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DEE ANN CURTIS GALLAHER
v.
CURTIS J. ELAM
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Appeal from the Juvenile Court for Knox County No. B-3443 Carey Garrett, Judge
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Wayne Decatur Wykoff, Knoxville, Tennessee, for the Appellant, Dee Ann Curtis
Gallaher. L. Caesar Stair, III, Knoxville, Tennessee, for the Appellee, Curtis
J. Elam. Paul G. Summers, Attorney General & Reporter, and Stuart F. Wilson-Patton,
Senior Counsel, Office of the Attorney General, Nashville, Tennessee, for the Intervening
Petitioner, State of Tennessee.
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The opinion of the court was delivered by: Houston M. Goddard, Presiding Judge
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This is an appeal by the State of Tennessee from a determination of the Juvenile Court
of Knox County which held Tenn. Comp. R & Regs. 1240-2-4-.03(4), issued pursuant to
T.C.A. 36-5-101, unconstitutional as violative of Section 1 of the 14th Amendment to the Constitution
of the United States. Dee Ann Curtis Gallaher also appeals, contending that
the Trial Court was in error in setting child support. We
affirm the Trial Court in its finding the Regulation in question unconstitutional and
vacate the judgment as to child support.
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Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part;
Vacated in Part; and Remanded
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Houston M. Goddard, P.J., delivered the opinion of the court, in which D. Michael
Swiney, J., joined. Herschel P. Franks, J., filed a dissenting opinion.
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OPINION
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The principal issue raised in this appeal is whether the following rule and regulation
promulgated by the Department of Human Services, pursuant to T.C.A. 36-5-101, violates the
Equal Protection Provision contained in Section 1 of Amendment 14 to the United States Constitution:
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Children of the obligor who are not included in a decree of child support
shall not be considered for the purposes of reducing the obligor's net income or in
calculating the guideline amount. Tenn. Comp. R & Regs. 1240-2-4-.03(4).
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Because the facts are undisputed and only a question of law is presented for our
review of the Trial Court's finding the foregoing rule and regulation unconstitutional is
de novo without a presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d
26 (Tenn. 1996).
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Jacob Dylan Gallaher was born to Dee Ann Curtis Gallaher on August 25,
1993. Blood test results show a 99.76 percent probability that Curtis J.
Elam was the father of Jacob. An agreed order was entered on September 27, 1994, declaring
him to be such and establishing child support at $750 per
month.
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At the time of conception of Jacob, Dr. Elam was married and the father of three
children. At a hearing before the Referee in which Ms. Gallaher was seeking additional child
support, the Referee increased the child support
to $2100 per month, and ordered Dr. Elam to pay $200 per month as additional support
because the father exercised no visitation privileges.
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Dr. Elam appeals the Referee's decision to the Juvenile Court. The Juvenile Judge
entered an order holding the guidelines in general violated the Doctrine of Separation of
Powers and the specific guideline in question violated the Due Process and Equal
Protection Clauses of the State and Federal Constitutions. He thereupon
awarded child support in the amount of $1600, the amount Ms.
Gallaher testified was necessary for Jacob's support, plus an additional $200 because the
father did not exercise his visitation rights. Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993).
Finally, he ordered $15,000 to be placed in a trust fund by Dr. Elam for the benefit of
Jacob.
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Both Ms. Gallaher and the State of Tennessee appeal the Trial Court's decision but
only the State addresses the constitutional issue.
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The State points out that there is a strong presumption that legislative acts and
those which include, under the holding of our courts, rules and regulations promulgated by
various departments of government are constitutional, and that every doubt
should be resolved in favor thereof. It also cites cases which hold that the Equal
Protection Clause guarantees all persons similarly situated will be treated alike, that in
this case we should not indulge in a strict scrutiny, but rather a "reduced scrutiny
or rational basis test," and that statutory classifications will be upheld if
"some reasonable basis can be found for the classification...or any state of facts
may reasonably be conceived to justify it." Riggs v. Burson, 941 S.W.2d 44
(Tenn.1997).
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We agree with the foregoing statement of law.
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We have found no Tennessee case which addresses the specific issue raised, but in one
case, State ex rel. v. Poteet, an unreported opinion of this Court filed in Nashville on
March 17, 1999, where the facts were the reverse in that the putative father of a child
born out of wedlock was ordered to pay child support without
considering the fact that he had three additional children by a subsequent marriage.
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This Court affirmed the action of the Trial Court in awarding the first-born child 21
percent under the guidelines and did not consider the other three children subsequently
born. In that case no constitutional issue was raised, but in a concurring opinion Judge
Koch strongly suggests that had it been raised the regulation in question could very well
have been held unconstitutional.
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The language Judge Koch used is instructive:
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There has been surprising little judicial consideration of the constitutional
legitimacy of the "first families first" bias inherent in child support
guidelines like the ones currently in effect in Tennessee. Only one court, in a very
cursory fashion, has held that the guidelines can withstand rational basis equal
protection scrutiny. See Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D. 1989). However,
this holding prompted a dissenting justice to observe that the classification between
children of a former marriage and children of a current marriage is "unconstitutional
because it discriminates against children of a `non-custodial' parent's second family,
denying them equal protection under the law. This statute classifies children by accident
of their birth, a classification that has no rational relationship to any legitimate
governmental interest." Feltman v. Feltman, 434 N.W.2d at 593-94 (Henderson. J.,
dissenting). Others have raised similar concerns, not only about the reasonableness of the
"first families first" bias but also about its effects on other fundamental
rights and interests of the non-custodial parent and his or her spouse. See Rebecca B.
Garland, Second Children Second Best? Equal Protection for Successive Families Under State
Child Support Guidelines. 18 Hastings Const. L.Q. 881 (1991).
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This issue involves a child's right to receive support from a common biological
parent. All children of the same parent have the right to share fairly with their siblings
in their common parent's resources. When other states have adopted child support
guidelines that accommodate this right, the Department cannot place administrative
convenience ahead of fundamental fairness. The Department cannot simply shrug its
bureaucratic shoulders and announce that it has done the best it can.
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Tennessee's child support guidelines contain the standards
by which they should be measured. Their stated purpose is "to make child
support awards more equitable by ensuring more consistent treatment of
persons in similar circumstances." Tenn. Comp. R. & Regs. r. 1240-2-4-.02(2)(b).
It should be apparent that the circumstances of children with a common biological parent
are similar. Accordingly, when this issue is properly raised in a future case, the courts
should put the guidelines' "first families first" bias to the test and should
carefully consider whether it passes muster under the state and federal constitutions.
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As already noted, the Juvenile Judge found that the provision violated the Equal
Protection Clause of the United States Constitution, as well as the Due
Process Clause and the Doctrine of Separation of Powers provision of the Tennessee Constitution,
which results in this appeal, wherein the constitutional issues are
addressed by the office of the Attorney General of this State.
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The Juvenile Court, in ruling on the Equal Protection feature of this appeal, relied
upon two dissenting opinions. One from the State of South Dakota, and the other from the
State of Florida. In both of those cases, the majority found that the applicable statute
should be viewed in the light of rational standard basis, rather than a suspect
classification or a fundamental right. In both cases it was the last-born child who was
given short shrift.
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In Feltman v. Feltman, 434 N.W.2d 590, 593 (S.D. 1989), Justice Henderson dissented
from the majority opinion upholding the South Dakota Statute, and used the following
language:
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Are children of a second marriage "children of a lesser god"?
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Are children of a second marriage lesser children under the United States Constitution?
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Are children of a second marriage any less hungry or naked without the support of
their father?
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Should we weep for children of a second marriage at their birth, rather than at their
death?
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This decision is reduced to an old adage, "First come, first served." In my
judgment, all of God's children, born of the first or second marriage, must be afforded
the same consideration under law.
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We have, before us, yet another case where the "guidelines chart" is
literally supreme. It is further noted, by this minority writer, that the majority
suggests, perhaps inferentially, that the priority of the child support
for the first marriage results in "imperfect results." Indeed, the law is not,
perfect, but as we write it, we should strive for its perfection.
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SDCL 25-7-7 is unconstitutional because it discriminates against children of a
"non-custodial" parent's second family, denying them equal protection under the
law. This statute classifies children by accident of time of birth; a classification that
has no rational relationship to any legitimate governmental interest. Conceptually, this
discrimination is as irrational, and hence unconstitutional, as discrimination against
illegitimate children.
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In Pohlmann v. Pohlmann, 703 So.2d 1121, 1128 (Fla.App. 5 Dist. 1997) Justice Harris
also dissented from the majority opinion upholding the Florida Statute in an equally
vigorous manner:
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The dissent in Feltman asks the question: "Are the children of a second marriage
children of a lesser god"? It also asks whether such children are lesser under the
United States Constitution; are they less hungry or less naked without their
parent's support" It finally asks whether we should weep for the children of a second
marriage when they are born instead of when they die? The dissent in Feltman's response to
these questions is that all children of the parent should be considered equal. The dissent
asserts, as do I, that the mere fact that discrimination is in the guidelines or in the
statute does not make it right, nor does it make it constitutional. Nor does
the fact that it is designed by some committee make it so. (Emphasis in original.)
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Even though it is a discomforting topic, perhaps we should consider the fairness
issue. Suppose it were the mother who was required to pay support to the children of her
first marriage. And assume that upon remarriage she elects to have additional children. By
doing so, she has voluntarily become unemployed rendering further child support
problematic. Assume further that she elects to become a stay-at-home mother to raise her
new children. The court would not, could not, and should not intervene. And there is a
good reason. The children of the first marriage simply have no more veto power over the
non-custodial parent's future reproductive decisions than a child of an intact marriage
has over his parents' decision to have additional children. And such children of the first
marriage, at least in my view, have no vested right to a higher standard of living based
on an allocation of a greater percentage of their parent's income than do the children of
a second marriage.
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Because the state has no business discriminating between children based solely on the
fact of a divorce, there is no legitimate state purposes in requiring a parent to allocate
his or her income more to one child than another. The state's attempt to do so is
state-mandated, court-enforced child abuse; it is not only cruel discrimination, it is
unconstitutional.
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We find the dissenting opinions more persuasive than the persuasive authority of the
majority opinions, and adopt the reasoning thereof in the disposition of this appeal.
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As heretofore noted, the Trial Court also found the regulation in question violates
the constitutional provision as to Due Process and the Doctrine of
Separation of Powers. However, in light of the disposition of the Equal Protection issue,
we do not deem it necessary to make a judgment as to the other grounds relied upon by the
Juvenile Judge.
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Having determined that the rule and regulation hereinbefore set out is constitutionally
infirm, we recognize that an appeal has been filed by the mother of the child in question
taking exception to the amount of support decreed by the Juvenile Judge.
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It appears that Dr. Elam's income for the year 1999, the last year figures were
available prior to the judgment below, is somewhat of an aberration, in that the proof
shows the doctor had considerably more income in the two preceding years. We believe it is
appropriate to remand the case for the Juvenile Judge to hear additional proof as to Dr.
Elam's net income as defined by the guidelines and then make the following awards: (1)
award for child support; (2) award for any arrearage which may be found; (3) if he finds
it appropriate, require an additional payment for the fact that the child's custody is
exclusively with the mother, and (4) if he finds it appropriate, establish a trust fund
for educational purposes.
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As to how the child support award should be calculated, it
appears there are perhaps two methods. Number one is to determine an award under the
guidelines for four children and make an award of one-fourth of that amount to Jacob. *fn1 The other method would be to determine the appropriate
amount under the guidelines for three children, deduct that amount from Dr. Elam's net
monthly income, and make an award to Jacob applying the guideline percent for one child.
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In view of the fact that the first-born three children are living in one household
rather than separate households, where household expenses would in large measure be the
same for one child as for three, it would appear the latter method would be preferable
under the facts of this case.
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For the foregoing reasons the judgment of the Juvenile Court is affirmed in part,
vacated in part, and the cause remanded for proceedings not inconsistent with this
opinion. Costs of appeal are adjudged one-half against the State and one-half against Dr.
Elam.
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DISSENTING OPINION
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Tennessee Comp. R. & Regs. 1240-2-4-.03(4), promulgated by the Department of Human
Services pursuant to Tenn. Code Ann. §36-5-101 reads:
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Children of the obligor who are not included in a decree of child support
shall not be considered for the purposes of reducing the obligor's net income or in
calculating the guideline amount. In addition, these children should not be considered by
the court as a reason for deviation unless they meet the requirements of Rule
1240-2-4-.04(4).
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This Rule was found to be unconstitutional by the majority on the grounds that the
quoted provision "discriminates" against other children of obligor, and in this
case residing in the household of the obligor.
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I dissent from the majority's holding for several reasons. First, courts are
admonished not to decide constitutional questions unless it is
"absolutely necessary". Strait v. Burdin, 924 S.W.2d 82 (Tenn. 1996).
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The majority recognizes that the constitutional issue would not call for
a strict scrutiny analysis, but rather that the "reduced scrutiny or rational basis
test" is applicable. See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997).
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This record presents no factual basis for either the Trial Court or this Court to
reach the constitutional issue raised. One of appellee's arguments is that
the guidelines treat children differently who are subject to a support order, as opposed
to those who are not, because the child who gets a support
award gets a definite percentage of the obligor's income and there is no showing that the
others will get an equal amount. Appellee, however, has provided no evidence that this was
actually the case. The father has earned an average of approximately $300,000.00 per year
for the past five years, which puts him in the top 1% of income of all income tax filers. *fn2 The three children living with the father enjoy a very
high standard of living, including private schools at the cost of $3,000.00 per month,
reside in a home with a monthly mortgage payment of $3,800.00, and have access to
expensive motor vehicles, thereby enjoying an unreasonably high standard of living, while
the biological child which is subject to the guidelines must exist on a small fraction of
such benefits. The facts of this case demonstrate that this child, if anything, gets
unequal treatment, vis a vis the marital children. Yet the majority addresses the constitutional
issue and holds the above-mentioned regulation unconstitutional, without citing any case
authority for its position, but misguidedly relies on two maudlin dissents from other
jurisdictions for its decision.
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It is the duty of this Court and all courts to uphold a statute if the statute is not
purely arbitrary. Epstein v. State, 366 S.W.2d 914 (Tenn. 1963).
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The guidelines state they were enacted to comply with federal and state requirements,
and that some of the goals behind the enactment of the same were to "decrease the
number of impoverished children living in single parent families", to "make child
support awards more equitable by ensuring more consistent treatment" of
similarly situated individuals, to provide guidelines to parties and the courts and to
improve the efficiency of the court process, and to "ensure that when parents live
separately, the economic impact on the child(ren) is minimized and to the extent that
either parent enjoys a higher standard of living, the child(ren) share(s) in that higher
standard." Tenn. Comp. R. & Regs. 1240-2-4-.02. The guidelines also provide that
they are to be applied as a rebuttable presumption, and that if the court finds sufficient
evidence to rebut the presumption, it can make a different award so long as the court
makes specific findings regarding why the guideline amount is inappropriate, and so long
as the court consider the best interests of the child. Tenn. Comp. R. & Regs.
1240-2-4-.02(7).
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The dissenting opinions that the majority relies upon assert that the guidelines are
unwise and are inequitable. However, our Supreme Court has stated that it is not
authorized to strike down a statute that the court may consider unwise or inequitable, but
the statute must create a real deprivation of constitutional rights. Baldwin
v. Knight, 569 S.W.2d 450 (Tenn. 1978).
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These guidelines provide a multitude of valid reasons for their existence, including
equity and predictability of child support awards and, more
importantly, to ensure children are not adversely impacted because their parents do not
live together. The guidelines ensure that children who do not live with the parent who
makes substantial sums of money, will get the benefit of the parent's higher income, just
as if they lived in the parent's household. While it is true that this child's mother can
pay for basic necessities on her income of $36,000.00 per year, it certainly does not
provide a standard of living anywhere near that of the father's three other children, who
enjoy the benefits of an income of ten times that amount or more in some years than this
child's mother earns.
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The application of the guidelines in this case is fair, and does not treat this child
any better than the other children. In fact, if it were not for the guidelines, this child
would certainly be treated much worse than the other children, as has been aptly
demonstrated by the father's vehement resistance to paying child support
in this case. *fn3 Even with the guideline support, this
child will likely not have all of the material things enjoyed by the other children. Thus,
there is no disparate treatment. Given the circumstances of the case, there can be
deviations from the guidelines, since they are just a rebuttable presumption. In this case
if the father could show that the child support in accordance
with the guidelines would cause a negative impact on his other children and create
economic hardship, then the court has the authority to order a downward deviation. The
guidelines expressly provide for this in Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and
state that the court may consider such an action as necessary to "achieve equity
between the parties". With this "escape valve" provision in place, there
can be little argument that the guidelines create disparate treatment, since the court has
the authority to consider hardships which would affect the other children. *fn4
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I would uphold the guidelines as constitutional and resolve every doubt
in favor of constitutionality. Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997);
In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct. App. 2000). Also, as this Court has
previously recognized, the guidelines have been before our Supreme Court on many occasions
and no concern has been expressed regarding their constitutionality. See
State ex rel. Armstrong v. Coleman, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing
State, ex rel. Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991); Nash v. Mulle, 846 S.W.2d 803
(Tenn.1993); Jones v. Jones, 930 S.W.2d 541 (Tenn.1996); Brooks v. Brooks, 992 S.W.2d 403
(Tenn.1999).
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I would reverse the Judgment of the Trial Court and enter Judgment in accordance with
the guidelines.
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Herschel Pickens Franks, J.
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Opinion Footnotes |
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*fn1 This was the method employed by this Court in
the case of Adams v. Reed, 874 S.W.2d 61 (Tenn. Ct. App. 1993), which was decided prior to
the promulgation of the regulation here under siege.
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*fn2 Source: IRS data supplied to Congress; 1999
adjusted gross income of $293,000.00 up, puts taxpayer in the top 1% of income of all
filers.
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*fn3 Some individuals only learn through experience
the reality of the ancient Appalachian folklore, that if you dance you have to pay the
fiddler.
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*fn4 The restriction in the guidelines as to
children not in the decree goes to establishing the guideline percentage and not whether
their support would create a hardship on the obligor.
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