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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eniero v. Brekke (09/12/2008) sp-6306

Eniero v. Brekke (09/12/2008) sp-6306, 192 P3d 147

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CHERYL ENIERO, )
) Supreme Court No. S- 12873
Appellant,)
) Superior Court No. 3AN-99- 4383 CI
v. )
) O P I N I O N
STEVEN BREKKE, )
) No. 6306 September 12, 2008
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Dorothea G. Aguero,  Anchorage,
          for Appellant.  Roy V. Williams, Eagle River,
          for Appellee.

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

          MATTHEWS, Justice.

I.   INTRODUCTION
          Cheryl  Eniero  and  Steven  Brekke  cohabited,  had  a
daughter,  and  later separated.  They received joint  legal  and
physical custody of their daughter, but Eniero had the final  say
over  educational  and non-emergency medical  decisions.   Eniero
filed a motion to modify custody so she could move to Oregon with
their daughter.  After a hearing, the superior court decided that
Enieros  move was, in part, driven by the illegitimate motive  of
limiting Brekkes ability to be involved in their daughters  life.
Analyzing  the  best interests of the child, the court  concluded
that  it was in the daughters best interests to stay with  Brekke
in Alaska should Eniero move to Oregon.  Eniero appeals, claiming
that the superior court employed the wrong legal standard when it
assessed the legitimacy of her motives for the move and that  the
court abused its discretion in its custody determination.
          We  affirm because the superior court properly followed
our  precedent by addressing Enieros illegitimate motive for  the
move  in  its  analysis of the best interests of the  child.   We
further  conclude that the court did not abuse its discretion  in
reaching its custody determination.
II.  FACTS AND PROCEEDINGS
          Cheryl   Eniero   and  Steven  Brekke   cohabited   for
approximately  four  years and are the  parents  of  a  daughter,
Miranda,1 born in 1997.  They separated in 1998 and entered  into
a  stipulation  regarding  legal and physical  custody  of  their
daughter, child support, and visitation, among other things.   In
October 2000 Superior Court Judge Eric T. Sanders issued findings
of  facts  and  conclusions of law that largely memorialized  the
parties  agreement.   The court also issued  a  decree  of  child
custody  incorporating the findings of fact  and  conclusions  of
law,  awarding Eniero and Brekke joint legal and shared  physical
custody  of  their  daughter,  and  making  provisions  for   the
assessment of child support obligations.
          The  custody arrangement generally provided that Brekke
had  Miranda  during the weekends and parts of some  Mondays  and
Eniero  had  Miranda  during the work  week  and  parts  of  some
Sundays.   Eniero  received the right to choose Mirandas  school,
but  both  parents  were granted access to  her  school  records.
Eniero  also  received  the final say over non-emergency  medical
decisions,  but Brekke was entitled to provide his input  on  all
major medical decisions.
          Steven  Brekke  later married.  Stevens wife,  Heather,
has a son from a prior relationship.
          On  July  15,  2006, Brekke filed a  motion  to  modify
custody.   Superior  Court Judge Sharon L.  Gleason  conducted  a
hearing and made oral findings of fact and conclusions of law  in
January  2007.   The court was critical of the generally  hostile
communications between the Brekkes and Eniero.  Determining  that
there  was  a substantial change in circumstances because,  among
other  things, Miranda was no longer of pre-school age, the court
granted  a  week-on,  week-off  custody  arrangement.    Due   to
hostility  between Heather Brekke and Eniero, the  court  ordered
that Heather Brekke not be present during custody transfers.  The
court  further required that Steven Brekke and Eniero attend  co-
parenting counseling.  The court directed that the only  form  of
communication  between the parties should be  by  e-mail,  unless
there  was  an  emergency or if the parties otherwise  agreed  to
other  forms of communication.  But the court retained the former
system of legal custody which accorded Eniero the final say  over
some  decisions.   In  February 2007  the  court  issued  written
findings  and an order generally restating its oral findings  and
conclusions.
          On June 14, 2007, Eniero filed a motion to modify child
custody  and support.  Eniero explained that she wanted  to  move
from  Anchorage to Lakeview, Oregon.  On August 20,  2007,  Judge
Gleason conducted a hearing regarding Enieros motion.
          At  the  hearing, Eniero testified that she  wanted  to
          move to Oregon to work with her parents in their property
management  business, assist her father in  starting  up  an  air
charter  service, and help her father manage the  local  airport.
Eniero had no ownership interest in the businesses and there  was
no  written  business  agreement.  She  explained  that  she  had
contemplated this move for a while and that the timing was  right
as  she  had  recently  retired from Alaska Airlines,  her  older
daughters  had  finished high school, and she  had  finished  her
masters degree in business administration.
          As   to   the  property  management  business,   Eniero
testified  that she and her parents were exploring right  now  to
see  whats  feasible  in terms of development  plans,  though  no
feasability  studies had been conducted.  As to the  planned  air
charter  business, Eniero explained that were  just  waiting  for
[FAA] certification before the business could open.  The business
had  one airplane.  Eniero testified that the plan is I will  get
paid.   Her father, Bert Young, testified that he thought  Eniero
would  be  paid a minimum of $25,000 a year.  He planned  to  pay
Eniero this money from air charter contracts that he expected  to
receive after the business received FAA certification.  This work
was  to be part-time and Eniero would have the opportunity to  do
unspecified  freelance work.  Until such time  as  she  could  be
paid,  Eniero  explained that she would live off of the  proceeds
from the sale of her home in Anchorage.
          Apart  from moving to Oregon for new job opportunities,
Eniero  testified  that  many of her  family  members  live  near
Lakeview.  She explained that she could travel with her  daughter
on  Alaska Airlines using flight benefits that were part  of  her
severance package.
          There   was   also  testimony  regarding  failures   in
communication  between Eniero and Brekke.  Brekke signed  Miranda
up for some extracurricular activities without consulting Eniero.
Eniero  faulted  Brekke for not informing her  when  Miranda  was
sick, such as when Brekke sent Miranda to school with a low-grade
fever,  Brekke  sent  Miranda to school  with  apparent  flu-like
symptoms,  and Brekke transferred Miranda to Eniero when  Miranda
had  a  number  of bug bites or a rash on her back  (to  document
this  last  event, Eniero drew circles on her daughters  back  in
washable   marker  and  then  took  photographs).   Eniero   also
testified to difficulties talking on the phone with Miranda  when
Miranda  was with Brekke, due to time limits effectively  set  by
Brekke  and  Brekkes refusal to let Miranda use the  phone  in  a
private  area.   Brekke explained that Enieros demands  to  speak
with  Miranda  for  an  extended time on a nightly  basis  became
unreasonable.  Eniero also testified that Brekke took Miranda  on
out-of-town trips without providing an itinerary, as required  by
court  order.   Brekke responded that he thought the  order  only
applied  to out-of-state trips and, regarding one of his  out-of-
state  trips,  that he thought he gave Eniero enough  information
when he provided his mothers home telephone number.
          In  an  oral  decision the superior court analyzed  the
legitimacy  of  Enieros planned move and Mirandas best  interests
should  Eniero  move.  The court determined that Enieros  reasons
for  moving  to  Oregon  were  in part  legitimate  and  in  part
illegitimate,   motivated  by  the  desire   to   limit   Brekkes
involvement  in  Mirandas life.  In the best interests  analysis,
the  court  found that stability and continuity favored  Mirandas
staying  in  Anchorage  and  that  Brekke  was  more  willing  to
facilitate  and  encourage  a close and  continuing  relationship
between the other parent and the child.  The court concluded that
if Eniero decided not to move to Oregon, then the current custody
situation would remain in place.  But if Eniero moved to  Oregon,
Brekke   would  receive  primary  physical  custody  of  Miranda.
Miranda  then  would stay with Brekke during much of  the  school
year  and  would be with Eniero during much of the summer.   This
oral  decision was later reduced to written findings of fact  and
conclusions of law and a modified custody order.
          Eniero appeals.
III. DISCUSSION
     A.   The Superior Court Properly Applied the Law.
          The  superior court had concerns about the motives  for
Enieros  planned  move  to  Oregon.   The  court  questioned  the
economic  viability of Enieros plan and further  determined  that
Eniero  was  not  required to move to  Oregon  to  care  for  her
parents.  Though the court found two legitimate reasons  for  the
move  Enieros desire to live closer to her family and a desire to
get  away from Brekke  the court concluded that part of [Enieros]
motive [for the move] is a desire to limit Mr. Brekkes ability to
be involved in his daughters life.
          Eniero  contends  that the superior court  employed  an
improper  standard when analyzing the legitimacy of  the  reasons
for  her  move.  Eniero argues that she was not required to  show
more  than  a desire to get away from Alaska, be near family,  or
educate her child in another state.  We independently review  the
relevant legal standards employed by the superior court.2
          We  have set forth a two-step approach for analyzing  a
custodial  parents  desire to move out-of-state  with  a  child.3
First,  the  superior  court must consider  if  reasons  for  the
planned move are legitimate.  A move is legitimate if it was  not
primarily  motivated by a desire to make visitation .  .  .  more
difficult.  4   Second, if the move is legitimate,  the  superior
court  must  analyze  the  best interests  of  the  child5  while
assuming that the planned move has already occurred.6
          The  primarily  motivated standard used  in  the  first
prong  of  the  test  should  not be read  to  suggest  that  any
illegitimate reasons for a move must be ignored so long as  those
reasons  are  not the primary motivation for the move.   While  a
court  should not find a parent less willing to promote  an  open
and  loving  relationship between the child and the other  parent
because  of  a legitimate move,7 we have not suggested  that  the
best interests analysis cannot take into account how a move would
exacerbate  problems  such  as a parents  willingness  to  foster
communication between the child and the other parent.8  Indeed we
have warned that [p]arents must be cognizant that their plans  to
relocate may negatively affect maintenance of custody because  of
the  impact  of the move on the child.9  Thus, even motives  that
are  not  the  primary motivation for a move can  be  taken  into
account in the best interests analysis.
          In  this  case, the superior court found two legitimate
reasons  for  Enieros  move and did not  find  that  the  primary
motivation for the move was illegitimate.  The court proceeded to
the best interests analysis.  In the best interests analysis, the
court  explained  that Enieros illegitimate  motive  of  limiting
Brekkes  involvement  in  Mirandas  life  was  a  factor  in  its
determination.10  We conclude that the court properly  considered
Enieros  illegitimate motives when considering the best interests
analysis.
     B.   The Superior Court Did Not Abuse Its Discretion when It
          Concluded that Mirandas Best Interests Would Be  Served
          by Staying with Brekke If Eniero Moved.
          
          After   determining  that  Enieros  planned  move   was
legitimate   not  primarily motivated by an illegitimate  purpose
the  superior court analyzed Mirandas best interests  should  the
move  occur.  The court concluded that most of the statutory best
interest factors did not favor either parent.  It found that both
parents were able to meet their daughters needs, that Miranda was
too  young  to form a parental preference, and that both  parents
love Miranda and that Miranda loves her parents.  The court noted
that  Miranda has a stable life in Anchorage and determined  that
keeping  Miranda  in  this environment was preferable  to  moving
Miranda  to a new environment.  The court also found that  Brekke
demonstrated a greater willingness to facilitate and encourage  a
close and continuing relationship between Eniero and Miranda than
Eniero  had demonstrated with respect to the relationship between
Brekke  and Miranda.  The court further determined that it  would
be  easier  for Eniero to visit Miranda in Alaska than Brekke  to
visit  Miranda  in Oregon due to Enieros family  and  friends  in
Anchorage  and  Brekkes lack of family or  friends  in  Lakeview.
Eniero argues that the superior court abused its discretion  when
it  concluded  that the best interests analysis favored  Mirandas
placement with Brekke.  We review custody determinations  for  an
abuse  of  discretion.11  We will overturn  the  superior  courts
factual findings only if those findings are clearly erroneous.12
          1.   The ability of each parent to meet Mirandas needs
          Eniero argues that she demonstrated that she was better
able  to  meet  Mirandas needs than Brekke and that the  superior
court  erred  when  it concluded that both parents  were  equally
capable of meeting Mirandas needs.  She points out that under the
terms  of the former custody agreement she had the ultimate power
to  make  medical and educational decisions.  She  also  contends
that  Brekke  failed  to  notify her  of  Mirandas  illnesses  or
ailments.
          Enieros  arguments do not convince us that the superior
court  abused its discretion.  With regard to her final say  over
decisions,  Eniero ignores the terms of the prior  custody  order
providing Brekke a voice in any major decisions.  And, given  the
week-on,  week-off  shared physical custody  arrangement,  Brekke
regularly  interacted with Miranda and had sufficient opportunity
to learn of her needs.
          Enieros  claim  about  the lack of  communication  from
Brekke  to  Eniero about Mirandas illnesses largely ignores  that
          the superior court addressed this issue.  The court concluded
that  both parents defined illness differently and that they both
had different approaches for treating illnesses.  The court found
that  both  approaches were valid.  Though Eniero  believed  that
Brekke  should  have told her when Miranda was  sick,  the  court
determined  that  communication, while probably appreciated,  was
not required given the minor nature of Mirandas ailments.
          2.   Stability and continuity
          The  superior court concluded that Miranda  has  had  a
stable  life  in Anchorage and that it was desirable to  maintain
continuity  in Mirandas life.  The court noted that [o]ften  when
parents are conflicted the school can be the one safe harbor  for
kids  to go to.  The court also found that [m]aintaining the same
home at dads house is a benefit as well.
          Eniero  argues  that the superior court erred  when  it
found  that  it  was  more desirable for  Miranda  to  remain  in
Anchorage.   While  the continuity of care factor  examines  both
geographic  and  relational stability,13 Eniero argues  that  the
court  placed  too  much weight on geographic stability.   Brekke
responds  that  considerations of both emotional  and  geographic
continuity favored him.
          Eniero  claims  that  Oregon  would  provide  a  stable
environment  for Miranda.  She found a good school  in  Lakeview.
Miranda  has  relatives in Oregon.  The superior  court  did  not
contradict these arguments, though the court did note that  there
was little testimony about how anxious people in the community of
Lakeview are to have Miranda there except for [Mirandas] cousin.
          Eniero further contends that Brekke would not provide a
stable  environment for Miranda.  She claims  that  Brekke  would
have  less time for Miranda than she would and that Miranda would
be  in  daycare,  or in Heather Brekkes care, if  she  stayed  in
Anchorage.  The court recognized that Eniero, presumably  due  to
her  part-time work schedule, was able to structure her  schedule
around Mirandas schedule.  But the court accorded more weight  to
stability provided by Mirandas current environment and determined
that  it  was desirable to maintain continuity by letting Miranda
stay in this environment.  We are not convinced that the superior
courts determination must be overturned.
          The  court  did not place too much weight on geographic
stability.   While  the court weighed geographic  stability,  the
court  also  noted  that whatever decision it reached  would  put
stress  on  Miranda.   Given this stress, the  court  found  that
providing  a safe harbor of familiarity, such as Mirandas  school
in  Anchorage, would be best for Miranda.  While keeping  Miranda
in  familiar  surroundings would typically  emphasize  geographic
continuity,14 the court took relational stability into account and
did not abuse its discretion.
          3.   Facilitating   and   encouraging   a   close   and
               continuing  relationship between Miranda  and  the
               other parent
               
          The  superior  court noted that there  continue  to  be
challenges  with  communication between the parents.   The  court
reviewed and commented on much of the testimony.  It stated  that
          the parents should allow private phone conversations between
Miranda  and the other parent.  But the court agreed with Brekkes
decision  to  limit  Enieros phone calls.  The  court  criticized
Eniero  for  not having Miranda call Brekke during  a  three-week
trip  to  Oregon.   With  regard to  medical  issues,  the  court
concluded  that  Brekke  was not required  to  inform  Eniero  of
Mirandas minor ailments but suggested that notification would  be
appreciated.  The court criticized Eniero for drawing circles  in
marker  on Mirandas back to document Mirandas rash or bug  bites,
especially  when the rash or bites could be treated at  home  and
healed  in  a short period of time.  Weighing this evidence,  the
court  concluded  that  Brekke  demonstrated  that  hes  doing  a
slightly  better  job  in facilitating and  encouraging  a  close
relationship  between Miranda and the other parent  than  Eniero.
It  noted that Dr. David Wilcox, who served as Eniero and Brekkes
counselor  for  court-ordered  co-parent  counseling  and   later
continued  to counsel Brekke individually, testified that  Brekke
demonstrated  a  greater willingness to have open  communication.
The  court  also noted that, despite Enieros professed scheduling
flexibility when it came to caring for Miranda, Eniero was unable
to  clear her schedule for counseling commitments with the  first
co-parenting counselor they selected, requiring that they find  a
counselor who had Friday appointments.  The court suggested  that
this  demonstrated that communication with Brekke was pretty darn
low  on the priority list for Ms. Eniero.  And that was troubling
to me.
          Eniero argues that the superior court accorded too much
weight to the testimony of Dr. Wilcox.  Dr. Wilcox testified that
Brekke  wanted to have more open communication with  Eniero,  but
that  Eniero  wanted limited communication.  The  superior  court
found  Dr.  Wilcoxs  testimony persuasive regarding  the  parties
level  of  cooperation.  Eniero argues that a court order  stated
that  communication should primarily be by e-mail,  meaning  that
her  desire  to  limit communication should not  have  been  held
against her.  But the court, when making the order, stated that e-
mail  was  the form of communication unless both [parties]  agree
otherwise.   Given  Enieros  planned  move,  the  superior  court
reasonably determined that Enieros reluctance to move  beyond  e-
mail   communication  could  hamper  Brekkes  relationship   with
Miranda.15
          Eniero  points  out  that the superior  court  did  not
mention  that  Brekke failed to attend one of the  court-mandated
counseling  sessions.  But Dr. Wilcox explained that this  was  a
scheduling  error and that Brekke merely arrived one  hour  later
than he should have.  The superior courts implicit acceptance  of
this testimony was within its discretion.
          Eniero  also contends that the superior courts  finding
that communication with Brekke was a low priority for Eniero  was
clearly  erroneous.   Eniero asserts that her  job  at  the  time
prevented her from having counseling sessions on any day  of  the
week but Friday.  Apart from Enieros failure to provide citations
to  the  transcript that support this claim, the  superior  court
could  have  reasonably rejected her contention based on  Enieros
professed  flexibility  in her schedule to  look  after  Miranda.
          This is especially true because Enieros employment was part-time.
          Eniero  finally claims that there are many examples  of
Brekkes  animosity  toward her.  She cites  Brekkes  decision  to
enroll Miranda in extracurricular activities without telling her,
Brekkes failure to provide complete itineraries of his trips with
Miranda,   Brekkes   refusal   to   approve   Mirandas   passport
application,  Brekkes limitation of phone calls  between  Miranda
and  Eniero,  and  Heather Brekkes alteration of Mirandas  school
registration form removing Enieros contact information.
          The  superior court discussed many of these issues  and
largely  rejected Enieros characterization of the testimony.   As
Brekke points out, the superior court found that Enieros frequent
phone calls with Miranda were stressful and that the steps Brekke
took  to  limit  Enieros  phone calls were  appropriate.   Brekke
likewise  had  an explanation for the changed school registration
records; the records were changed for the upcoming school year as
a  precautionary registration in case Miranda stayed in Anchorage
after  Eniero  moved to Oregon.  The superior court also  changed
the  itinerary requirement, explaining that a parent only  needed
to file an itinerary for air travel.
          As  Brekke  argues,  there is also evidence  suggesting
that  Eniero  failed to facilitate communication between  Miranda
and  Brekke.  For example, Brekke testified that phone  calls  he
made  to  Miranda  when she was with Eniero were never  returned.
The  superior  court also faulted Eniero for not  having  Miranda
call Brekke during a three-week trip to Lakeview.
          Finally, based on the weaknesses of Enieros reasons for
the move, the superior court could permissibly infer an unstated,
illegitimate motive of limiting Brekkes involvement  in  Mirandas
life.   Given  the  lack  of a business agreement,  the  lack  of
feasibility  studies  for any real estate development,  and  that
Enieros salary was dependent on an air charter business with  one
airplane  that had yet to receive FAA approval or any  contracts,
we  conclude  that  the  court did not abuse  its  discretion  in
evaluating Enieros move.
          4.   Ease of visiting Miranda
          As  an  additional  consideration, the  superior  court
found that it would be more difficult for Brekke to visit Miranda
in  Lakeview  during  the school year than for  Eniero  to  visit
Miranda  in Anchorage during the school year.  The court reasoned
that  Eniero had family or friends in the Anchorage area but that
Brekke did not have family or friends in the Lakeview area.   The
court   thus  concluded  that  Eniero  could  be  a  more  active
participant  in Mirandas life during the school year  if  Miranda
was with Brekke than Brekke could be in the alternate situation.
          Eniero  argues  that the superior courts conclusion  is
clearly  erroneous.  Eniero contends that she has  no  family  in
Anchorage other than her daughters, who live with her ex-husband.
She argues that the court erred when it assumed that Eniero could
stay with her ex-husband in Anchorage.
          Enieros  argument requires a selective reading  of  the
superior courts findings.  The court stated,And Ms. Eniero  would
have  the  benefit if she came up here to be able  to  stay  with
family  or  friends and  or, have family or friends here  and  be
able to really be a more active participant throughout the school
year,  as  well as in the summer, with her child.   The  superior
courts  reasoning is acceptable.  Eniero testified that  she  got
along  well  with  her  former husband who  lives  in  Anchorage.
Enieros   other  daughters  still  live  in  Anchorage.    Brekke
testified  that  he  liked Enieros former husband.  No  testimony
demonstrated that Brekke had connections to Lakeview.  While  the
superior  court did not appear to weigh this factor  heavily,  it
was appropriate to note the relative difficulty each parent would
have being involved in Mirandas life should Miranda live with the
other parent.
IV.  CONCLUSION
          We AFFIRM the decision of the superior court.
_______________________________
     1     The  daughters name has been changed  to  respect  her
privacy.

     2     Moeller-Prokosch v. Prokosch (Moeller-Prokosch I),  27
P.3d 314, 316 (Alaska 2001).

     3    McQuade v. McQuade, 901 P.2d 421, 423-24 (Alaska 1995);
see also Moeller-Prokosch I, 27 P.3d at 316.

     4     Moeller-Prokosch I, 27 P.3d at 316 (quoting  House  v.
House, 779 P.2d 1204, 1208 (Alaska 1989)).

     5    AS 25.24.150(c).

     6     Moeller-Prokosch v. Prokosch (Moeller-Prokosch II), 53
P.3d  152, 156-57 (Alaska 2002); Moeller-Prokosch I, 27  P.3d  at
317.

     7    Moeller-Prokosch II, 53 P.3d at 155.

     8     Moeller-Prokosch  I,  27 P.3d at  316-17  ([T]he  best
interests analysis necessarily will include assessing the  impact
of  the parents move on the child.); Fardig v. Fardig, 56 P.3d 9,
13  n.12 (Alaska 2002) ([T]he impact of any potential move may be
taken  into  consideration by the court  in  assessing  the  best
interests of the child.).

     9    Moeller-Prokosch I, 27 P.3d at 317 n.7.

     10     Accordingly, Enieros claims that the  superior  court
abused its discretion because it did not find a legitimate reason
for  her  move and that the court abused its discretion  when  it
found   that   Enieros  move  was  motivated  primarily   by   an
illegitimate purpose are without merit.

     11    McQuade, 901 P.2d at 424 n.9.

     12    Rodvick v. Rodvick, 151 P.3d 338, 343 (Alaska 2006).

     13    Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001).

     14     Notably, however, in Vachon v. Pugliese, we concluded
that  the continuity and stability factor favored the parent  who
left Alaska.  931 P.2d 371, 380 (Alaska 1996); see also Meier, 34
P.3d at 1279.

     15     We have recognized that communication is an important
consideration  when one parent is planning to  leave  the  state.
Silvan v. Alcina, 105 P.3d 117, 121 & n.9 (Alaska 2005).

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