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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Boulds v. Nielsen (4/25/2014) sp-6901

Boulds v. Nielsen (4/25/2014) sp-6901

         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, email  

                                                                                      

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



RAYMOND BOULDS,                                            )  

                                                           )    Supreme Court No. S-14887  

                            Appellant,                     )  

                                                           )    Superior Court No. 3PA-09-01717 CI  

         v.	                                               )  

                                                           )    O P I N I O N  

ELENA NIELSEN,                                             )  

                                                           )    No. 6901 - April 25, 2014  

                            Appellee.	                     )
  

                                                           )
  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                   

                  Judicial District, Palmer, Vanessa White, Judge.  



                  Appearances:            Kenneth        J.  Goldman,         Law     Office      of  

                  Kenneth        J.    Goldman,        P.C.,     Palmer,       for    Appellant.  

                  Marguerite  Humm,  Alaska  Legal  Services  Corporation,  

                  Anchorage, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                               

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  Raymond Boulds and Elena Nielsen were unmarried cohabitants for 16  



years and raised children together.  	When their relationship ended, they litigated child  

                        



custody and property ownership. The superior court determined which tangible personal  

                                               

                                              



property was domestic partnership property and divided that property equally between  

                                                                    


----------------------- Page 2-----------------------

                                                                                                 

the parties.  The superior court also considered three employment benefits that Boulds  



                                                                           

accumulated during his relationship with Nielsen:  an insurance death benefit, a 401(k)  



retirement account, and a union pension.  The court determined that the insurance death  



benefit  and  the  401(k)  retirement  account  were  not  domestic  partnership  assets  and  



                                                       

belonged  to  Boulds  alone.              But  the  court  determined  that  the  union  pension  was  a  



domestic partnership asset and was subject to division.  Because Boulds appealed to this  



court, the superior court has not yet issued an order dividing the union pension.  



                                                                                                

                   Boulds argues that federal law prohibits dividing his union pension with a  



                                                                                                      

non-spouse,  and  that  the  superior  court  misapplied  Alaska  law  by  examining  only  



                                                                                                

Boulds's own initial intent to share the union pension with Nielsen for the benefit of their  



                                          

children.  We conclude that federal law does not bar Nielsen from receiving a share of  



                                                                                         

the union pension and that the superior court did not err in determining Nielsen was  



                                                                               

entitled to half of the union pension under Alaska law.  We therefore affirm the superior  



court's decision and remand for the final division of the union pension.  



II.       FACTS AND PROCEEDINGS  



                   Raymond  Boulds  and  Elena  Nielsen  began  cohabiting  in  1993  and  



separated in 2009; they never married.  Boulds and Nielsen have three children together.  



                            

Boulds also raised Nielsen's son from a prior relationship as his own child.  During their  



relationship, Boulds worked on the North Slope and Nielsen was a stay-at-home mother.  



                                                                       

Although  Nielsen  worked  as  a  waitress  when  the  parties  met,  she  began  receiving  



                                                                                                                    

disability income in 1996.  This money was spent on the household and children.  Boulds  



claimed Nielsen as a dependent on his taxes for at least some of the years they were  



together.  



                   During the relationship Boulds accumulated three employment benefits  



through his employer:  an insurance death benefit, a 401(k) retirement account, and a  



union  pension  governed  by  the  federal  Employee  Retirement  Income  Security  Act  



                                                             -2-                                                      6901
  


----------------------- Page 3-----------------------

               1  

(ERISA).     When  Boulds  was  first  hired  by  his  employer,  he  listed  Nielsen  as  his  



                                                                                                   

intended pre-retirement death beneficiary for the union pension, even though the form  



                                                                                                        

specified that only a spouse, child, parent, or sibling could be listed.  Boulds's employer  



                                                                 

told him approximately one year later that he could not list a cohabitant.  He then listed  



his children as the beneficiaries.  



                                                                                                                

                    After the relationship ended the parties engaged in a series of child custody  



                                                                     

and property division proceedings. Trial was held on several days from December 2010  



                        

to June 2012.   The superior court entered findings of fact and conclusions of law on  



August  30,  2012,  incorporating  its  July  28,  2011  oral  property  division.    The  court  



determined  that  the  employment  death  benefit  and  401(k)  account  were  Boulds's  



                                                                                                          

separate property and that the union pension was partnership property. The court divided  



the domestic partnership assets equally, but has not yet issued an order dividing the  



union pension.  



III.      DISCUSSION  



                                                  

                    Boulds argues that the superior court erred in determining that Nielsen was  



entitled to part of his union pension for two reasons:  (1) ERISA prohibits division of a  



                                                                      2 

                                                                        and (2) the court erred by determining  

federal retirement account with a non-spouse; 



          1         29  U.S.C.    1001-1461  (2006).    ERISA  governs  payment  of  federal  



pension plans to individuals other than the pension holder (termed "alternate payees"),  

id.  1056(d)(3)(A), and defines a "qualified domestic relations order" as "creat[ing] or  

                                                                                                                

recogniz[ing] the existence of an alternate payee's right to . . . receive all or a portion of  

                                                                 

the benefits payable with respect to a participant under a plan," id.  1056(d)(3)(B)(i).  

                                                                            

An "alternate payee" is defined as "any spouse, former spouse, child, or other dependent  

                                                                                                        

of a participant who is recognized by a domestic relations order as having a right to  

                                 

receive . . . the benefits." Id.  1056(d)(3)(K).  



          2  

                                                  

                    ERISA's effect on division of a retirement account is a question of law we
  

                                                                                       

review de novo.  Madonna v. Tamarack Air, Ltd. , 298 P.3d 875, 878 (Alaska 2013)
  

                                                                                                               (continued...)
  



                                                               -3-                                                         6901
  


----------------------- Page 4-----------------------

                                                                                                           3  

that the parties intended the union pension to be a partnership asset.   We conclude  



neither argument has merit.  



          A.        ERISA  



                    ERISA prohibits assignments of pensions except pursuant to a qualified  



                                                     4  

domestic relations order (QDRO).   ERISA defines a QDRO as a domestic relations  



                                                                                            

order that "creates or recognizes the existence of an alternate payee's right to, or assigns  



to an alternate payee the right to, receive all or a portion of the benefits payable with  



                                                        5  

                                                                       

respect to a participant under a plan,"                   and that fulfills several other requirements which  



                                              6  

                                                                                 

are not disputed in this appeal.                A domestic relations order "[r]elates to the provision of  



. . . marital property rights to a spouse, former spouse, child, or other dependent of a  



          2         (...continued)  



(citing Curran v. Progressive Nw. Ins. Co., 29 P.3d 829, 831 (Alaska 2001)) (statutory  

                            

interpretation reviewed de novo).  "[W]e adopt the rule of law that is most persuasive in  

                                                                                                        

light of precedent, reason, and policy."  Wood v. Collins, 812 P.2d 951, 955 n.5 (Alaska  

                                                                                       

 1991) (quoting  Langdon v. Champion , 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (internal  

                                                                          

quotation marks omitted)).  



          3  

                                       

                    "When two people reside together in an intimate relationship, the property  

                                                              

they acquire while cohabiting should be distributed according to the parties' express or  

implied intent."  Jaymot v. Skillings-Donat , 216 P.3d 534, 544 (Alaska 2009) (citing  

                                                                              

Bishop v. Clark , 54 P.3d 804, 811 (Alaska 2002)).  We determine the parties' intent by  

applying law to facts,  a  de  novo review.  Id. (citing Bishop , 54 P.3d at 810-11, 811 n.11).  

In the absence of an express agreement, we " 'closely examine the facts in evidence to  

determine what the parties implicitly agreed upon.' "  Id. (quoting Bishop , 54 P.3d at  

                                                                                    

811).  



          4         29 U.S.C.  1056(d)(1), (3).  



          5         Id.  1056(d)(3)(B)(i)(I).  



          6         See id.  1056(d)(3)(B)(i)(II), (d)(3)(C)-(D).  



                                                               -4-                                                         6901
  


----------------------- Page 5-----------------------

                   7  

                                                       

participant."         "Alternate payee" as used in the definition of a QDRO is identical to the  

categories of recipients listed in the domestic relations order definition.8  



                                                                              

                    Boulds argues that the superior court lacked authority to award any of the  



union pension to Nielsen because "it is illegal under ERISA," which Boulds argues  



                              9  

                                                                                               

preempts state law.   We assume Boulds is contending that  cohabitants cannot hold  



               

"marital property" and that Nielsen does not qualify under the enumerated domestic  



                                                                                        

relations order recipient categories.  Boulds is incorrect.  The superior court did not err  



when  it  divided  the  union  pension  between  cohabitants  under  Alaska  law,  and  this  

outcome is not inconsistent with ERISA.10  



                                                                                                                    

                    The Court of Appeals for the Ninth Circuit examined a similar situation in  



                                                               

Owens v. Auto Machinists Pension Trust, which concerned an unmarried couple who had  



          7         Id.  1056(d)(3)(B)(ii)(I).  



          8         See id.  1056(d)(3)(K) (alternate payee is "any spouse, former spouse,   



child, or other dependent of a participant").  Given this, Boulds apparently only disputes   

whether the QDRO will satisfy the prerequisite definition of a domestic relations order.  



          9         Boulds also argues that the division is not permitted under Alaska law  



                                                                                                   

because authority for courts to divide pensions comes from AS 25.24.160(a)(4) and is  

                                                                                                               

strictly limited to dividing pensions between formerly married couples.  We made clear  

                                                                          

in Bishop that AS 25.24.160(a)(4) applies only to married couples, and does not apply  

                                                                                                

to cohabiting couples. 54 P.3d at 812.  But in Reed v. Parrish we upheld a trial court's  

determination   that   many   assets,   including   a   retirement   account,   were   domestic  

partnership assets.  286 P.3d 1054,1057-58 (Alaska 2012).  There is no reason under  

Alaska law to hold that the union pension is not subject to distribution under domestic  

                                                                     

partnership law.  



          10  

                                                                                                                 

                    We are not quick to find preemption.  In Clauson v. Clauson we cautioned  

                                                                                                     

against using federal law too freely, noting that the U.S. Supreme Court "has refused to  

override state law unless preemption is 'positively required by direct [federal] enactment'  

     

or the particular law does 'major damage' to 'clear and substantial' federal interests."  

831 P.2d 1257, 1262-63 (Alaska 1992) (alteration in original) (quoting Hisquierdo v.  

Hisquierdo , 439 U.S. 572, 581 (1979)).  



                                                                -5-                                                         6901
  


----------------------- Page 6-----------------------

                                  11  

                                                                                             

cohabited for 30 years.               A Washington state court determined that the woman should  



receive half of the man's monthly payments from an ERISA-covered pension acquired  



                                   12  

during  the  relationship.               When  the  woman  sought  her  portion,  the  pension  fund  



administrator notified her that because the couple had not been married, the trial court's  



                                                          13  

                                                              The woman filed and prevailed on a declatory  

order was not enforceable under ERISA. 



                                                                                                                 

judgment action in federal district court, and the plan administrator appealed to the Ninth  

Circuit.14  



                                                                                             

                    The Ninth Circuit started its analysis by noting that ERISA only recognizes  



orders that relate to "marital property rights" and concern an "alternate payee," which  



                                                              15  

                                                                  The case therefore turned on the meaning  

is defined to include an "other dependent." 



of "marital property rights" and whether the woman was an "other dependent."  The  



court reasoned that because federal law does not define "marital property rights," the  



                                                                                  16  

court  must  apply  Washington  law  to  define  the  term.                             The  court  concluded  that  

"Washington recognizes quasi-marital relationships for purposes of property division."17  



          11        551 F.3d 1138, 1139-40 (9th Cir. 2009).
  



          12       Id. at 1141.
  



          13       Id.
   



          14       Id. at 1141-42. 
 



          15       Id. at 1144-46; see 29 U.S.C.  1056(d)(3)(B)(i)(I) (QDRO "recognizes the
  



existence of an alternate payee's right"); id.  1056((d)(3)(B)(ii)(I) (domestic relations  

order relates to "marital property rights"); id.  1056(d)(3)(K) (alternate payee includes  

"other dependent").  



          16        Owens, 551 F.3d at 1144-46.  



          17  

                                                                     

                   Id. at 1145 (citing In re Marriage of Pennington , 14 P.3d 764, 769 (Wash.  

                         

2000)); see also  Connell v. Francisco, 898 P.2d 831, 834-37 (Wash. 1995) (en banc).  



                                                             -6-                                                      6901
  


----------------------- Page 7-----------------------

It explained that Washington acknowledges that these quasi-marital relationships occur  



                                                                                                  

when the relationship is stable, cohabitative, and both parties know they are not lawfully  

            18  Washington limits property division between cohabitants to what would have  

married.                                    



                                                                         19  

been possible " 'had the parties been married.' "                            The Ninth Circuit concluded that  



                                                                

because Washington allows property to be distributed after a cohabitative relationship  



                                                                                              20  

                                                                                                  Under Washington  

ends, the state provides "marital property rights" to cohabitants. 

law, the pension was a "marital property right."21  



                              

                   Next, the court looked to the Internal Revenue Service's definition of an  



"other dependent" to determine whether the woman was an "other dependent" under  



            22  

ERISA.            The  Internal  Revenue  Code  defines  "other  dependant"  to  include  "[a]n  



                                                      

individual (other than . . . the spouse . . . of the taxpayer) who, for the taxable year of the  



                                                                                                                       

taxpayer, has the same principal place of abode as the taxpayer and is a member of the  



                                   23  

                                                          

taxpayer's  household."                  The  Ninth  Circuit  held  that  the  woman  was  an  "other  

dependent" as defined by the IRS, and therefore an "alternate payee" under ERISA.24  



                                                                 

                   We adopt the Ninth Circuit's reasoning.  First, we ask whether Alaska  



provides a "marital property right" to cohabitants.  Alaska, like Washington, provides  



          18       Id. 
 



          19       Id. (quoting Connell, 898 P.3d at 836).
  



          20       Id . at 1146. 
 



          21       Id . at 1145.  



          22       Id. at 1146.  



          23       I.R.C.  152(d)(2)(H) (2012).  



          24        Owens, 551 F.3d at 1147.  



                                                             -7-                                                       6901
  


----------------------- Page 8-----------------------

                                                                                                            25  

for marital-like property distribution following a cohabitative relationship.                                   Whether  



                                                                                                     

Nielsen and Boulds's  relationship satisfies the requirements necessary for their property  



                                                                                

to be "marital" for ERISA's purposes under Alaska law is addressed below.  We then ask  



                                                                                                      

whether Nielsen falls into one of the qualifying classes of payees under ERISA.  Boulds  



claimed  Nielsen  as  a  dependent  on  his  taxes  and  they  shared  a  residence;  Nielsen  



therefore  qualifies  as  an  "other  dependant"  under  I.R.C.    152(d)(2)(H),  one  of  the  

                                                                          26   Boulds's argument that an order  

classes of  alternate payees permitted under ERISA.                           



dividing the union pension cannot meet the requirements of 29 U.S.C.  1056(d)(3)(B)  



                                                 

therefore fails.  Federal law does not preclude distribution of part of the union pension  



                                                                           

to Nielsen, provided Nielsen is entitled to it under Alaska law.  We now address this  



question.  



          B.       The Parties' Intent  



                                    

                   We  made  clear  in  Bishop  v.  Clark  that  the  first  step  in  dividing  an  

                                                                                       27  We quoted our adoption  

                                                                                                 

unmarried couple's property is to examine the couple's intent. 



of the Oregon Supreme Court's standard that " 'a division of property accumulated  



                                                                   

during a period of cohabitation must be begun by inquiring into the intent of the parties,  

                                                                                                                  28   We  

and  if  an  intent  can  be  found, it should  control  that  property  distribution.'  " 



summarized the types of evidence courts have reviewed when determining explicit and  



implicit intent:  



          25       See, e.g.,  Bishop v. Clark,        54 P.3d 804, 811 (Alaska 2002); Wood v. Collins,  



812 P.2d 951, 956 (Alaska 1991).  



          26       29     U.S.C.           1056(d)(3)(B)(i)(I);            id.        1056(d)(3)(B)(ii)(I),            id.  



 1056(d)(3)(K).  



          27       54 P.3d at 811.  



          28  

                                                                                                                           

                   Bishop , 54 P.3d at 811 (quoting  Wood, 812 P.2d at 956 (quoting Beal v.  

Beal , 577 P.2d 507, 510 (Or. 1978) (en banc))).  



                                                            -8-                                                      6901
  


----------------------- Page 9-----------------------

                   In   determining   the   intent   of   cohabiting   parties,   courts  

                    consider,  among  other  factors,  whether  the  parties  have  

                    (1) made joint financial arrangements such as joint savings or  

                                                                           

                    checking accounts, or jointly titled property; (2) filed joint  

                   tax  returns;  (3)  held  themselves  out  as  husband  and  wife;  

                                                                                             

                    (4)  contributed  to  the  payment  of  household  expenses;  

                    (5) contributed to the improvement and maintenance of the  

                    disputed  property;  and  (6)  participated  in  a  joint  business  

                                  

                   venture.    Whether  they  have  raised  children  together  or  

                                                                          [29] 

                   incurred joint debts is also important.  



                   In the present case, the superior court expressly applied Bishop to determine  



                                                                                                                  

the parties' intent with respect to various assets and debts.  The court held that the union  



pension was intended to be a partnership asset and thus subject to division between  



Boulds and Nielsen.  Specifically, the court explained:  



                                      

                   Mr. Boulds did, at one point in time during the relationship,  

                                                     

                   list Ms. Nielsen as his beneficiary for this policy.  That . . . is  

                    significant evidence to this Court of his intent to hold that  

                                                     

                    asset as a partnership asset.  Now Mr. Boulds has testified  

                   that that was not his intent, that his intent was merely . . . to  

                   list Ms. Nielsen so that when she received the benefit, she  

                    could use it for the benefit of the children.  



                             And I heard that testimony, but it doesn't really change  

                   my   analysis   because   that   testimony   tells   me   that   he  

                    considered her to be a trusted partner in that he would trust  

                   her to use the benefit for the benefit of their children.  And so  

                                                                                                  

                   that demonstrates to me that there was an intent for them to  

                   work together toward a mutual goal, a [meritorious] goal, the  

                                                       

                   protection of their children, the financial protection of their  

                    children.  And so I find that Ms. Nielsen has met her burden  

                                                                                            

                    of proof to establish that the [union pension] is a partnership  

                                     

                    asset.  



          29       Id. at 811 (citations omitted).  



                                                             -9-                                                       6901  


----------------------- Page 10-----------------------

Boulds contends that the superior court misapplied Bishop by considering only his intent,  



                        

when case law  requires that both parties' intent be examined.  In Boulds's view the  



                                                                            

required intent is "akin to a 'meeting of the minds' in contract theory."  Boulds makes  



                               

much of the fact that Nielsen was uninvolved in the couple's financial decisions, Nielsen  



did not contribute directly to the union pension, and listing Nielsen as a beneficiary to  



                

the union pension "was a unilateral act which Nielsen only became aware [of] after it  



                                                                                                              

was done according to her testimony."  We reject Boulds's assertion that evidence of  



Nielsen's intent or knowledge with respect to the particulars of the parties' financial  



situation is necessary to determining intent under Bishop .  



                                                                                      30  

                    Our holding in Reed v. Parrish is instructive.                        There we explained that  



                                                             

"the [Bishop ] factors are not exclusive; they reflect the factual circumstances of the  

         31   Today we further clarify that the intent of the cohabiting parties as articulated  

case."       



in Bishop does not mean that each party's intent necessarily must be analyzed separately  

                                                             



                                                        32  

for every individual piece of property.                     In some cases, the parties' intent with respect  



to all or broad classes of property will be easy to infer based on evidence that "the parties  



               

formed a domestic partnership and intended to share in the fruits of their relationship as  



                                                                                             33  

                                                                                                  We emphasize that  

though married, justifying an equal division of their property." 



simply living together is not sufficient to demonstrate intent to share property as though  

                                                                                        



married,  and,  moreover,  that  parties  who  intend  to  share  some  property  do  not  



          30        286 P.3d 1054 (Alaska 2012).  



          31       Id. at 1058 (citation omitted).   



          32       When we have focused on a single asset it was because the parties have  



disputed only one asset.  See, e.g., Tolan v. Kimball, 33 P.3d 1152, 1154-56 (Alaska  

                             

2001) (examining whether parties intended house to be partnership asset).  



          33       Reed , 286 P.3d at 1057.  



                                                            -10-                                                       6901
  


----------------------- Page 11-----------------------

                                                   

presumptively intend to share all property - even when the Bishop factors tilt heavily  



                                                                                                            

toward finding partnership property, other evidence may show that the parties had no  



                                                                                                     

such intent for particular pieces of property.  But when the parties have demonstrated  



through  their  actions  that  they  intend  to  share  their  property  in  a  marriage-like  



                                                                                                                      

relationship, a court does not need to find specific intent by each cohabitant as to each  



piece of property.  



                    The superior court's determination that the parties intended to share the  



                                                                                                   

union pension as if they were married, like they shared their other property, was not in  



error.  There was testimony that the parties wore wedding and engagement rings at  



various times.  The court heard undisputed testimony that Boulds supported Nielsen  



                                                                                                                

financially.  Boulds claimed Nielsen as a dependent on his taxes for at least some of the  



years they were together.  Boulds worked outside the home, while Nielsen worked inside  



                                                                                               

the  home  raising  their  children.    Boulds  apparently  took  on  much  of  the  financial  



                                                                                                  

responsibility for the couple, while Nielsen saw to other matters.  Boulds listed Nielsen  



                                                         

as  his  intended  pre-retirement  death  beneficiary  until  he  was  told  she  could  not  be  



         34  

             The superior court concluded that the couple had a common goal of using the  

listed.                                                                          



pension fund to finance raising the children.  Ample evidence "support[s] a finding that  

              



          34        Our  holding  does   not   rest   on  the   fact   that   Nielsen  was   listed  as  a  



beneficiary; there was ample evidence before the superior court that the parties intended  

to share the union pension under Bishop , even if Boulds had never listed Nielsen as his  

                                                                                                    

beneficiary.  We note that under this analysis, Boulds's 401(k) account actually may  

have been partnership property as well.  The superior court concluded that the 401(k)  

was Boulds's alone because there was no evidence in the record that he had ever listed  

Nielsen as a beneficiary.  Such a listing is not necessary when there is sufficient evidence  

                                     

showing  that  under  the  Bishop  factors  the  couple  intended  to  share  property.    But  

               

because the ownership of the 401(k) account was not cross-appealed, we do not reach  

this question.  



                                                             -11-                                                        6901
  


----------------------- Page 12-----------------------

the parties were in a domestic partnership and intended to share property as though  

married."35  



                   Boulds  also  implies  that  the  superior  court  erred  when  it  held  that  the  



parties intended to share the union pension without making specific findings supporting  



each of the Bishop factors.  Such specific findings are not necessary.  We will remand  



                                                                                                            

for additional fact-finding when "there are not sufficient findings to allow our review of  



                                  36  

                                                                                           

.  .  .  the  parties'  intent."        But  that  is  not  the  case  here.    The  superior  court  made  



sufficient findings of intent for our review; it applied Bishop and concluded that the  



                                                               

parties intended to share the union pension.  The superior court's analysis was correct.  



IV.      CONCLUSION  



                                                                                                           

                   We AFFIRM the superior court's determination that Nielsen is entitled to  



half of Boulds's union pension and we REMAND for the superior court to determine  



             37  

payment. 



         35       Reed , 286 P.3d at 1057.  



         36       Jaymot v. Skillings-Donat , 216 P.3d 534, 546 (Alaska 2009).  



         37        If there is concern that the pension administrator will refuse to honor the  



domestic relations order even in light of Owens v. Auto Machinists Pension Trust, 551  

F.3d  1138,  1147  (9th  Cir.  2009),  discussed  supra  pp.5-8,  the  court  may  require  an  

        

equalization payment from Boulds to Nielsen reflecting the present value of her share of  

the union pension.  



                                                         -12-                                                       6901  

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