               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-72

                                Filed: 2 October 2018

Pitt County, No. 12 CVD 641

WILLIAM S. CREWS, JR., Plaintiff

              v.

NYSA MARINDA PAYSOUR, Defendant.


        Appeal by defendant from orders entered 7 August 2017 by Judge G. Galen

Braddy in District Court, Pitt County. Heard in the Court of Appeals 5 September

2018.


        Kurtz Evans Whitley Guy & Simos, PLLC, by Jon B. Kurtz, for plaintiff-
        appellee.

        Tharrington Smith, LLP, by Steve Mansbery, for defendant-appellant.


        STROUD, Judge.


        Defendant appeals from an order establishing child support. The trial court

limited the presentation of evidence based upon a misapprehension of the law at the

only evidentiary hearing held in this case and received no additional evidence on

remand, and both parties have requested remand based upon several errors in the

order. The trial court also made findings of fact and conclusions of law on remand

regarding the time period after the hearing without receiving any new evidence. We

vacate the order and remand for a new evidentiary hearing and new order
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establishing child support and addressing the other issues discussed below, including

birth expenses, attorney fees, and any reimbursement or arrears of past prospective

child support payments needed based upon plaintiff-father’s actual payments made

prior to the hearing on remand and the child support as established by the new order

on remand.

                                    I.      Background

      The background of this case may be found in Crews v. Paysour,

                    Plaintiff William S. Crews, Jr. and Defendant Nysa
             Marinda Paysour are the parents of a minor child, but were
             never married. On 7 March 2012, Crews filed a complaint
             for child custody and child support. On 13 August 2012, the
             trial court entered an order for child support titled
             “Temporary IV-D Order” which stated this order is a
             temporary order for support by consent of parties and that
             both parties shall return to court upon motion filed by
             either party.
                    Applying the North Carolina Child Support
             Guidelines, the court ordered Crews to pay $898.00 per
             month in child support. This figure was based on Crews’s
             gross monthly income of $4,331.67.

___ N.C. App. ___, ___, 797 S.E.2d 380, *2-3 (March 21, 2017) (COA16-604)

(unpublished) (quotation marks and brackets omitted) (“Crews I”).

      Defendant-mother (“Mother”) and plaintiff-father (“Father”) were in medical

school when a temporary child support order was entered in 2012; the income of both

parties increased substantially after they completed their residencies.

                  On 5 May 2014, Paysour filed a notice of hearing for
             permanent child support and permanent custody. The trial


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               court held that hearing on 30 September 2014 and heard
               evidence on the parties’ incomes, expenses and other
               information relevant to the award of child support. After
               the hearing, the trial court sent a letter dated 4 December
               2014 to the parties’ counsel with a “Rendition of Judgment”
               from the child support hearing but not a written order
               awarding permanent child support.
                      Ultimately, the parties scheduled a conference with
               the court on 22 October 2015 regarding the entry of a
               written child support order. At the conference, the parties
               discussed the 4 December 2014 letter from the court and
               their draft proposed orders. The parties later submitted
               additional proposed orders and objections.
                      On 7 December 2015, the trial court entered a
               permanent child support order. In the order, the trial court
               made findings regarding both parties’ incomes and
               expenses. The trial court ordered Crews to pay $3,037.00
               per month in child support prospectively, and $23,529.00
               in child support arrears for the period from December 2014
               through October 2015, to be paid in monthly installments
               of $750.00. Crews timely appealed.

Id. at *3-4.

       Crews I was based upon Father’s appeal from the 7 December 2015 child

support order but it did not address all of the issues he raised. See id. at *5-7. Mother

conceded some errors argued by Father in his appeal. See id. at *6. Crews I did not

address the details of Father’s “series of arguments concerning the trial court’s

findings and resulting calculations concerning his child support obligations.” Id. at

*5.

       The first issue addressed in Crews I was Father’s argument regarding the trial

court’s subject matter jurisdiction to modify child support award; we determined the



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trial court had subject matter jurisdiction to act. See id. at *4-5. The second issue

addressed in Crews I was the calculation of non-guideline child support, but instead

of addressing the details of Father’s arguments regarding the findings of fact of the

numbers used in the calculation and how the support was calculated, we vacated the

child support order and remanded for entry of a new order “because the trial court’s

order expressly indicate[d] that the court was operating under a misapprehension of

the law—a fact conceded by [Mother] on appeal.” Id. at *5-6. This Court did not

address the details of the arguments regarding the actual calculation of the child

support, because “[t]he trial court’s analysis of those issues may be different when

applying the proper legal standard for a child support award in a high-income case

such as this one.” Id. at *7. We also directed that “[o]n remand, the trial court is free

to decide, in its discretion, whether additional evidence or a hearing is necessary, or

whether the case may be decided based on the existing record.” Id. On remand, the

trial court did not receive any additional evidence, but counsel for both parties

presented arguments regarding their proposed calculations of child support.

      Mother appealed from the order on remand, and once again, in this appeal,

although Mother is now the appellant and Father did not cross appeal, both parties

note various errors in the trial court’s calculation of child support, and Father

concedes that the order must be remanded at least on some issues.

      It is apparent from the record that much of the difficulty in this child support



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order was caused by the delay in entry of an order, and certainly the passage of more

time for appeals has only made matters worse.       The child support hearing was held

on 30 September 2014; this was the only evidentiary hearing. On 22 October 2015, a

hearing was held to address the fact that it was thirteen months after the hearing

and no order had been entered. The first order was entered 7 December 2015, over a

year after the hearing. The order on remand was entered almost three years after

the hearing. At the time of this opinion, over four years have passed since the

hearing. Based upon the variety of issues arising from the trial court’s order and the

need to remand, we will address a few key concerns of this Court.

                         II.    Lack of Competent Evidence

      Here, the trial court did not receive any evidence on remand, but despite the

lack of evidence entered findings of fact regarding child support payments. Mother

challenges these findings of fact as unsupported by the evidence, and since the only

evidentiary hearing was in September 2014, any findings about any events after

September 2014 are obviously unsupported by the record. At the hearing on remand

in May of 2017, the trial court discussed the child support payments since the first

order with counsel and counsel informed the court about these payments since the

prior order. And although counsel discussed the issue with the trial court, the parties

did not stipulate to amounts paid since the prior order or agree on how any

overpayment by Father should be addressed. And arguments of counsel are not



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evidence: “[I]t is axiomatic that the arguments of counsel are not evidence.” Basmas

v. Wells Fargo Bank, Nat. Ass’n, 236 N.C. App. 508, 513, 763 S.E.2d 536, 539

(2014)(citation and quotation marks omitted).

      Father argues that Crews I left it in the trial court’s discretion as to whether

to receive additional evidence on remand, so the trial court properly made findings

addressing the time period after the evidentiary hearing. But when this Court leaves

the matter of receiving additional evidence to the discretion of the trial court, this

does not mean that the trial court can make findings of fact regarding something not

addressed by the evidence at the hearing. It is equally axiomatic that findings of fact

must be based upon competent evidence. See Romulus v. Romulus, 215 N.C. App.

495, 498, 715 S.E.2d 308, 311 (2011) (“[W]hen the trial court sits without a jury, the

standard of review on appeal is whether there was competent evidence to support the

trial court’s findings of fact and whether its conclusions of law were proper in light of

such facts.” (emphasis added) (citations and quotation marks omitted)). When we

leave it in the discretion of the trial court as to whether to receive additional evidence

on remand, we mean only that the trial court may receive additional evidence on

remand if it determines this would be helpful, but the trial court is not required to

receive additional evidence on remand. See generally Holland v. Holland, 169 N.C.

App. 564, 572, 610 S.E.2d 231, 237 (2005). (“Additionally, on remand, the trial court

shall rely upon the existing record, but may in its sole discretion receive such further



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evidence and further argument from the parties as it deems necessary and

appropriate to comply with the instant opinion.” (citation and quotation marks

omitted)). Since the trial court is aware of the circumstances at the time of remand,

and we are not, we often leave this decision to the trial court’s discretion because it

is in a better position to determine how to proceed.

      In other cases, we limit the trial court’s discretion to some extent. For example,

we recognize the possibility that sometimes counsel for the parties may agree on

certain issues after remand so that no additional evidence is needed. We may also

allow the parties to determine if they need to present additional evidence. See, e.g.,

Lasecki v. Lasecki, 246 N.C. App. 518, 543, 786 S.E.2d 286, 304 (2016) (“We therefore

remand the case to the trial court for further proceedings consistent with this opinion

and direct that if either party requests to present additional evidence for the trial

court’s consideration on remand as may be needed to address the issues discussed in

this opinion, the trial court shall allow presentation of evidence, although the trial

court may in its discretion set reasonable limitations on the extent of new evidence

presented.”). And further, because of the specific issues addressed by the opinion,

sometimes we do expressly require additional evidence on remand. See, e.g., Dixon

v. Dixon, 67 N.C. App. 73, 79, 312 S.E.2d 669, 673 (1984) (“We do hold, however, that

the nature of child abuse, it being such a terrible fate to befall a child, obligates a

trial court to resolve any evidence of it in its findings of fact. This was not done and



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the order is therefore vacated and the case remanded for a new hearing on the issue

of custody.”) And in other cases, where the record contains sufficient evidence to

support the findings of fact and conclusions of law the trial court must make on

remand, the trial court must make the required findings based upon the existing

record without taking further evidence. See, e.g., Carpenter v. Carpenter, 225 N.C.

App. 269, 279, 737 S.E.2d 783, 790 (2013) (“On remand, the trial court shall make

additional findings of fact based upon the evidence presented at the trial.” (footnote

omitted)).

        But in any case, including this one, if no additional evidence is presented on

remand, the trial court can make its findings of fact and conclusions of law only based

upon the existing record. The order on remand can address only the facts as of the

last date of the evidentiary hearing because that is the only evidence in the record.

Evidence is always required to support findings of fact, unless the parties have

stipulated to the fact or the finding is subject to judicial notice, neither of which is

present here.1 Thus, we cannot review the order to determine if the findings of fact

are supported by the evidence because there is no competent evidence for the time



1 “N.C. Gen. Stat. § 8C–1, Rule 201 controls when the court may take judicial notice of adjudicative
facts. Rule 201 provides that a judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned. A fact is considered indisputable if it is so well established as to be a matter of common
knowledge. Conversely, a court cannot take judicial notice of a disputed question of fact.” Hensey v.
Hennessy, 201 N.C. App. 56, 68–69, 685 S.E.2d 541, 550 (2009) (citations and quotation marks
omitted).

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period covered by those findings of fact.

      We also note this case is unusual, particularly for a non-guideline child support

case, because during the September 2014 hearing, the parties presented little

evidence regarding their living expenses, minimal evidence regarding the child’s

needs and expenses, and they were only allotted thirty minutes each. Upon review

of the entire transcript and proceedings on remand, we are concerned that the trial

court’s misapprehension of the law, as discussed in Crews I, see Crews I, at *5-6, also

caused the trial court to limit the evidence presented at the hearing. The trial court

was “mistaken in Finding of Fact number 14 wherein the court cited Loosvelt v.

Brown as standing for the proposition that the amount of child support awarded could

not be in an amount lower than the maximum basic child support obligations.” Id. at

*6 (quotation marks and ellipses omitted).           In other words, based upon its

misinterpretation of Loosvelt, the trial court determined the guideline calculation

addressed all of the usual and ordinary living expenses of the child, so evidence was

needed only to address any needs above those basic needs deemed extraordinary

expenses. At the beginning of the hearing, the trial court stated this limitation on

the evidence:

             The Court: -- and I -- I gave, for the parties, I gave them the
             minimum standard amount under the law based upon your
             combined incomes is -- the reasonable needs of the child
             under the Guidelines will be $2,059. That means that’s
             what the Guidelines will say for a combined income of
             $25,000. Now, reasonable needs is going to have to be


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                proven beyond that 2,059 for me to consider something more
                ‘cause I can lean on that very heavily, even the Guidelines
                say that, so that’s going to kind of be the issue I'm going to
                be looking at, can it be established, you know, more than
                2,059, so, each side is going to have 30 minutes, and that
                includes witnesses, opening, closing. Do either of y'all want
                to make an opening or you just want to get right to your
                evidence?

(Emphasis added).

        Thus, in the hour of evidence and argument, the parties presented the evidence

as the trial court directed, and almost no evidence of the ordinary living expenses and

needs of the child. This case did begin as a guideline child support case, since in 2012,

both parties had lower incomes. See id. at *2. Although now this is a high-income

case, the only financial affidavit in our record is the one-page “Child Support

Financial Affidavit,” which includes only the numbers required to calculate guideline

child support:        monthly gross income; pre-existing child support payments;

responsibility for other children; work-related child care costs; health insurance

premium costs for the child; and other “extraordinary [c]hild-[r]elated expenses.”2 As

directed by the trial court at the beginning of the hearing, much of the evidence was

about the extraordinary expenses such as Father’s travel costs and lessons for soccer,


2  The entry for “[p]re-existing [c]hild [s]upport [p]ayments” on this form by Father was likely the
reason for the trial court’s error in the first order, since Father listed his temporary child support
obligation for this child. The pre-existing child support payments as intended on the affidavit would
be a child support obligation for another child of the parent completing the affidavit. There is no
evidence of other child support obligations or other children. In the Crews I order, the trial court found
that “The Plaintiff should also get half credit for existing child support payments of $898.00 per month,
or $450.00 rounded up.” But $898.00 was Father’s temporary child support obligation, not support for
another child.

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music, and swimming.        Accordingly, the misapprehension of law may explain the

evidence, and lack thereof, in the record.

       In a non-guideline child support case, the trial court must consider the needs

of the child, specifically based upon the “accustomed standard of living” of that child,

and must make findings of fact to address these needs:

                where the parties’ income exceeds the level set by the
                Guidelines, the trial court’s support order, on a case-by-
                case basis, must be based upon the interplay of the trial
                court’s conclusions of law as to (1) the amount of support
                necessary to meet the reasonable needs of the child and (2)
                the relative ability of the parties to provide that amount.
                The determination of a child’s needs is largely measured by
                the accustomed standard of living of the child.

Smith v. Smith, 247 N.C. App. 135, 145–46, 786 S.E.2d 12, 21 (2016) (citations and

quotation marks omitted). On remand, based upon the evidence presented at the

original hearing and on remand, the new order should include the required findings

of fact to address the financial circumstances of both parties and the reasonable needs

of the child.

                            III.   Effect of Holding of Crews I

       And we have one more general concern. Based upon the trial court’s comments,

the trial court may have been under the impression that because this court vacated

and remanded the first order, we approved Father’s arguments regarding various

findings in the first order, including the amounts of travel costs and medical

insurance costs challenged by Mother in this appeal. In other words, this appeal is


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largely a mirror image of the last appeal on these issues. Father was the appellant

from the first order and challenged certain findings, see Crews I, *1-7, and Mother

was the appellant in this appeal and challenged findings on some of those same

issues, since the findings are in accord with Father’s arguments in the first appeal.

But this Court did not address the findings of fact in Crews I; we addressed only the

legal error. See id. at *7. So if the trial court made any findings in the order on

appeal based upon the belief this Court tacitly approved Father’s arguments in Crews

I, the trial court again made the findings of fact under a misapprehension of the law

of the case.

                                   IV.    This Appeal

       Finally, we have reviewed Mother’s arguments in this appeal, and, without

addressing each in detail, some have merit, including obvious mathematical errors in

the order.

A.     Mathematical Errors

       The trial court noted in the findings it would allocate half of the cost of Mother’s

lease and car payment to the child’s needs but actually included the entire amount.

Also, the trial court found it would allocate the parties’ responsibility for the child’s

needs based upon their percentages of the total income, so 53.41% of the child’s

support would be allocated to Mother and 46.59% to Father. But the trial court gave

Father a “credit” against his percentage of the child’s expenses for the full amount of



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the travel expenses for visitation, which means that Mother bears responsibility for

100% of the travel expense, not her percentage based upon her income. Although we

do not endorse the arguments on appeal of either party on the correct calculations of

the medical insurance costs and travel expenses, these calculations were issues in

both appeals and in the order after remand, the trial court should make its findings

and mathematical calculations on these issues clear.

B.    Pregnancy and Birth Expenses

      Mother brought a counterclaim for the expenses under North Carolina General

Statute § 49-15, and Father concedes she presented evidence of these expenses at the

trial. The trial court did not address this claim at all, and again even Father concedes

the trial court “should have . . . addressed” the issue. On remand, the trial court shall

address this claim.

C.    Attorney Fees

      Mother also sought attorney fees in her answer and counterclaims. The trial

court made only two findings regarding her claim for attorney fees:

             38.      Defendant submitted an Attorney Fee Affidavit
                      which contained billing for this proceeding as well as
                      evidence of counsel fees paid to Attorney Amy
                      Edwards during the prior proceeding in this cause.

             39.      Since both parties appear to be on fairly equal status
                      as to their abilities to provide for the child, the Court
                      declines to award counsel fees in this matter.

      Mother argues that the “trial court erred by failing to make adequate findings


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of fact and any conclusions of law regarding [Mother’s] claim for attorney’s fees.”

                    In an action or proceeding for the custody or support,
             or both, of a minor child, including a motion in the cause
             for the modification or revocation of an existing order for
             custody or support, or both, the court may in its discretion
             order payment of reasonable attorney’s fees to an
             interested party acting in good faith who has insufficient
             means to defray the expense of the suit. Before ordering
             payment of a fee in a support action, the court must find as
             a fact that the party ordered to furnish support has refused
             to provide support which is adequate under the
             circumstances existing at the time of the institution of the
             action or proceeding; provided however, should the court
             find as a fact that the supporting party has initiated a
             frivolous action or proceeding the court may order payment
             of reasonable attorney’s fees to an interested party as
             deemed appropriate under the circumstances.

N.C. Gen. Stat. § 50-13.6 (2011) (emphasis added).

      Although the amount of an award of attorney fees is in the trial court’s

discretion, whether Mother has met the statutory requirements for an award of

attorney fees is a question of law. See Atwell v. Atwell, 74 N.C. App. 231, 237, 328

S.E.2d 47, 51 (1985) (“While whether the statutory requirements have been met is a

question of law, reviewable on appeal, the amount of attorney’s fees is within the

sound discretion of the trial judge and is only reviewable for an abuse of discretion.”)

The trial court did not make the required findings of fact to allow us to review the

denial of attorney fees, and findings of fact are required to show the basis for either

the award or denial of attorney fees:

                    Where an award of attorney’s fees is prayed for, but


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             denied, the trial court must provide adequate findings of
             fact for this Court to review its decision. Although the trial
             court denied Ms. Diehl’s request for attorneys’ fees, it made
             no findings relating to that denial, such as whether Ms.
             Diehl acted in good faith or whether she had insufficient
             means to defray the expense of the suit. Consequently, we
             must remand for entry of proper factual findings to support
             the trial court’s decision regarding Ms. Diehl’s request for
             attorneys’ fees.

Diehl v. Diehl, 177 N.C. App. 642, 653, 630 S.E.2d 25, 32 (2006) (citation and

quotation marks omitted).

      Under North Carolina General Statute § 50-13.6, the trial court must make

findings addressing (1) whether mother is an interested party; (2) whether she was

acting in good faith; (3) whether she had insufficient means to defray the expenses of

the suit; and (4) whether the party ordered to pay support. Here, Father refused to

provide support adequate under the circumstances existing at the time of institution

of the action. See N.C. Gen. Stat. § 50-13.6. The trial court’s findings should address

each of these four factors. See Gibson v. Gibson, 68 N.C. App. 566, 575, 316 S.E.2d

99, 105 (1984) (“Under the principles set forth in Hudson, supra, however, this action

is one for support only and the additional finding requirement of G.S. 50-13.6 is

thereby invoked. Our examination of the judgment discloses that the trial court did

not find that plaintiff has refused to provide adequate support under the

circumstances existing at the time the action was initiated. Such a finding is required

in order to award attorney’s fees in this case. Its absence compels us to vacate the



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award of attorney’s fees and remand this case for additional findings as required by

G.S. 50-13.6. We note incidentally that the expenses on which the award of counsel

fees was based appear to relate solely to defendant’s child support claim.”)

      Based upon the evidence, it appears Mother may have met the “statutory

requirements of G.S. Sec. 50–13.6” but the trial court made no findings on these

factors. Atwell, 74 N.C. App. at 237, 328 S.E.2d at 51. Mother presented evidence

that at the time of institution of this action, she was still in medical school, receiving

public assistance, and had a much lower income. In fact, the initial child support

order against Father was entered in a IV action brought on Mother’s behalf. Mother

testified that she had to borrow money from her brother to pay her attorney fees.

      On remand, the trial court may either allow or deny an award of attorney fees

in its discretion, but it still must make the findings of fact required for appellate

review. See Diehl, 177 N.C. App. at 653, 630 S.E.2d at 32. The trial court must

consider whether Mother was “unable to employ adequate counsel in order to proceed

as litigant to meet the other spouse as litigant in the suit. If the action is for child

support alone, there must be an additional finding that the party ordered to furnish

support has refused to provide support which is adequate under the circumstances

existing at the time of the institution of the proceeding.” Belcher v. Averette, 152 N.C.

App. 452, 454-55, 568 S.E.2d 630, 632 (2002) (citations and quotation marks omitted).

The trial court made no findings about whether Father had provided “support which



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is adequate under the circumstances existing at the time of the institution of the

proceeding” or Mother’s ability to employ counsel to defend against Father in this

action. Id. On remand, the trial court shall make findings of fact regarding Mother’s

claim for attorney fees under North Carolina General Statute § 50-13.6, keeping in

mind that it must consider the circumstances at the time of institution of the action,

as to whether Father was providing support adequate under the circumstances at the

time of institution of the proceeding, and may also consider current circumstances in

its discretion. See generally id. We express no opinion on whether the trial court

should or should not award attorney fees; that decision is in the trial court’s

discretion.   But whatever the decision, the trial court must make the required

findings of fact for either a denial of attorney fees or an award of attorney fees.

D.    Summary

      Based upon the lack of an evidentiary hearing since September 2014, possible

misinterpretations of Crews I, the mathematical errors, the failure to address all of

Mother’s claims, and the failure to make necessary findings of fact for Mother’s

attorney fee claim, we must vacate the order and remand for a new order without

addressing the substance of each argument on appeal because as noted by Crews I,

“[t]he trial court’s analysis of th[e] issues may be different when applying the proper

legal standard [and considering the new evidence] for a child support award in a high-

income case such as this one.” Crews I at *7.



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                                       V.       Conclusion

      We vacate the order and remand for a new trial on all issues. The parties may

rely upon the evidence presented at the September 2014 hearing but may also present

additional evidence for the entire time period covered by the hearing, from March

2012, the date the child support claim was filed, to the date of the hearing on remand.

We note based upon the arguments on appeal, the trial court should clarify its

calculations of certain expenses.      The trial court shall then enter a new order

addressing all of the claims and issues.

      VACATED and REMANDED.

      Judges ZACHARY and MURPHY concur.




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