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Divorce, Equitable Distribution, Court Set Listing Price Marital Property

August 9, 2016 by  
Filed under Uncategorized

In A Divorce A Court Can Set The Listing Price Of A Marital Property

In Ghannam v. Ghannam, the Fifth District Court of Appeals for the State of Florida decided that the trial court did not commit harmful error when it ruled that the Husband could not sell a marital property to his purported friend for $55,000 and that the property should be listed for sale for $95,000.

The trial court had initially ruled that the property be listed for sale by the Husband at a sale price consistent with a recent appraisal.  The Husband entered into a contract to sell the property to a purported friend for $55,000.  There is nothing in the opinion to suggest that the property was appraised for that amount.

The Wife moved for the court to determine the fair listing price of the property based upon market value.  The trial court heard witnesses and admitted evidence at a hearing on the issue and ruled that the property should be listed for $95,000.  The Husband appealed.

The Fifth District Court of appeals ruled that the listing price set by the court did not cause harmful error.  That is the listing price was above the market price the property would not sell, but if it did sell the Husband and Wife would both stand to gain more than if the property were sold for $55,000.

In ruling as it did the Fifth District Court of Appeals  ruled that on the facts before it a court can set the listing price for a marital home.

If you have questions related to your divorce, equitable distribution of marital assets and property, or the listing of a home as part of a divorce you are welcome to contact one of our divorce attorneys for a consultation to discuss your situation.

Divorce, Equitable Distribution, Court Must Identify Marital Or Non-Marital Status of Assets And Value Them

August 2, 2016 by  
Filed under Uncategorized

Lawyer To Help With Divorce, Dissolution of Marriage, Equitable Distribution, Marital or Non-Marital Assets and Valuation Issues

In a divorce case with assets and liabilities the court must identify which assets and liabilities are marital and which are not and assign values to the assets and liabilities so they can be divided in equitable distribution.

equitable distribution assets and liabilities

Court Decision Reversed Where Assets Are Not Identified As Marital or Non-Marital and Not Valued 

In Buckalew v. Buckalew, the trial court had affirmed a General Magistrates written findings of fact that did not identify what assets and liabilities were marital and what were not.  Nor did it assign values to each asset and liability.  The Fourth District Court of Appeals for the State of Florida reversed the trial court’s decision to adopt the written findings because they did not state what was marital and what was not and assign a value to each asset and liability.

If you are facing equitable distribution issues in your case we can help identify the issues specific to your case and present your case to the court.

 

Divorce, Dissipation Of Assets, Equitable Distribution, Misconduct, Findings Required

March 25, 2016 by  
Filed under Uncategorized

 

 

Where there has been a dissipation of marital assets in a divorce a court can include the dissipated assets in its equitable distribution scheme if there was intentional misconduct that lead to dissipation of the assets.

In Miller v. Miller, the Fourth District Court of Appeals for the State of Florida stated that while a court can include the dissipated assets in its equitable distribution scheme if there was intentional misconduct that lead to dissipation of the assets, here need to be specific findings made to support it.

“On that argument, we reverse the final judgment with directions for the court to determine whether the wife engaged in such intentional misconduct. As our sister court stated in
Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008):
As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset.  In that case, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.
When considering whether the dissipation of an asset resulted from misconduct, the question for the trial court is whether one spouse used marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. Id. at 584-85(emphasis added;internal citations, quotation marks, and brackets omitted)”

Court Reverses Divorce Judgment As To Errors In Calculation Of Equitable Distribution

March 23, 2016 by  
Filed under Uncategorized

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In Neiditch v. Neiditch, the Fifth District Court of Appeals for the State of Florida reversed those portions of a divorce judgment related to equitable distribution of marital debts and assets that contained mathematical errors.  The Court ruled that it was error to (1) require the former husband to repay half of loan from the former wife’s thrift savings plan where the former wife received all the payments; (2) include the full value of automobile awarded to former husband as an asset of the former husband where the automobile had an outstanding loan balance greater than its value; and (3) order the former husband to make an equalization payment of the full amount of the difference between the net marital estate awarded to the former husband and the net marital estate awarded to the former wife where one-half of the difference would have equalized the distribution.

 

Portion Of Pension Plan Earned During The Marriage Should Have Been Subject To Equitable Distribution

March 8, 2016 by  
Filed under Uncategorized

 

 

 

Usually the portion of a pension plan earned during a marriage should be subject to equitable distribution.

In Coleman v. Bland the Fifth District Court of Appeals for the State of Florida opined that the trial court erred in ruling that the value of the marital portion of the former husband’s pension plan was de minimis and therefore did not include it in equitable distribution.  The Fifth Court of Appeals opined that the marital portion of the pension should have been subject to equitable distribution and that the amount in question was not de minimus to the Former Wife.

The Court stated in pertinent part:

Arvita M. Coleman, the former wife, appeals the trial court’s order entered on September 22, 2014, upon remand from this court. Determining that the trial court erred in ruling that the value of the marital portion of the former husband’s pension plan was de minimis, we reverse.

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Michael Bland, the former husband, worked for the Yonkers School Board of Education for approximately 31 years. After 49 weeks of marriage to the former wife, the former husband retired from this position. After a 39-month marriage, the former husband filed a petition seeking dissolution of the parties’ marriage. The trial court dissolved the parties’ marriage and equitably distributed the marital property. The former wife appealed. We affirmed the dissolution judgment, in all respects except one. We held:

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Arvita M. Coleman [“Former Wife”] appeals the final judgment dissolving her marriage to Michael Bland [“Former Husband”]. We find no reversible error in any of the issues raised on appeal, save one. Among the issues in dispute between these parties was the question whether any part of Former Husband’s pension was a marital asset. The trial court made no finding in the final judgment concerning whether this asset was marital or non-marital, as required by section 61.075(3), Florida Statutes (2009).
Former Wife contends on appeal that the lack of findings constitutes reversible error as to this and other assets; however, as to all except the pension, we find, after our review of the record, that any error was harmless. We are unable to make an adequate review of the pension issue without findings, however. The record seems to show that some portion of the pension, although small, was earned during the marriage and should be classified as a marital asset. We therefore reverse as to that issue only and remand for the trial court to hear and to make proper findings on the disposition of the Former Husband’s pension.
Coleman v. Bland, 73 So. 3d 795, 795-96 (Fla. 5th DCA 2011).

On remand, the trial court conducted a hearing which addressed the former husband’s pension. The trial court applied the following methodology to determine the marital portion of the pension:
31 years times 52 weeks . . . [equals] 1,612 weeks of which 49 were during the marriage. So . . . 49 divided by one – [1]612 is three percent which would be the marital portion and divided in half would equal 1.5 percent. [1.5% multiplied by $5,900 [the amount received monthly] equals $88.50]. But three percent is the marital portion.

At the close of the hearing, the trial court stated:
The Court finds that given all of the circumstances of the case including the fact that the wife received a car which was purchased with the husband’s non-marital funds and was supported for three years, in fact almost longer than the term of the marriage, in the home after the filing of the petition as well as other items that the d[e] minimus amount of the retirement account that would be marital, that it is a d[e] minimus amount and that the Court will find that at this time it’s not an equitable distribution given all the circumstances particularly those presented today concerning the support provided by the husband for three years following the filing of the petition and is sufficient that the Court will find that the amount of the marital portion of the husband’s retirement should remain his sole — to be his sole property.

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In a written order, the trial court awarded the former wife no portion of the former husband’s pension. The former wife appeals.
“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion. Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence.” Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008)(citations omitted) (internal quotation marks omitted). Also, “the trial court’s valuation and distribution of the marital assets” is reviewed for abuse of discretion. Claughton v. Claughton, 625 So. 2d 853, 855 (Fla. 3d DCA 1993).

The former wife contends that the trial court erred in its deminimis valuation, arguing that:
the transcript reveals that the trial court’s calculation of [her] share was $89.67 per month based on [the former husband’s] receiving $5,900 per month in pension times 1.5%. The $89.67 might be de minimis to [the former husband]; however, it is clearly not de minimis to [her] as it would increase her $331 per month income by 27.1%.

We agree.

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In Bardowell, the court observed:
At trial, the wife submitted evidence of a “retirement forecast” document prepared by the FRS, which stated that, as of December 2004, the husband’s current FRS balance was worth $17,438. The document noted that the current FRS balance “is the present value of your accrued FRS benefit given current years of service.” The FRS documentation provided competent evidence that the present value of the husband’s FRS pension was approximately $17,438 as of December 2004. This is not a nominal value. While the trial court would have been within its discretion to value the pension at an amount lower than $17,438 to account for the fact that the pension was not yet vested, the trial court was not free to ascribe a nominal value to the FRS pension. The trial court’s decision to assign a nominal value to the FRS pension was not reasonable or equitable.
475 So. 2d at 629-30. See also Locke v. Locke, 832 So. 2d 971, 972 (Fla. 2d DCA 2002) (“We find that a difference of several thousand dollars should not have been dismissed [as de minimis] without a more precise inquiry.”).

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Here, as in Bardowell, some portion of the pension was earned during the course of the parties’ marriage. Over the course of ten years, the pay out of the marital portion of this pension would be roughly $21,600. Thus, the trial court erred when it determined that the marital portion of the pension was of de minimis value.
Accordingly, we reverse the order entered on September 22, 2014, and remand for the trial court to reconsider the proper disposition of the marital portion of the pension.

In A Divorce The Court Must Address Whether Assets Are Marital or Nonmarital For Equitable Distribution Purposes

December 22, 2015 by  
Filed under Uncategorized

 

 

In Goldman v. Goldman, The Fifth District Court of Appeals for the State of Florida ruled that it was error for the trial court not to have designate whether the wife’s checking account and certificate of deposit, both of which were in wife’s name, were marital or nonmarital property for the purposes of equitable distribution.  The wife had argued that the assets were nonmarital while the husband had argued that they were marital.

In its final judgment, the trial court stated that “[e]ach party shall be entitled to the sole and exclusive use and possession of the checking/savings, money market, CD and cash accounts in their respective names.”
 
However the Fifth District Court of Appeals found that this was not enough.  “Under the equitable distribution statute, the court must categorize the parties’ assets as nonmarital and marital.” Knecht v. Knecht, 629 So. 2d 883, 886 (Fla. 3d DCA1993) (citing § 61.075(1), Fla. Stat. (1991); Robertson v. Robertson, 593 So. 2d 491, 493 (Fla. 1991)). Because the record was not clear whether the trial court determined that these two assets were the wife’s nonmarital property, or instead, made an unequal distribution of marital assets, the decision was reversed for the trial court to provide clarification.

 

When Should Brokerage Accounts Funded With Inherited Money Be Considered Marital Assets And Subject To Equitable Distribution?

October 20, 2015 by  
Filed under Uncategorized

 

 

 

In a Divorce case the court determines what assets and liabilities are marital and which are not and equitably divides the marital assets and liabilities.  The Third District Court of Appeals just entered an opinion in the case of Gromet v. Jensen reversing the trial court for its decision to consider three brokerage accounts funded with inherited money to be marital and subject to equitable distribution. 

Of the three brokerage accounts, one  had been established prior to the marriage and the two others that had been established during the marriage.  All three had been funded  by the Husband with money inherited from his mother.  Inherited money usually starts of as being non-marital. 

The Wife claimed that the brokerage accounts were marital because the Husband had deposited about $1,100 from the dissolution of a marital business into a brokerage account and because the Husband had expended marital efforts and labor in his management of the accounts such that any enhancement in value should be considered marital.

The Husband claimed that while he had managed the accounts during the marriage they had actually decreased in value because of trading losses and the use of funds to maintain the marital household.  The Husband also testified that the had not deposited the $1,100 from the marital business into any of the three brokerage accounts having deposited it into a separate bank account.

The Third District Court of Appeals considered the testimony, evidence, and law in detail coming to the conclusion that the three brokerage accounts were not marital on the record before it.  It reasoned that the Wife had not specified which brokerage account the $1,100 had been deposited into and did not have specific knowledge regarding the accounts such that the evidence before it was insufficient to find commingling had occurred based upon the vagueness of the Wife’s testimony and evidence concerning the deposit.

The Court then considered the Wife’s enhancement in value argument.  The Court reasoned that while the Husband had actively managed the accounts during the marriage the Wife had failed to meet her burden to show an enhancement in their value had resulted from it, and that the evidence of record actually supported that they had decreased in value. Accordingly, the Wife was not entitled to any portion of the three accounts.

This case shows the importance of properly preparing for trial and presenting the right evidence to the trial court.  Had a different record been established at trial through documents or testimony the outcome may have been completely different.  For instance a bank record showing the deposit of the $1,100 into the initial brokerage account which was then used to fund the other two may have affected the court’s consideration of whether the accounts had become marital through commingling.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, valuation under the law,  and presenting the legal arguments and evidence to the court to support your position, contact our office to arrange a consultation on (786)539-4935

 

 

A Divorce Judgment Needs To Contain Specific Findings In Support Of Equitable Distribution

September 30, 2015 by  
Filed under Uncategorized

 

 

In Matteston v. Matteson, the First District Court of Appeals ruled that the Divorce Judgment before it did not contain sufficient findings to support the distribution of personal property, bank accounts, or tax refunds, and did not have attached the items that were meant to have been attached according to the Judgment to support the division of assets set forth in it.  A trial court needs to make specific findings in support of an equitable distribution award so that an appellate court can meaningfully review it.  Failure for a trial court to do so can constitute reversible error.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, its valuation under the law, the dissipation of assets,  and presenting the legal arguments and evidence to the court, contact our office to arrange a consultation on (786)539-4935

Court Should Not Have Made An Unequal Equitable Distribution Of Marital Assets Based On The Husband’s Superior Ability To Earn Income Without Considering Other Factors

September 4, 2015 by  
Filed under Uncategorized

 

 

In Kyriakou v. Kyriakou, the Second District Court of Appeals held that the trial court should not have made an unequal equitable distribution of marital assets based on the Husband’s superior ability to earn income alone and without considering the other factors listed in the statute as disparate earning capacity alone should not form the sole basis for an unequal equitable distribution.  

The Appellate Court also took issue with the lack of findings on the record to support the categorization and valuation of the parties assets and made clear that if a judgment is being based on the dissipation of marital assets there must be evidence of it and specific findings of misconduct.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, its valuation under the law, the dissipation of assets, misconduct, and presenting the legal arguments and evidence to the court, contact our office to arrange a consultation on (786)539-4935

 

Divorce, Property Division, and Equitable Distribution, Florida Statute Section 61.075

August 19, 2015 by  
Filed under

PROPERTY DIVISION

If you have questions about a divorce, division of assets or equitable distribution call us on (786) 539-4935 to arrange a consultation.

Florida State Section 61.075 (2015) Equitable distribution of marital assets and liabilities states:

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.
(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor’s estate to the obligee or the obligee’s estate, unless otherwise agreed to by the parties.

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.
(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

(5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities.

(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.
(b) The court shall specifically take into account and give appropriate credit for any partial distribution of marital assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.
(c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.
(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution.

(6) As used in this section:

(a)1. “Marital assets and liabilities” include:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
c. Interspousal gifts during the marriage.
d. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

(b) “Nonmarital assets and liabilities” include:

1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.
(7) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.
(8) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.
(9) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.
(10) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.
(11) Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.

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