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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Byers v. Ovitt (04/21/2006) sp-6004

Byers v. Ovitt (04/21/2006) sp-6004, 133 P3d 676

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11605
Appellant, )
) Superior Court No.
v. ) 3AN-99-08687 CI
Appellee. ) No. 6004 - April 21, 2006

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:   Peter  F. Mysing,  Kenai,  for
          Appellant.    Sandra  L.   Ovitt,   pro   se,
          Anchorage, Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

          This  case  arises from a dispute about the  amount  of
child  support owed by Thomas Byers to Sandra Ovitt on behalf  of
their son, Kristerfer Byers.  In December 2003 Ovitt moved for  a
modification of the courts initial child support order,  claiming
that  purchases made by Byers showed that he had more income than
he  had  disclosed to the court.  After a series of  hearings,  a
superior  court  master  issued  a recommended  order  increasing
Byerss  child  support payments.  With slight modifications,  the
order was adopted by the superior court.
          Byers  raises three issues on appeal.  First, he argues
that  the  superior court erred in failing to dismiss the  motion
and   in   permitting  discovery  when  a  material   change   in
circumstances  was  not immediately evident.  Second,  he  claims
that the superior court should have scheduled a third evidentiary
hearing sua sponte.  Finally, he alleges that the superior  court
erred  in  its  method of calculating his income.   The  superior
court  was  acting  well within its discretion  when  it  allowed
discovery on the motion to modify, accepted Byerss knowing waiver
of a third evidentiary hearing, and imputed income to Byers based
on  his  expenses.   But the court erroneously failed  to  deduct
Byerss  federal  taxes and a portion of his voluntary  retirement
contributions from the income available for child  support.   For
that  reason, we affirm in part and reverse in part,  and  remand
for further proceedings consistent with this opinion.
     A.   Background
          Byers  and Ovitt, who have never been married, are  the
biological parents of Kristerfer Byers, a minor who was  born  on
July  8,  1995.   In  June 1999 Byers and  Ovitt  filed  a  joint
petition  and stipulation for custody, which was granted.   Ovitt
subsequently moved to modify the custody arrangement and, in  May
2002,  she was awarded sole legal custody.  Physical custody  was
divided  between  the two parents, with Ovitt  having  Kristerfer
seventy percent of the time, including weekdays during the school
year,  and  Byers having him for the remaining thirty percent  of
the time.
     B.   The  2002  Child  Support Order and  Ovitts  Motion  to
            In  September  2002 the court issued a child  support
order  requiring Byers to pay Ovitt $112.16 per month.  The court
based  its  calculation of Byerss income  on  his  DR-305,  which
showed an adjusted annual income of $11,844.1  Ovitt moved for  a
modification of the courts order in December 2003, on the  ground
that  Byerss  income  was  higher  than  what  he  had  reported.
According  to Ovitt, Byers had recently purchased a 2001  .  .  .
Ford  Truck for [$]30,000, and a [n]ew [h]ot tub, and was  making
substantial payments on his home mortgage.  She also claimed that
the   Alaska  Child  Support  Enforcement  Division  (CSED)   was
conducting  a  [l]ife [s]tyle [i]nvestigation  of  Byers.   Byers
filed an opposition to Ovitts motion, and also sought a reduction
in his child support obligations for 2002 and 2003.
          1.   The first hearing
          In  March 2004 Superior Court Master Suzanne Cole  held
an  evidentiary  hearing  on the two  motions.   Ovitt,  who  had
submitted  the  motion to modify pro se, was  represented  by  an
attorney;  Byers  represented  himself.2   Ovitt  introduced  two
vehicle  loan applications that Byers had submitted to  a  credit
union.  The first application, submitted in November 1999, stated
that Byerss monthly income was $6,000.  The second, submitted  in
March 2003, stated that his monthly income was $12,000, and  that
his  monthly  mortgage payment was $1,222.  Byers testified  that
the  loan  applications were inaccurate because he had mistakenly
          listed his annual income instead of his monthly income, and
because he did not read the application before signing it.
          The   superior  court  master  found  that   the   loan
applications  were extremely vague and unclear,  and  ruled  that
Ovitt  had  not  yet shown a change in circumstances  that  would
justify  altering the child support order.  But the master  noted
that  Byers had not submitted his tax return, and determined that
an additional hearing was necessary:
          Well, the way I see things right now is I  do
          not believe that Ms. Ovitt has met her burden
          of  proof  currently; however, I  do  believe
          that  whether this has been neglected in  the
          past   or   whether  CSED   has   chosen   to
          investigate this through another route . .  .
          I   do  believe  that  [Ovitts  attorney]  is
          entitled   to  review  [Byerss]  entire   tax
          return,   including  the   Schedule   C,   to
          determine whether the deductions claimed  for
          business  are  appropriate or not  for  child
          support purposes.
          Now  I  still, even after that, Im  going  to
          have  to determine that a significant  change
          of  circumstances exists  .  .  .  .   So  it
          appears to me appropriate that you [Byers] do
          provide the tax return information as part of
          discovery,  and well come back to this  issue
          once that is completed . . . .
Although  the court required Byers to submit his tax  return,  it
denied  a  request  from Ovitt for discovery  of  Byerss  company
records going back to 1999.
          2.   The second hearing
          At  the second hearing, which was held on May 13, 2004,
Ovitt called Theodore Sherwin, a certified public accountant,  as
a witness.  Sherwin testified that he had received three separate
2003 federal income tax returns from Byers:  a signed return from
January  2004, reporting a gross income of $14,369;  an  unsigned
return from March 2004, indicating a gross income of $22,316; and
a  signed  return from April 2004, indicating a gross  income  of
$18,074.   The  unsigned return was incomplete,  as  it  did  not
include  a  form  required for the calculation of self-employment
taxes,  a  form explaining a non-cash deduction of $1,300,  or  a
completed  partnership form.3  Byers protested that, because  his
business  was a partnership, he was not required to file  certain
forms  that Sherwin expected, and claimed that he was  trying  to
save the [c]ourt some time with this missing stuff.
          Sherwin  gave  an  estimate of Byerss  2003  income  by
adding up his yearly expenses and assuming that Byerss income was
at  least equal to the total amount spent.  For certain expenses,
such  as  utilities, car maintenance, insurance, and credit  card
payments,  Sherwin used estimates.  The total of these  expenses,
and  the  income that Sherwin attributed to Byers for  2003,  was
$48,850.   Byers  disputed Sherwins estimate, claiming  that  his
          company paid half of his $1,245 mortgage payment and eighty
percent of his vehicle loan payments and operating expenses.  The
superior court master directed Byers to provide Sherwin a copy of
what  was  actually filed with the IRS with all attachments,  and
set  a  deadline for Ovitt to respond to this in writing.   Byers
was given a deadline a week after Ovitts to reply.
          Master  Cole  then offered to hold a third  hearing  if
either  party found one necessary.  She explained in  detail  how
Byers could request such a hearing:
          The Court:      You  may  respond to  [Ovitts
                    response  to  the  tax  return]  in
                    writing,  whatever  you  think   is
                    necessary or appropriate, and  then
                    if  you feel that you need to  come
                    back  to [c]ourt and have a hearing
                    and  put on other evidence, you can
                    tell  me  at that time.   You  can,
                    depending   on  what  Mr.   Sherwin
          Mr. Byers:     Right.
          The Court:      But  you need to tell  me  by
                    June  1st  that you want a  hearing
                    and  why  you want a hearing,  what
                    you intend to do at the hearing.
          Mr. Byers:     Okay.
          The Court:     Okay?
          Mr. Byers:     All right.
          3.   After the second hearing
          Byers  produced a copy of a 2003 tax return, dated  May
18,  2004, claiming an adjusted gross income of $15,551.  Sherwin
then  composed a letter analyzing the return, in which  he  noted
that  there was no proof about whether the return had been filed,
that  Byers  was  attempting  to  claim  as  personal  deductions
expenses  that  he  was already claiming as  deductions  for  his
partnership,  and  that  the  income  Byers  attributed  to   the
partnership  was inconsistent with the expenses he  was  claiming
the  partnership had paid.  The letter also pointed out a  number
of  inconsistencies between the May return and the previous three
returns, and emphasized that [t]here is no indication in the data
supplied how much money was actually paid to Thomas Byers [by the
partnership] for 2003.  Based on the information provided in  the
tax  return,  but excluding any improper accounting  for  vehicle
expenses,  supplies  ($74,000) and the like, Sherwin  provided  a
possible estimate of Byerss income:
          Ordinary Income per Form K-1
          [Simplified Employee Pension] Payment
          (pending proof of payment)                     (4,242)
          50% of Depreciation taken on Form 1065
               (This is a non-cash deduction[)]
          Duplication of home office expenses
          Permanent Fund Dividend
          Net Income Tax Liability for 2003
          SEP payment to be refunded
Sherwin  provided a second estimate, using Byerss expenses  as  a
basis for estimating income:
          Tax per Form 1040 for 2003 @ 5/18/04         $  2,919
          Allowable SEP paid for 2003
          Personal Household Costs - Mtg. Pmts.            7,470
          20% of Vehicle Expenses
          Child Support
          Personal (Food, hygiene, etc.) -
               Per IRS Guidelines for A[laska]
               (One person) @ $790 per month          9,480
The  letter  emphasized  that these figures  assume[d]  that  Mr.
Byerss  latest  testimony, information and  the  returns  he  has
provided  are  more  correct tha[n] any  of  the  others  he  has
previously  provided, and went on to question whether Byerss  SEP
contributions were deductible for child support purposes.
          Byers responded with a letter of his own, disputing the
figures  cited by Sherwin, and claiming that his partnership  had
recently been audited by the IRS.  He attached a letter from  the
IRS,  dated  May  6,  2004,  stating that  it  had  examined  his
partnerships tax return and had made no changes.  Byers  did  not
request a third hearing.
     C.   The Masters Report
          The   superior   court  master  filed  a   report   and
recommended ruling in June 2004.  Noting that Byers had submitted
a  total  of four 2003 tax returns, each seem[ing] to respond  to
questions or discrepancies raised by Ms. Ovitt, and that none  of
the  four  had  been  filed with the IRS, the master  recommended
imputing income to Byers based on his yearly expenses.  Using the
second   proposed  estimate  from  Sherwins  letter,  the  master
determined  that Byerss adjusted annual income was  $29,176,  and
recommended that he be required to pay $333.25 per month in child
support.   The  superior court adopted the  masters  report,  but
amended it to reduce Byerss child support payment to $305.80  per
     A.   Standard of Review
          We  review  a  trial  courts modification  of  a  child
support  order under an abuse of discretion standard.5  The  same
standard  applies to a trial courts decisions about the scope  of
discovery.6  An abuse of discretion is found if we are left  with
the  definite  and  firm conviction on the whole  record  that  a
mistake  has  been made.7  Although the trial courts findings  of
fact  will not be set aside unless clearly erroneous,8  [w]e  use
our  independent judgment to decide whether it was error  not  to
hold an evidentiary hearing.9
          Because Byers was proceeding pro se before the superior
court,  and Ovitt is representing herself before this court,  the
record  contains documents from both parties that were  submitted
without the benefit of counsel.  We hold these pleadings to  less
stringent standards than those of lawyers.10
     B.   Failure To Dismiss Ovitts Motion at the First Hearing
          Byerss first argument is that the superior court master
erred  in  failing  to  dismiss Ovitts motion  after  an  initial
hearing, and that the decision to permit discovery of Byerss  tax
returns  allowed  Ovitt to engage in a fishing  expedition.   But
Alaska  Civil  Rule  90.3, which provides for  the  issuance  and
modification  of  child  support  orders,  does  not  create   an
exception  to  the  general rule that  trial  courts  have  broad
discretion in determining the extent of discovery.11
          Rule  90.3(h) permits a trial court to modify  a  child
support order if a material change of circumstances occurs,  such
that  support  as calculated under [Rule 90.3] is  more  than  15
percent  greater  or  less  than the outstanding  support  order.
Trial  courts  must  consider all motions for a  modification  of
child support,12 and may modify the original order if a change in
circumstances is shown by a preponderance of the evidence.13   As
Byers  correctly notes, the change must be a factual  event  that
affects  a  partys ability to pay, not just a proposal to  change
the method of calculation.14
          But  Rule 90.3 places few limits on trial courts  broad
discretion15 regarding the scope of discovery, and this court has
emphasized  the importance of tak[ing] all evidence necessary  to
accurately reflect the parties economic reality.16  Neither  Rule
90.3,  nor  any  of  our  cases,  requires  that  a  trial  court
adjudicating  a  motion  to  modify  child  support   limit   the
proceedings  to  a single hearing or forbid discovery  after  the
first  hearing.  To the extent that this rule addresses discovery
at  all,  it supports the superior courts request for Byerss  tax
returns:  Rule 90.3(e)(1) requires each parent in a child support
proceeding  to file a statement under oath of his or her  income,
accompanied  by  documentation verifying the  income.17   In  the
present case, a copy of Byerss complete tax return was not in the
record,  and  the  other  evidence that had  been  submitted  was
inconclusive.  In view of this lack of evidence, and Byerss  duty
under  Rule  90.3(e)(1)  to submit income documentation,  it  was
appropriate and well within its discretion for the superior court
to ask for [Byerss] current tax returns.18
          Furthermore,  far  from  granting  Ovitt  unconditional
license  to  engage in a fishing expedition, the  superior  court
limited  the  additional  discovery  to  documents  necessary  to
          determine Byerss income in the tax year after the child support
order  was  issued.  When Ovitt requested documents beyond  this,
the court denied the request:
          [Ovitts attorney]:   I  would  like  you   to
                         continue the hearing date.  Id
                         like  Mr. Byers to have a date
                         to  supply  to us the  company
                         records from 99 through
          The Court:            No.    Were  not  going
                         backwards.    Im   sorry   Mr.
                         Eschbacher, Im not
          [Ovitts attorney]    Well, the reason I  want
                         to   go   backwards   is   for
          The Court:           I  am not willing to  do
By  limiting  discovery  in this way, the  trial  court  properly
focused  the  proceedings on the central issue:   whether  Byerss
income  had  changed significantly since the previous  order  was
filed.   We therefore hold that the superior court did not  abuse
its discretion in permitting discovery of Byerss tax return.
     C.      The Courts Failure To Schedule a Third Hearing
          Byerss  second  argument is that  the  court  erred  in
failing  to  sua  sponte  schedule a  third  evidentiary  hearing
following the parties submission of supplemental authorities.  He
claims  that  the  lack  of  a  third  hearing  resulted   in   a
determination  based  on  uncorroborated  written  statements,  a
violation  of this courts holding that Civil Rule 90.3  does  not
authorize child support trials by affidavit.19
          In the present case, the superior court did not hold  a
trial[]  by  affidavit.20   It  actively  and  repeatedly  sought
information  about  Byerss 2003 income, continuing  discovery  to
obtain  a current copy of Byerss tax return, scheduling a  second
hearing,  again ordering Byers to submit a complete copy  of  his
2003  tax  return,  and even offering to hold  a  third  hearing.
Byers  responded  by submitting four incomplete versions  of  his
2003 tax return, which reported gross income ranging from $14,369
to $22,316 and were replete with errors and omissions.  As of the
June  15,  2004 masters report, none of these returns  appear  to
have been submitted to the IRS.
          Because of Byerss repeated failure to submit a complete
and  final 2003 tax return, the superior court imputed income  to
him  based on his estimated expenditures.  As the masters  report
recognizes,  a trial court has broad discretion to impute  income
based on the most complete evidence before it21 if the record  is
incomplete.   This  discretion is particularly  broad  where  the
reason   for   the   incomplete  record  is   the   parents   own
unresponsiveness.22   Imputing  income  to  Byers  based  on  his
estimated  expenses was therefore well within  the  trial  courts
          Byers  also emphasizes that he was proceeding  pro  se,
          suggesting that his waiver of a third hearing might not have been
a knowing one.  The trial court has an obligation to inform a pro
se  litigant of the option of holding an evidentiary hearing, and
to  make  it  clear that the litigant must actively  request  the
hearing.23   Had  the superior court failed to  do  this,  Byerss
waiver would be highly suspect.  But the court expressly informed
Byers of the option of holding a third hearing, told him that  he
would  have  to  request  the hearing  by  a  certain  date,  and
repeatedly  confirmed that he understood.  Byers was  well  aware
that  a  third hearing was available if he asked for one, but  he
made  no  such  request.  For this reason,  we  hold  that  Byers
knowingly waived such a hearing.
     D.   The Courts Calculation of Byerss Income
          Byerss final argument is that the superior court  erred
in  calculating his income.  But his claim that the  trial  court
should not have imputed income to him based on estimated expenses
because  it  erred in finding that Byers was uncooperative  lacks
merit.   As  discussed above, the courts finding that  Byers  was
uncooperative,  and  that  he  had  not  provided  the  requested
documentation  of  his 2003 income, was amply  supported  by  the
record.  In spite of repeated requests from the court, Byers  did
not  submit  a complete and final 2003 tax return.  Moreover,  he
actively  obstructed the fact-finding process by submitting  four
incomplete, and mutually inconsistent tax returns.  As in  Benson
v.  Benson,  Byerss  recalcitrance forced [the  trial  court]  to
impute  income for purposes of calculating child support.24   For
this  reason, we hold that imputing income to Byers based on  his
estimated expenses was not an abuse of discretion.
          But   Byerss   argument  that  the  court  abused   its
discretion  by refusing to grant him deductions for  his  federal
income  tax  payments and contributions to a voluntary retirement
program  is  more  persuasive.   Rule  90.3(a)(1)  provides  that
adjusted  annual income for the purposes of child  support  means
the  parents total income from all sources minus . . .  mandatory
deductions such as . . . federal, state, and local income tax . .
. [and] voluntary contributions to a retirement or pension plan.25
The  total  deducted  for voluntary contributions  to  retirement
plans  may  not exceed 7.5% of the parents gross wages and  self-
employment income.26  As this court has emphasized, [c]ourts must
follow  the legal standards set forth in Rule 90.3 in determining
awards of child support.27
          The superior court imputed income to Byers based on the
amounts  spent  by Byers during the year.  Sherwins expense-based
method  of  estimating income totaled Byerss expenditures  for  a
year  and  the  resulting figure  $29,176    was  Byerss  imputed
income.   Yet  Sherwins calculation of Byerss  expenses  included
Byerss payment of federal taxes and his voluntary contribution to
a  retirement  account. Although the superior  court  used  these
estimated  federal tax and voluntary retirement contributions  as
expenses  to  impute  income to Byers, it  appears  not  to  have
deducted   taxes  or  voluntary  retirement  contributions   when
determining Byerss income for child support purposes as  required
by  Rule 90.3(a)(1)(B).  Specifically, the superior court did not
deduct  from the imputed gross income the $2,919 which  it  found
          Byers paid in income taxes or the allowable voluntary retirement
contribution  of  $2,188.20 (7.5% of the  $29,176  imputed  gross
income),  despite the fact that these expenditures were  used  to
calculate  the imputed gross income.  As Byers correctly  argues,
these  allowable deductions would have significantly reduced  the
income  available to him for the purposes of child support.   For
that  reason,  we  vacate the modified child  support  order  and
remand  for  a determination of Byerss income tax and  retirement
contributions  for  2003.  The superior court may  impute  income
based on the expenditures-based method that it used or it may use
another   recognized   method   of   imputation.28    If   better
documentation (such as the 2003 tax returns actually submitted to
the   IRS)  is  now  available,  the  superior  court  may   also
recalculate  Byerss actual gross income for 2003.   But  whatever
method it uses to impute or determine Byerss income for Rule 90.3
purposes, the court should deduct Byerss federal income taxes, as
well  as  voluntary retirement contributions up to  7.5%  of  his
gross income.
          For  the reasons set forth above, we AFFIRM in part and
REVERSE  in  part the judgment of the superior court, and  REMAND
for further proceedings consistent with this opinion.
     1     The DR-305 is a standardized affidavit listing sources
of     income     for     child    support     purposes.      See

     2     In the present appeal, Ovitt is proceeding pro se  and
Byers is represented by an attorney.

     3     Byers  was a fifty-percent partner in the Conservative
Building Maintenance Company.

     4    The reduction involved Kristerfers health insurance, an
issue that has not been raised on appeal.

     5     Robinson  v.  Robinson, 961 P.2d  1000,  1002  (Alaska

     6    Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990).

     7    Wright v. Wright, 22 P.3d 875, 878 (Alaska 2001).

     8    Horton v. Hansen, 722 P.2d 211, 215 (Alaska 1986).

     9    Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).

     10     DeNardo  v. Calista Corp., 111 P.3d 326, 330  (Alaska

     11    Jones, 788 P.2d at 735.

     12    Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).

     13    Id.

     14     Cf.  Bunn  v. House, 934 P.2d 753, 758 (Alaska  1997)
(holding  that a change in a partys legal theory is not a  change
of  circumstances  which  warrants the modification  of  a  child
support order).

     15    Jones, 788 P.2d at 735.

     16    Routh, 19 P.3d at 595.

     17    Alaska R. Civ. P. 90.3(e)(1).  The rule also permits a
party  to  obtain  documents such as tax returns  and  pay  stubs
showing  the  [other] partys income for the prior  calendar  year
upon  written  request while there is an ongoing monthly  support
obligation.   Alaska  R.  Civ.  P.  90.3(e)(2).   Although   Rule
90.3(e)(2)  applies regardless of whether a party  has  moved  to
modify  the  order, it suggests that tax returns  are  viewed  as
highly probative evidence of income.

     18    Goossen v. Still, No. S-10285, 2002 WL 31716561, at *8
(Alaska 2002) (holding that a superior courts request for  income
tax  returns in the context of formulating a child support  order
was  not error because the tax returns would be a good source  of
information  for the income information that the  superior  court
previously  did not have).  Although the superior  court  in  the
present  case may have had information as to Byerss  income  when
the  original  child support order was filed,  it  did  not  have
information  about  what Byerss income was when  Ovitt  moved  to
modify the order.

     19    Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992).

     20    Id.

     21    Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992).

     22     Cf.  Benson v. Benson, 977 P.2d 88, 95 (Alaska  1999)
(affirming a child support order based on imputed income because,
[d]ue to the lack of credible income information supplied by [the
appellant],  and  his non-responsive and contradictory  testimony
regarding  such information, [the superior court] was  forced  to
impute income for the purposes of calculating child support); see
also  Hartland  v.  Hartland, 777 P.2d  636,  640  (Alaska  1989)
(noting  that Alaska law clearly permits a trial court to resolve
a  finding of fact against a party whose vexatious, contemptuous,
or   obstructive  behavior  causes  the  trial  court   to   have
insufficient evidence).

     23     Cf.  Collins v. Arctic Builders, 957  P.2d  980,  982
(Alaska  1998)  (holding that the failure  to  inform  a  pro  se
litigant  of specific defects in his or her notice of appeal  and
to  give  the litigant an opportunity to respond to those defects
is  manifestly  unreasonable and thus  constitutes  an  abuse  of
discretion);  Breck  v.  Ulmer, 745 P.2d  66,  75  (Alaska  1987)
(discussing  the  duty of the trial court  to  inform  a  pro  se
litigant  of  the proper procedure for the action he  or  she  is
obviously attempting to accomplish).

     24    977 P.2d at 95.

     25    Alaska R. Civ. P. 90.3(a)(1)(A)-(B).

     26    Alaska R. Civ. P. 90.3(a)(1)(B).

     27     Teseniar  v. Spicer, 74 P.3d 910, 915  (Alaska  2003)
(reversing  in  part a superior courts modification  of  a  child
support  order  because the court did not  allow  deductions  for
mandatory expenses enumerated in Rule 90.3(a)(1)).

     28     For example, the court could use Department of  Labor
wage statistics to impute income to Byers.

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