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Wilson v. Phillips

Court of Appeals of Tennessee, Nashville

November 15, 2017


          Assigned on Briefs September 1, 2017

         Appeal from the Circuit Court for Marion County No. 16894 J. Curtis Smith, Judge

         The trial court denied mother's petition to make her the primary residential parent of the parties' three children. Based upon this court's review of the facts, we have concluded that the trial court erred in assessing the best interest of the children and reverse the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded

          Kathryn R. Leiderman, Jasper, Tennessee, for the appellant, Priscilla Brooke Wilson.

          Jerry B. Bible, Jasper, Tennessee, for the appellee, Patrick Shane Phillips.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.



         Factual and Procedural Background

         Patrick Shane Phillips ("Father") and Priscilla Brooke Wilson ("Mother") are the parents of three children, Candace Amaya Phillips (born September 2003), Kendyl Mariah Phillips (born April 2005), and Kamryn Layla Phillips (born April 2005). Father filed for divorce in August 2006 and obtained a default judgment on May 1, 2007. In the final decree of divorce entered on May 1, 2007, the trial court granted Father a divorce on grounds of inappropriate marital conduct and abandonment, awarded him primary custody of the three minor children, and incorporated the Father's proposed parenting plan, pursuant to which Mother had 125 days of parenting time per year. Mother had parenting time with the children the last full week of each month from Sunday at six p.m. until the following Sunday at six p.m. Mother also had the children during the months of June and July, with the exception of the third full week. Mother was ordered to pay child support in the amount of $75.01 per week. The plan provided for joint decision-making.

         In November 2009, the court entered a modified parenting plan reflecting an agreement of the parties. Under the new parenting plan, Mother had 107 days of parenting time per year. She had parenting time with the children every week from Friday at 2:00 p.m. until Monday at 7:30 a.m. When school was not in session, Mother had the children from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Father had the children the first full weekend each month. Mother was to pay $515.00 per month in child support.

         In December 2011, Father filed a petition for contempt and to modify the parenting plan. Mother filed a response and counter-petition. In an order entered on August 15, 2012, the trial court found that "the proof was evenly divided between the parties" and that the evidence did not support any change to the existing order. As to Father's allegations that Mother was in arrears on child support and had failed to pay her portion of medical bills, the court found that "the proof was not sufficient to support [Father's] allegations."

         Mother filed the petition at issue in this appeal on June 28, 2016. In her petition, Mother sought a finding of contempt, a modification of custody, and a restraining order. Mother alleged that Father was in contempt of the November 5, 2009 permanent parenting plan for "making unilateral decisions regarding the children's non-emergency healthcare, religious upbringing, and extracurricular activities, " "fail[ing] and refus[ing] to provide [Mother] with a copy of his health insurance card for the children, " and "intentionally violat[ing] [Mother's] rights set forth in T.C.A. § 36-6-101, including, specifically, subsections (1), (5), (6), (7), (8), and (9)." Mother alleged the following substantial and material changes of circumstances which justified a modification of the primary residential parent and the parenting schedule:

(a)[Mother] has remarried and now lives in Dade County, Georgia;
(b)The children have a close and loving relationship with [Mother's] spouse/their step-father and his children;
(c)Both [Mother's] and [Father's] work schedules have changed. As a result of [Father's] work schedule the minor children spend much of their time in the care of their step-mother;
(d)The minor children are now going through puberty;
(e)[Father] and his wife are mentally and physically abusive to the children;
(f) [Father] does not adequately or properly attend to the children's medical needs;
(g)The oldest child's grades have suffered; and
(h) [Father] and his current wife frequently yell and fight with each other in the presence of the children.

         Mother requested a restraining order based upon allegations of mental and physical abuse of the children by Father and his wife, "including, slapping, choking, jabbing in the throat, unjustified and excessive spanking, downgrading the children, making derogatory remarks about [Mother] to the children, and using profane names in reference to the children's extended family."

         Father filed an answer and counter-petition to modify. He included an application for a restraining order against Mother with a verbatim restatement of the allegations contained in Mother's application for a restraining order. After a hearing on July 5, 2016, the trial court entered restraining orders against both Mother and Father. The orders include the following language: "[Mother/Father] is hereby restrained and enjoined from discussing these proceedings with the minor children and from permitting [her husband/his wife] doing so."

         The trial of this matter took place over three days in July and August 2016. The court heard testimony from Mother, Father, the children's stepfather, their paternal grandmother, and the children, Amaya, Kamryn, and Kendyl.

         Testimony of witnesses

         1. Mother

         Mother testified that Amaya was almost thirteen years old, and Kamryn and Kendyl were eleven. Mother was married to Kevin Wilson ("Stepfather"), who had two daughters of his own. She testified that their relationship began with a few dates in December 2012. Mother and Stepfather resided in Trenton, Georgia.

         Mother stated that, at the time of the last modification hearing, in August 2012, she and her previous husband, Mr. Reed, lived in Chattanooga and were still together. According to Mother, Father's attorney asked her at that hearing about her relationship with the children, about Mr. Reed's relationship with the children, and about whether she and Mr. Reed were getting along. Mother testified that, at the time of the hearing, she and Mr. Reed "were getting along okay." She stated that Mr. Reed had trouble handling the conflicts between Mother and Father and withdrew from Mother during the hearing. After the hearing, Mr. Reed moved out and filed for divorce based on irreconcilable differences. Mother was awarded the house, [1] which was encumbered by debt, and she declared bankruptcy in 2013. Mother testified that she "had a substantial amount of identity theft on my credit from my mother and from credit cards that she had taken out."

         She further stated that the house had more debt on it that it was worth because of declining home values in the neighborhood.

         Mother introduced photographs of her home with Stepfather. They lived in a four-bedroom home with two bathrooms on a one-acre lot. Kamryn and Kendyl shared a bedroom; Amaya shared a bedroom with her stepsister, Alyssa.

         At the time of the 2012 hearing, Mother was employed at U.S. Xpress in Chattanooga, where she worked from January 2008 through March 2014. Her hours were from 7:00 a.m to 4:00 p.m. or 8:00 a.m. to 5:00 p.m. at the office, with no flexibility to work at home. Mother stated that she left that job because the company wanted to change her work shift so that she worked more hours, and Mother wanted to have more time to spend with her children. Mother then became an independent contractor for UTi Transportation, a job that allowed her to work from home and gave her greater flexibility. The job did not pay as well as advertised, and Mother left UTi in June 2015. She then began working as a commercial account manager for Orkin Pest Control in July 2015, a salaried position that also paid commissions. Mother had a scheduled office meeting from eight to nine on Monday morning; otherwise, she worked from home and scheduled on-site inspections with potential customers.

         Mother testified that Father's work schedule had changed. He was no longer available during the day, and his wife, Sonia Phillips ("Stepmother"), also worked during the day. When the children were not in school, they were cared for during the workday by Stepmother's mother or Father's mother. Mother asked to be able to care for them, but she had only been allowed to have parenting time with the children once during the workweek.

         Mother testified that her three girls were "very fond" of Stepfather and his two daughters, Alyssa and Kylee. Mother stated:

The girls [Amaya, Kamryn, and Kendyl] go to [Stepfather] a lot to learn new things. They ask him how to do things. For example, they asked [Stepfather] about swimming. [Stepfather] taught them how to swim. Bikes, riding bikes, they asked him about that. He taught them that. Kamryn is currently learning how to play the keyboard, and he is teaching her how to do that. He also assists them with softball all of the time at our house.

         Mother further testified that Kylee was seventeen and Alyssa had just turned twelve years old at the time of the hearing. Alyssa and the twins were going into the sixth grade. Mother described the relationship among the children:

They play actively all the time. Kamryn and Alyssa at times-they're siblings, so they play hard, and sometimes they don't want to speak. But Kendyl and Alyssa are inseparable at my house. If I've got a child in a room, the other one is right beside her. And then Amaya and Kylee are very attached to each other. Amaya talks to Kylee a lot.

         Mother stated that the children fought like typical siblings.

Mother described the family activities they did together:
Together we go and we practice softball at Jenkins field, which are the softball fields that are near our house. We ride bikes near our house. The girls all have a bike. We also go to the movies at least once per summer. We all take a movie trip together. We go out to eat together. We cook meals at home and eat dinner at home together. The girls do crafts frequently at home. Amaya paints. I help her with that. Kamryn is learning the keyboard. [Stepfather] helps her with that. Kendyl has a large interest in catching softball, and Kendyl and Alyssa work together for softball, even in our front yard, with [Stepfather] because Alyssa pitches. We have-there's just so much. We have family movie nights. The girls just sit in our living room and we chitchat. . . . We do so many activities together that it's really hard to list. Once per month we do go visit [Stepfather's] relatives . . . so that they can stay in touch with their new cousins that they fostered a large relationship with.

         Mother stated that "the girls, " Amaya, Kendyl, and Kamryn, historically had "great grades, " but that Amaya went through a period earlier in 2016 when she was concerned about her language arts grades. Amaya spoke to Mother, reported that she had two failing grades in language arts on a certain assignment, and Mother advised her to talk to the teacher about allowing her to redo the assignment. Amaya was able to replace the grades. She was also concerned about her math grades and asked to be able to attend some free after-school tutoring. Without consulting Mother, Father refused to allow Amaya to attend. Mother testified that she attempted to discuss the tutoring with Father at a softball game, but he did not acknowledge her.

         Asked what happened when she attempted to call the girls when they were with Father, Mother testified as follows:

Either the phone is not answered; or if I do get to speak with the girls, they are placed on speakerphone. They let me know that they are on speakerphone; or they are made to stay close by, and I can hear outside them being told that they have to stay close by. The phone conversations are also cut short. They're told that they have to go because they have to do homework or because they have to take a shower. It doesn't matter what time I call. There's always a reason they're cut short.

         According to Mother, the phone call monitoring had gotten worse since 2012. She stated that, due to Father's work schedule, most of the phone interactions had to be done through Stepmother, "and in that matter it's gotten a lot worse." Previously, Amaya had been able to communicate with Mother by Facetime on her iPad Touch. Mother stated that Amaya no longer had this capability.

         With respect to the children's extracurricular activities, Mother testified that Father did not involve her in the decision-making. Rather, she stated, Father and Stepmother made the decisions. They decided whether and when the girls would play a sport. Mother asked if she could take the girls to and from softball practice and games that year, but she was only allowed to do so one time during the season. She testified: "I would arrive at games and find out that someone outside of [Father and Stepmother] had taken the girls to games at times, and I was not asked." Mother testified that, from 2012 until the hearing, she was not consulted about decisions as to whether the girls were going to play a particular sport. When Father or Stepmother signed the girls up at the beginning of the season, they would not put her contact information on the sign-up sheets. Mother attended all but one of the girls' soccer games and softball games; she reported that Father attended few of Amaya's and Kendyl's softball games, and not more than two soccer games during the season.

         Mother testified that she "received very few communications about school activities." Father failed to inform Mother of events such as "academy receptions, plays that have happened during the school day, any reports that the children have presented in front of the classroom where parents are invited, [and] family reading nights." She only learned of these events after the fact.

         Mother testified that Father did not notify her of the children's medical appointments. She asked Father to allow her to take them to the doctor, to be allowed to be present, or to be advised of appointments. Mother either got "no response at all" from Father or he told her that she could not be present. For example, when Amaya was scheduled to have a root canal, Father told Mother that she could not be there because "only two parents were allowed, and . . . [Stepmother] was going to go." Mother asked again if she could be present, and Father said, "okay, fine, you take her." Mother agreed, but Father later changed his mind and would not allow Mother to be there because Stepmother wanted to be there. Mother went to the appointment anyway:

I went to the dentist visit. Amaya did not even know I was there. She wasn't allowed to come near me. I was boxed out. When the nurse said that two parents could go back, [Father] and [Stepmother] went back, and [Stepmother] cried. And [Father] boxed me out so that I could not go back.Amaya did not know I was there at all. The only thing that I could do was provide my insurance and payment.

         Mother further testified that Father's attitude regarding medical appointments was that, if it was not Mother's parenting time, she was not allowed to go. She was not informed of medical appointments until after they occurred. After requesting and reviewing the girls' medical records (submitted as exhibits at trial), Mother learned that all three had been given the HPV vaccine. She had not been consulted about this decision.

         The pediatrician's office notes refer to Stepmother as "mother" when she acted as the "historian" at office visits. In the patient registration records of Kamryn's dentist, Dr. Karim Hasnani, Stepmother signed as "patient, parent or guardian." Mother's name was not listed anywhere in the registration information. Stepmother completed the registration forms at the office of dentist Dr. Clay Goins in September 2012 and signed as "parent/guardian." She listed Mother's name, but she did not include any contact information. Stepmother also signed a "Consent for Treatment" form on behalf of Amaya.

         Mother expressed concern that Father did not take care of the children's medical needs, a concern that she did not have at the time of the hearing in 2012. Father did not take the children for regular dental cleanings. He did not take Kamryn for her regular six-month cleaning after she had a tooth repaired in November 2015. The dentist's notes state that Kamryn had "heavy calcium on lower anteriors with severe gingivitis." Mother was not advised of the dentist's recommendations regarding brushing and flossing. Amaya last had a dental appointment in April 2014 with Dr. Goins. Mother testified that "Amaya has a large gap between her two front teeth on top." Because of this gap, Mother felt that Amaya needed braces. Amaya was self-conscious and insecure about her teeth.

         When Mother tried to talk to Father about these issues or other medical concerns, he responded with "blank stares or scoffs." Because she did not have the children with her during the week, it was difficult for Mother to make medical appointments for them, but she did find a dentist who would do cleanings on Saturdays. Mother stated: "I'm frequently told no about keeping or seeing or taking the girls places unless it is, and I quote, my parenting time."

         With respect to the girls' vision, Mother testified that Amaya started wearing reading glasses in elementary school. Father did not allow her to bring her glasses to Mother's home. Amaya's glasses broke, but Mother did not know at the time when this occurred. Father did not replace the glasses. The glasses broke when Amaya was in fifth grade, a little over two years before the hearing. Mother tried to talk to Father about Amaya's glasses, but she "was met again with blank stares and walking off." When she did not get a response from Father, Mother would also try to talk to Stepmother, who was usually also nonresponsive. So, Mother took all three girls to have eye exams one weekend. She noted that Amaya had frequent headaches and that Kamryn complained of headaches and of having to be moved forward at school. Kamryn and Amaya were both given prescriptions for glasses, Kamryn's for distance and Amaya's for reading. Mother bought them both glasses. Father never responded to Mother's request to pay his share of the cost.

         Another medical issue of concern to Mother was acne on Amaya's face and back. This condition caused pain and self-consciousness for Amaya. Mother tried to speak to Father about Amaya seeing a dermatologist. She also purchased over-the-counter medications for Amaya's acne, but Father would not allow Amaya to use the medications at his house. Father would not cooperate with Mother about taking Amaya to a dermatologist.

         Mother testified that the only time she saw the children's report cards was "if the girls happen to get them on a day that I pick them up." Otherwise, she would have to go to the central office to get their grades. Mother requested the girls' school records and received them for the years 2012 through 2015. The custodial information shows Father and Stepmother. Mother's name and phone number do not appear anywhere on the school forms. Father did not produce any document showing that Mother was listed anywhere on the school records. Mother testified that she was not notified in October 2015 or March 2015 of parent-teacher conferences. Amaya was not permitted by Father to go on a Beta Club trip in the current school year; Father did not consult Mother about this decision, and she did not learn about the trip until the day of the trip. The twins went on a Beta Club trip earlier in the year that Mother did not know about until after the fact. Parents were permitted to go on these trips, and Mother testified that she would have participated had she been aware of the trips.

         Asked about changes she had noticed in the children, Mother stated that Kamryn "has become very anxious" and "is becoming very withdrawn." Mother observed that Kamryn would shake and cry when talking about things that worried her, and that she would sometimes put her hand over her face (giving the appearance, to Mother, that she thought she was going to be hit). Kamryn would talk to Mother about things that happened at Father's house when she would shake and cry. Mother believed that Kamryn and Amaya needed to see a therapist. These incidents had gotten worse over the past year and had been "nearly constant" over the prior six months.

         Mother described an incident when Kamryn awoke in the middle of the night and came upstairs to Mother's bedroom crying and shaking over concerns about the smoke detectors. Mother contacted Father and asked about the smoke detectors at his house; she received no response.

         Halloween was problematic for the family. Mother sent Halloween costumes to the school for the three girls to wear trick-or-treating. The girls had picked them out themselves. Kendyl was going to wear a homemade "minion" costume, with face and body makeup she had chosen herself. According to Mother's testimony, when she picked the girls up from school on Friday, Kendyl was crying. Her costume had been altered, and the makeup was unopened. Kendyl was wearing different makeup, which was hard to remove and stained her skin for several days.

         Mother purchased the twins dresses for their fourth-grade homecoming, but the dresses were returned to her from Father's house. The girls did not wear them to homecoming. Mother testified that the girls were crying when they brought back the dresses.

         Mother testified that, since 2012, the girls' attitudes about returning to Father's house after being with her over the weekend had changed. She had to coax them to leave her house; they would cry and hide and find ways to delay leaving. She recalled a recent time when she took the girls back and they saw that Father's car was not there. The girls were crying and did not want to go back; they got out of the car with some coaxing, went to the door, and then turned around and came back to the car. They sat in the car and talked and Mother calmed them down. After more coaxing, the girls finally got out and went in the house.

         Mother testified that she had talked to Father about how the girls were treated at his house as compared to the other children, how they were treated by Stepmother, and how they were disciplined. She asked him to stop hitting them. Father responded that the girls were exaggerating. Mother testified, "I've been ignored or scoffed at or walked away from."

         On cross-examination, Mother testified that, when discipline was necessary, the children were "either grounded or a privilege is taken away, or they have a lengthy discussion if it's something minor about what happened, how to fix it, how to keep it from happening again." Mother did most of the disciplining of the girls when they were with her; Stepfather "had a couple of discussions with the girls, but that's it." Mother testified that Alyssa had "received a couple of spankings from [Stepfather]. He does not spank my children at all." For the most part, Mother stated, the children were disciplined the same. She testified that they were all treated equally in her house.

         2. Amaya

         The parties' oldest child, Amaya, testified[2] that she would be thirteen in September of that year. She lived primarily with Father and Stepmother.Amaya testified that, just a few days before the hearing, Father and Stepmother told the three girls that Father and Stepmother "could get taken away to jail or Brionna and Zander [their stepsiblings] could get taken away, and like the reason we are in court right now is because we stir the pot."[3] The incident started when Kamryn pulled a wire out of Stepmother's bathing suit and Stepmother got mad; the girls told their grandmother that Stepmother got mad at them, and Stepmother found out that they had talked to their grandmother. This prompted Stepmother to talk to the girls about stirring the pot and to blame them for the current situation. After the July 5 court date (when the parties were instructed not to talk to the children about the case), Amaya heard Stepmother ask Kendyl and Kamryn, "Are you scared of me?"

         Asked how she was disciplined at their home, Amaya stated that she was usually spanked or grounded. When the children "back talked, " Father and Stepmother would "pop" the children in the mouth. This had occurred in the last four years. If Father or Stepmother felt that a child was not listening, he or she would tilt the child's head up with their index finger and thumb. Amaya testified that this tilting action was uncomfortable. When they administered a spanking, Father and Stepmother used, "switches, flyswatters, belts, hands, and if somebody is doing our-if, like, [Stepmother] is doing our hair and she has a hairbrush in her hand, she'll smack us with a hairbrush." They hit the children from the top of the thigh down the leg.

         Amaya recalled an incident during the past school year when she and Kendyl were arguing in Amaya's room and Stepmother overheard them. Stepmother kicked the door open. Amaya was standing behind the door; the door hit her and left a red mark on her back. Stepmother said: "I told you to stop arguing. I didn't kick you that hard, you little baby. Stop crying." She did not apologize. The incident left a hole in the door.

         There was an incident where Stepmother threw the dog out on the porch in his kennel while the three girls were watching. Amaya stated that the dog "limped for a little bit, " "like he wouldn't step on [his front paw]" after this happened.

         Amaya testified that Father stated that the girls could call Mother anytime, "but when it comes down to it, we don't really call her in the end." Amaya stated that, in reality, Father would "put us off until later, but then it never happens." When Mother would call the girls, Father or Stepmother would be in the same room "most of the time." Amaya had been able to communicate with Mother using iMessage and FaceTime, but Father and Stepmother discontinued the internet service after Amaya got angry with Stepmother (because she threw the dog out on the porch) and told Mother over iMessage with words and emojis.

         Amaya stated that she wanted to try out for "ball" the preceding fall and had asked Father and Stepmother. They would not allow it. Stepmother told her that they were going to see Stepmother's father in Florida and that Amaya "wasn't even that good anyways." Zander played football that fall, but the three girls were not allowed to play any sports that fall.

         According to Amaya, she had watched horror movies at Father's house a couple of times. When she was too afraid to make it through the entire movie, Stepmother called her a "chicken."

         Father and Stepmother would comment to Amaya that Mother did not pay for anything for her.

         Amaya testified that she had worn glasses for reading since the fourth grade. The summer after her fifth-grade year, her little brother broke her glasses. Mother replaced her glasses the month of the hearing. When Amaya tried to talk to her Father about replacing her glasses over the intervening two years, he would say, "We'll get them later." Amaya stated that not having her glasses affected her at school. When she had her old glasses, Father did not allow her to take them to Mother's house during the summer. When she went to Mother's house over the weekend, she would leave them in her backpack. With her new glasses, Mother allowed Amaya to take them to Father's house.

         Amaya stated that she generally had excellent grades but that her grades had dropped during the past year, which was a concern for her. She specifically had problems with her grades in history and math. She made a 70 on a history paper. Amaya testified that Father and Stepmother did not help her with her homework. After Mother saw her progress report, Amaya told her why her grades had dropped. Mother suggested that Amaya talk to her teacher and see if Amaya could redo the paper and "make up like some stuff that I didn't do quite well." Amaya talked to her teacher and she was able to replace the low grades. With math, Amaya stated that she was having "a hard time understanding some stuff" and her grades kept dropping. The school provided free tutoring to study for the TCAP, which included math tutoring, but Father would not allow Kendyl to attend the tutoring, so Amaya did not ask.

         Amaya testified that Stepmother referred to the girls' stepsister Alyssa (Mother's stepdaughter) as a "bitch." Stepmother told the girls that they should support their "real sister" by going to her ballgames rather than going to Alyssa's softball games. Amaya testified that she wanted to alternate and go to all of her sisters' ballgames, but she did not say this to Stepmother.

         Amaya testified that, when Father was not in the car and she and Kamryn wore their new glasses home from Mother's house, Stepmother told them she did not like their glasses. Specifically, she told them both that their glasses were "ugly." Amaya said this made her feel sad because she really liked the glasses. She said to Stepmother that the new glasses "were better than the ones I had last time because my last ones were kiddish. And [Stepmother's] like, oh, because your mom bought them for you and we bought the last ones."

         The following line of questioning took place regarding the children's care during the work week:

Q. Is your dad home a lot or is he gone quite a bit?
A. He's at work most during the week.
Q. Okay. And then who-does [Stepmother] work?
A. Yes, [Stepmother] works.
Q. Okay. So who keeps you girls when he and [Stepmother] are at work?
A. [Stepmother's] mom until like 12:00 in the afternoon.
Q. Like lunchtime?
A. Yeah. And then our nana comes, which is our dad's mom, until
[Stepmother] gets off of work.
Q. Does [Stepmother's] mother treat you well?
A. She treats Brionna better than-Brionna and Zander better than us, but otherwise she treats me okay.
Q. When you say she treats Brionna and Zander better than y'all, are you talking about you, Kamryn, and Kendyl?
A. Yeah.
Q. And they are her biological grandchildren?
A. Yes.
Q. Okay. Does [Stepmother's] mother smoke?
A. Yes.
Q. Does she smoke in your presence?
A. Yes.
Q. Does she have any difficulties getting around?
A. Yes.
Q. What are those?
A. Like she can barely walk.
Q. Does she have any walking aids or does she just walk-like a cane or-
A. A cane.
Q. When she's keeping y'all, who's caring for the younger children?
A. She is usually watching them and tells them no, and then I'm usually theone holding them back off of something.
Q. What do you mean by that?
A. Like Zander will be trying to get into the refrigerator but he's not supposed to, and I'll just sit him back down on the couch.
Q. I'm not sure if Judge Smith knows because I don't know if we've talked about that. How old are ...

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