when there was no time is of the essence of clause.

Heidkamp v Warren, 990 So. 2d 1 (Fla. 2nd DCA 2007). When fraud is alleged as basis for relief from judgment, court must hold evidentiary hearing.

P.B Post v Limbaugh, 967 So. 2d 219 (Fla. 4th DCA 2007). MSA not filed with court not subject to disclosure to media.  Strong dissent that MSA a court record subject to disclosure to media.

Ledea-Genaro v Genaro, 963 So. 2d 749 (Fla. 4th DCA 2007). There is no requirement for court to continue trial or have additional hearings when party fails to present evidence without cause.

Trisotto v Trisotto, 966 So. 2d 986 (Fla. 5th DCA 2007). Court does not have jurisdiction to enter injunction against non-party.

Barrett v Barrett, 966 So. 2d 976 (Fla. 5th DCA 2007). Court erred entering an injunction without notice when there was no verified pleading or allegation of irreparable.

Meeks v Meeks, 964 So. 2d 185 (Fla. 2nd DCA 2007). Court erred by determining what liabilities are dischargeable in bankruptcy.

Koch v Koch, 961 So. 2d 1134 (Fla. 4th DCA 2007). Fact Wife is recovering alcoholic not enough to waive therapist PRW.

Heard v Heard, 965 So. 2d 173 (Fla. 5th DCA 2007). 1.540 motion properly denied when wife accepts 37% less in child support under “contracting away” theory when wife had financial disclosure and guardian ad litem approval.

Taylor v D.O.R., 961 So. 2d 1124 (Fla. 4th DCA 2007). No error in court refusing to consider audio tape of hearing before magistrate when no transcript is present.

Segarra v. Segarro, 947 So. 2d 543 (Fla. 3rd DCA 2007).  Judgment requiring counseling and mediation prior to filing modification affirmed.

Avellone v.Avellone, 951 So. 2d 80 (Fla. 1st DCA 2007).  A prior agreement is only superseded by MSA with “entire agreement clause” if subject is covered by the MSA

Hamilton v. Natoli, 954 So. 2d 739 (Fla. 3rd DCA 2007).  Parties who had 6 month residency at time of filing is all that matters.

Beroes v. Palacious, 958 So. 2d 489 (Fla. 3rd DCA 2007).  Constructive service OK for divorce, but trial court backed personal jurisdiction over anything else.

Fulmer v Fulmer, 961 So. 2d 1081 Fla. 1st DCA 2007). Normally Court must make factual findings on all statutory factors. However, failure to make findings on stipulated issue (age, duration) will not support appeal.

Exceptions:

Rodriguez v. Figueroa, 958 So. 2d 1041 (Fla. 3rd DCA 2007).  Cannot seek exceptions of factual dispute without transcript.

Prenup:

Francavilla v Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007). Husbands demand that wife sign prenup, negotiated for months; hours before wedding or he would not get married did not constitute duress.

Ledea v. Genaro, 963 So. 2d 749 (Fla. 4th DCA 2007).  Can not waive pre judgment alimony in prenup.

Appeals:

Brulte v Brulte, 967 So. 2d 1087 (Fla. 1st DCA 2007). Order denying motion to dismiss based on subject matter jurisdiction. Non-final order not subject to appeal per 9.130(a) (3) (c) (i).

Owen v Owen, 973 So. 2d 1169 (Fla. 1st DCA 2007). Party cannot appeal lack of finding did they do not seek rehearing.

Youngblood v. Youngblood, 959 So. 2d 416 (Fla. 1st DCA 2007).  Law of case can be overcome to prevent manifest injustice.

Contempt:

Amann v Bradshaw, 967 So. 2d 411 (Fla. 4th DCA 2007). Commitment order failing to comply with 12.615(d)(1) requires immediate release from incarceration.

Naples v Naples, 967 So. 2d 944 (Fla. 2nd DCA 2007). Husband’s agreement to pay alimony could not be preempted by USFSPA Act.

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