#28294-aff in pt, rev in pt & rem-MES 2018 S.D. 74
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
JENNIFER L. HILLER, Plaintiff and Appellee,
v.
JAMES D. HILLER, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA ****
THE HONORABLE VINCENT A. FOLEY Retired Judge
STACY F. KOOISTRA SHARLA B. SVENNES of Myers Billion, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellee.
KENNETH M. TSCHETTER of Tschetter & Adams Law Office, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS ON AUGUST 27, 2018 OPINION FILED 10/24/18 #28294
SALTER, Justice
[¶1.] After finding James Hiller in contempt for violating the provisions of a
visitation order, the circuit court ordered James to pay attorney fees incurred by his
former spouse, Jennifer Hiller. In an ensuing proceeding to change custody, the
court ordered James to pay additional attorney fees to Jennifer along with expert
witness fees. James appeals both orders. We affirm in part, reverse in part, and
remand.
Facts and Procedural History
[¶2.] James and Jennifer were divorced in 2013 following a court trial. 1 One
area of evidence developed during the trial concerned Jennifer’s relationship with
Wayne Lloyd, a family friend who was also a registered sex offender because of his
1994 conviction for raping a 15-year-old girl. The court’s original custody
determination granted the parties joint legal and physical custody of their two
minor children, S.H. and T.H. However, the court required the presence of another
adult whenever Lloyd was around the children.
[¶3.] At some point after the divorce, Jennifer began dating Lloyd, and in
November of 2013, she filed a motion to lift the supervision requirement. At the
hearing, James testified that S.H. was uncomfortable being around Lloyd. The
court found Lloyd posed a risk to S.H. because she was similar in age to Lloyd’s rape
victim and could be susceptible to manipulation. The court refused to lift the
1. This Court decided an earlier appeal involving the parties, relating principally to the circuit court’s equitable division of property. Hiller v. Hiller, 2015 S.D. 58, 866 N.W.2d 536.
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supervision requirement as to S.H and also denied James’s oral motion to modify
the custody order to prohibit Lloyd from being present when S.H. stayed overnight
with Jennifer. 2
[¶4.] In March of 2015, Jennifer announced her plan to move in with Lloyd.
S.H., who was then 15 years old, refused to attend visitation with her mother, and
both parties sought court intervention. The circuit court ordered the parents to
participate in a custody evaluation with Shanna Moke. The court also ordered an
interim visitation schedule that allowed Jennifer two evenings per week with S.H.
but required that Lloyd not be present. S.H. attended these visits with Jennifer.
The court further ordered Jennifer and S.H. to attend family counseling.
[¶5.] When Jennifer ultimately moved in with Lloyd in August of 2015, S.H.
continued her refusal to attend visits, prompting James to seek to modify visitation.
However, the parents entered into a visitation agreement based upon Moke’s
recommendations. The circuit court entered an order in December of 2015
consistent with the parties’ agreement. The order established a two-week transition
period during which Lloyd would not be present for visits between Jennifer and
S.H., followed by visits at Jennifer’s home where Lloyd could be present. The order
required James to transport S.H. to Jennifer’s residence and continued the
supervision condition for contact between S.H. and Lloyd. Finally, the order
required Jennifer and S.H. to attend counseling with Dr. Gretchen Hartmann and
2. The court lifted the restriction as to T.H., concluding Lloyd was not a danger to him. -2- #28294
imposed an additional obligation upon James to “become involved in therapy upon
Ms. Hartmann’s direction.”
[¶6.] S.H. attended the initial scheduled visitations with Jennifer. However,
during a visit on November 19, 2015, S.H. attempted to leave because Lloyd had
arrived. S.H. refused to attend future visits.
[¶7.] On December 28, 2015, Jennifer filed a motion asking the circuit court
to find James in contempt. She alleged that James willfully disregarded the
visitation order by refusing to discipline S.H. for not attending visits, by failing to
bring S.H. to visits, and by alienating S.H. Jennifer also claimed James had
indicated he would refuse to follow the visitation order because he disagreed with
the provision allowing Lloyd to be present.
[¶8.] At a hearing on January 7, 2016, Dr. Hartmann testified that her
counseling sessions with James, Jennifer, and S.H. led her to conclude James was
alienating S.H. from Jennifer. Although James said he wanted S.H. to have a
relationship with Jennifer, Dr. Hartmann noted he refused to impose any
consequences on S.H. if she refused to visit Jennifer. Dr. Hartmann opined that
James’s failure to assure these consequences resulted in parental alienation and
subverted Jennifer’s authority. In Dr. Hartmann’s view, this type of parental
alienation would severely damage the parent-child relationship. She further
expressed her belief that the problem was not about Lloyd, but rather “the conflict
and the disagreement between the parents.” The circuit court did not rule on
Jennifer’s contempt motion. Instead, it emphasized to James the need to comply
with the December 2015 order regardless of S.H.’s view of Lloyd.
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[¶9.] During a second hearing in February, Dr. Hartmann testified that
James was still not attempting to enforce consequences for S.H.’s conduct. She
opined that parental alienation was still present and that court-ordered family
reunification therapy would not work until James started to facilitate visitation.
James testified that he encouraged S.H. to see Jennifer but that he would not force
her to go because she was afraid of Lloyd.
[¶10.] At the conclusion of the hearing, the circuit court found James in
contempt. The court found that James was “a passive/aggressive liar in these
proceedings[.]” In that regard, the court observed that James was “just happy to . . .
say [S.H.] should do something” but then not enforce the directive. The court
considered James’s testimony “incredibly deceitful.” It further assessed Dr.
Hartmann’s testimony as “incredibly credible” and determined Jennifer’s testimony
was “biased, yet credible.”
[¶11.] The court entered written findings of fact consistent with its oral
findings. The court found that James knew of the December 2015 order, that he
had the ability to comply with it, and that he disregarded its provisions when “he
failed to enforce the [c]ourt’s Order for the ordered January visitation.” As a
consequence, the court ordered James to prepare and deliver to the court a
quitclaim deed for an undivided 1/64th interest in a parcel of his farmland. The
court also directed James to pay Jennifer $4,082 in reasonable attorney fees
incurred by “her having to bring this action.”
[¶12.] James later asked the court to reconsider the sanction requiring him to
execute and deliver a quitclaim deed for a portion of his farm property. However,
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James did not ask the court to reconsider its finding of contempt for failing to
comply with the court’s order. In fact, he candidly stated, “With the benefit of
hindsight, [James’s] non-compliance with the [c]ourt’s parenting time order should
be somewhat mitigated, although certainly not excused.” Jennifer did not object to
the court removing the quitclaim deed provision.
[¶13.] In an amended judgment of contempt, the circuit court removed the
requirement that James deliver a quitclaim deed. The amended order left intact
the requirement that James pay Jennifer’s attorney fees incurred in bringing the
contempt action and provided that James could “purge” himself of contempt by
paying the attorney fees. However, there was no provision that allowed James a
means to avoid paying the attorney fees by complying with the visitation order. In
fact, the amended order did not include any provision to compel compliance with the
underlying order. Nor did the court’s amended order cite statutory support for the
award of fees.
[¶14.] At roughly the same time as the contempt proceedings, Jennifer filed a
motion to change custody. The circuit court conducted an evidentiary hearing in
July of 2016, at which Dr. Hartmann, Moke, and S.H.’s counselor testified. Moke
and Dr. Hartmann presented conflicting expert opinions. Dr. Hartmann reiterated
her opinions relating to what she described as ongoing parental alienation. Moke,
however, disagreed and testified that she and Dr. Hartmann had erroneously
focused on forcing S.H. to be around Lloyd. In Moke’s view, Lloyd should not be
present for S.H.’s visits with Jennifer.
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[¶15.] The circuit court denied Jennifer’s motion to modify custody. Instead,
it implemented an immersion plan under which S.H. would live with Jennifer for
six weeks without Lloyd present and without visitation with James. The court
further ordered that after the immersion period, S.H. would have the autonomy to
choose with which parent to live. In the court’s frank assessment, “Unless and until
[S.H.] accepts Mr. Lloyd, she will likely spend most of her nights at [James’s]
residence.”
[¶16.] Jennifer subsequently moved for an award of attorney fees related to
the motion to change custody. She also sought an order requiring James to pay Dr.
Hartmann’s expert witness fees incurred in connection with the July hearing.
James resisted, arguing, among other things, that he was unable to pay because his
net worth consisted largely of illiquid assets, leaving him with a poor cash position.
[¶17.] The court granted both of Jennifer’s requests. It ordered James to pay
Jennifer $11,493.48 in attorney fees pursuant to SDCL 15-17-38 and also held
James solely responsible for Dr. Hartmann’s expert witness fees of $4,364.54.
[¶18.] James appeals and raises the following issues for review:
1. Whether the circuit court clearly erred in finding James in contempt.
2. Whether the circuit court abused its discretion in awarding attorney fees incurred in the contempt action.
3. Whether the circuit court abused its discretion in awarding Jennifer attorney fees and in ordering that James pay Dr. Hartmann’s expert witness fees related to Jennifer’s motion to change custody.
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Standard of Review
[¶19.] Matters of judicial discretion, such as an award of attorney fees or the
court’s remedy for contempt, are reviewed for an abuse of discretion. Brosnan v.
Brosnan, 2013 S.D. 81, ¶ 12, 840 N.W.2d 240, 246 (attorney fees); Sazama v. State
ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340 (contempt). An abuse of
discretion “is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary and
unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d
611, 616. Findings of fact are reviewed for clear error and will only be overturned
“when we are definitely and firmly convinced a mistake has been made.” Lakota
Cmty. Homes, Inc. v. Randall, 2004 S.D. 16, ¶ 9, 675 N.W.2d 437, 440.
Analysis and Decision
1. Whether the circuit court clearly erred in finding James in contempt.
[¶20.] A court’s common law contempt power includes two distinct varieties—
civil contempt and criminal contempt. Sazama, 2007 S.D. 17, ¶ 23, 729 N.W.2d
at 344. The civil contempt power is designed “to force a party ‘to comply with orders
and decrees issued by a court in a civil action[.]’” Id. (quoting Wold Family Farms,
Inc. v. Heartland Organic Foods, Inc., 2003 S.D. 45, ¶ 14, 661 N.W.2d 719, 723).
For this reason, civil contempt is coercive in nature. “[I]t seeks to compel ‘the
person to act in accordance with the court’s order,’ rather than to punish for past
conduct.” Id. (quoting Wold Family Farms, 2003 S.D. 45, ¶ 14, 661 N.W.2d at 723).
“The required elements for a finding of civil contempt are[:] (1) the existence of an
order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful
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or contumacious disobedience of the order.” Keller v. Keller, 2003 S.D. 36, ¶ 9,
660 N.W.2d 619, 622 (quoting Harksen v. Peska, 2001 S.D. 75, ¶ 12, 630 N.W.2d 98,
101).
[¶21.] Here, James challenges the circuit court’s determination that he had
the ability to comply with the visitation order, arguing that S.H. was a strong-willed
teenager who unilaterally refused to attend visitation. Though James testified that
he was unable to physically force S.H. to attend visits when Lloyd was present, the
circuit court’s focus was less upon the actual act of transporting S.H. to her mother’s
home and more upon the parental effort necessary to prepare S.H. for the transition
plan James had already developed with Jennifer. In this regard, the circuit court
accepted Dr. Hartmann’s view that the brinkmanship associated with getting S.H.
to go to the visits may have been obviated had James effectively communicated the
plan to S.H., stressed his assent, and warned of consequences should she disobey.
The court also assessed James’s credibility, referring to him as a “passive/aggressive
liar.” In the court’s view, James was duplicitous and had the ability to comply with
the stipulated visitation order.
[¶22.] Although James disagrees with the disposition of the facts by the
circuit court, our standard of review reflects both the primacy of the court’s fact-
finding role and our inclination to reverse only those findings that are clearly
erroneous. See McCollam v. Cahill, 2009 S.D. 34, ¶ 6, 766 N.W.2d 171, 174. In this
regard, “[t]he credibility of the witnesses, the weight to be accorded their testimony,
and the weight of the evidence must be determined by the circuit court and we give
due regard to the circuit court’s opportunity to observe the witnesses and the
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evidence.” Id. From our review, James has not established the existence of clear
error.
2. Whether the circuit court abused its discretion in awarding attorney fees incurred in the contempt action.
[¶23.] Before we address the substance of James’s argument, it is helpful to
contrast criminal contempt from civil contempt. Unlike civil contempt, criminal
contempt arises from conduct or acts committed in the court’s presence “that serve
to ‘subvert, embarrass, or prevent the administration of justice.’” Sazama,
2007 S.D. 17, ¶ 24, 729 N.W.2d at 344 (quoting Wold Family Farms, 2003 S.D. 45,
¶ 14, 661 N.W.2d at 723). Following a determination of criminal contempt, a court
may impose “sanctions that serve to punish the contemnor for a past transgression
against the authority or dignity of the court.” Id. (emphasis added). Both types of
contempt can evoke stern responses from a circuit court, but because of the
overarching premium upon compliance, a court’s determination of civil contempt
must also include an opportunity for a recalcitrant contemnor to purge himself of
his contempt by obeying the underlying order. Id. ¶ 27, 729 N.W.2d at 345.
[¶24.] Here, the circuit court’s contempt order, neither in its original nor
amended forms, directly connects the payment of attorney fees to compliance with
the underlying visitation order. James was required to pay the attorney fees
without regard to his prospective compliance. Though the court indicated in its
amended contempt order that James could “purge” himself of his contempt by
paying Jennifer’s attorney fees, there is no direct coercive means to assure
compliance with the December 2015 visitation order. For this reason, the court’s
order seems more punitive than coercive.
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[¶25.] Even so, we need not determine the precise nature of the court’s
contempt order or whether the common law of contempt authorized the attorney
fees award. Here, James and Jennifer acknowledge the circuit court possessed
statutory authority—unconnected to contempt principles—to award Jennifer
attorney fees in this custody proceeding, though they differ on which of two statutes
applies and the requisite corresponding analysis.
[¶26.] One source of authority for an attorney fees award is SDCL 15-17-38,
which generally authorizes attorney fees in all cases of custody and visitation. An
attorney fees award under this statute requires a circuit court to undertake our
well-settled and detailed two-step analysis, which assesses the reasonableness and
necessity of an award. Streier v. Pike, 2016 S.D. 71, ¶ 25, 886 N.W.2d 573, 581. In
James’s view, an award of attorney fees under SDCL 15-17-38 is not sustainable
here because the court failed to perform the second step of the analysis—a
determination of the necessity of the attorney fees.
[¶27.] For her part, Jennifer contends SDCL 25-4A-5 supports the court’s
award because it specifically authorizes sanctions, including attorney fees, when a
court finds a party has “willfully violated or willfully failed to comply with any
provision of a custody or visitation decree[.]” In her view, the circuit court was not
required to engage in a standard, multi-factored assessment relating to the
necessity of an award because it awarded attorney fees as a specific sanction to
punish James for his willful noncompliance with a visitation order. We agree.
[¶28.] The text of SDCL 25-4A-5 allows the sanction of attorney fees for the
express purpose of “punish[ing] the offender[.]” Therefore, a circuit court’s findings
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relating to necessity are sufficient so long as they adequately support the
determination that the offending “party has willfully violated or willfully failed to
comply with any provisions of a custody or visitation decree[.]” See id. Even though
this discrete statutory authority to sanction or punish a party is, strictly speaking,
unconnected to the law of contempt, the elements of civil contempt feature
overlapping factual considerations. Here, for instance, the circuit court’s contempt
finding that James willfully “failed to comply” with the court’s visitation order
necessarily satisfies SDCL 25-4A-5’s statutory requirement of willful violation or
noncompliance with the provisions of a visitation order.
[¶29.] Nevertheless, James asserts the attorney fees award is infirm because
the circuit court “did not give any analysis or give the required consideration to the
financial information of each party.” However, given the specific purpose
underlying the statutory authority of SDCL 25-4A-5, an inquiry into a party’s
relative worth, income, or liquidity is not required or relevant to this analysis. This
approach is consistent with other cases in which we have upheld an award of
attorney fees as a sanction imposed pursuant to statutes or rules. See, e.g., Coloni
v. Coloni, 2017 S.D. 66, ¶ 10, 903 N.W.2d 745, 748 (affirming attorney fees award
pursuant to SDCL 15-6-37(a)(4)(A) where circuit court’s findings “sufficiently
justified the imposed sanctions”); Hobart v. Ferebee, 2009 S.D. 101, ¶ 28, 776
N.W.2d 67, 75 (affirming attorney fees award for frivolous or malicious filing under
SDCL 15-17-51 where circuit court’s findings detailed conduct of party who
persisted in advancing legal arguments that had been previously rejected).
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[¶30.] Of course, an attorney fees award under SDCL 25-4A-5(2) must still be
reasonable. In addition to our precedent that requires this determination, the text
of SDCL 25-4A-5(2) limits an attorney fees award to “reasonable attorney’s fees
incurred as a result of the noncompliance[.]” In this case, the court was keenly
aware of the complex and contentious nature of this case. It considered the
“significant management of the communications[,]” the “deep history of the
dispute[,]” the necessity for an ongoing review of the relationship, the “litigious
nature of the parties” caused by James’s behavior, and the “unique circumstances of
this case on the legal issue of contempt.” The court concluded that $4,082 was not
excessive. From our review, the record supports the court’s decision to exercise its
discretion and sanction James $4,082 for his failure to comply with the terms of the
visitation order. See SDCL 25-4A-5.
3. Whether the circuit court abused its discretion in awarding Jennifer’s attorney fees and in ordering that James pay Dr. Hartmann’s expert witness fees related to Jennifer’s motion to change custody.
[¶31.] Attorney fees may only be awarded by agreement of the parties or
when specifically authorized by statute. Center of Life Church v. Nelson, 2018 S.D.
42, ¶ 34, 913 N.W.2d 105, 114. The parties agree that the circuit court had
authority to award attorney fees under SDCL 15-17-38 and that the court was
required to engage in the detailed two-step analysis before granting such an award.
The parties have divergent views, however, as to the efficacy of the circuit court’s
findings in this regard.
[¶32.] It is well settled that the circuit court must examine both the
reasonableness and necessity of an award of attorney fees:
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First, the court must determine what constitutes a reasonable attorney’s fee. This requires consideration of[:] (1) the amount and value of the property involved, (2) the intricacy and importance of the litigation, (3) the labor and time involved, (4) the skill required to draw the pleadings and try the case, (5) the discovery utilized, (6) whether there were complicated legal problems, (7) the time required for the trial, and (8) whether briefs were required. Second, it must determine the necessity for such fee. That is, what portion of that fee, if any, should be allowed as costs to be paid by the opposing party. This requires consideration of the parties’ relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.
Streier, 2016 S.D. 71, ¶ 25, 886 N.W.2d at 581 (quoting Nickles v. Nickles, 2015 S.D.
40, ¶ 34, 865 N.W.2d 142, 154).
[¶33.] In its analysis of the reasonableness of the award, the court
emphasized that James increased the time, labor, and skill necessary to prepare for
the custody hearing, that he “complicated the nature of the legal problems,” and
that he “unreasonably increased the time spent” on the case. See id. (listing
factors). James, however, contends the court clearly erred when it determined that
his actions resulted in parental alienation that unnecessarily complicated the case.
He further claims the court incorrectly “blamed” James for the visitation problems
between S.H. and Jennifer.
[¶34.] From our review, the record sufficiently supports the circuit court’s
findings. Dr. Hartmann and Moke offered differing opinions regarding the
existence of parental alienation, and the court simply chose to believe Dr.
Hartmann’s testimony that James’s actions alienated S.H. and severely damaged
Jennifer’s relationship with S.H. The court was also able to observe James’s
demeanor and weigh his testimony before concluding that James’s conduct
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necessitated an attorney fees award. It was within the province of the circuit court,
as the trier of fact, to accept one expert’s opinions over another’s and to judge the
credibility of the witnesses and the weight to be given to their testimony.
McCollam, 2009 S.D. 34, ¶ 6, 766 N.W.2d at 174.
[¶35.] James also argues that the circuit court failed to adequately address
the second inquiry—the necessity of an award. He contends the circuit court
ignored evidence he claims indicated his inability to pay Jennifer’s attorney fees.
Although the circuit court did not enter detailed findings in this regard, the court
noted that the parties’ net worth, income, and liquidity were established by the
record. The broad and spare nature of this finding should be tempered with the fact
that the circuit court engaged in a discussion with James and his counsel on the
record about James’s financial situation. Under the circumstances, we cannot say
the circuit court failed to consider James’s net worth, income, and liquidity. See
Toft v. Toft, 2006 S.D. 91, ¶ 12, 723 N.W.2d 546, 550 (quoting Swanson &
Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8th Cir. 1977) (noting that
specific findings are not required when “the record itself sufficiently informs the
court of the basis for the trial court’s decision on the material issue”)). In light of
this record, James has not established that the $11,493.48 attorney fees award was
an abuse of discretion.
[¶36.] However, we conclude the circuit court abused its discretion when it
ordered James to pay Dr. Hartmann’s expert witness fees incurred in connection
with the July 8, 2016 hearing. Under SDCL 15-17-37, “[t]he prevailing party in a
civil action or special proceeding may recover expenditures necessarily incurred in
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gathering and procuring evidence or bringing the matter to trial. Such
expenditures include costs of . . . court appointed experts[.]” (Emphasis added.)
“The prevailing party is the party in whose favor the decision or verdict is or should
be rendered and judgment entered.” Crisman v. Determan Chiropractic, Inc.,
2004 S.D. 103, ¶ 23, 687 N.W.2d 507, 513. We review a court’s determination that a
party prevailed for an abuse of discretion. Id.
[¶37.] Here, Jennifer filed a motion for full custody of S.H. with the view that
Lloyd would be present in the same home. Dr. Hartmann testified in support of
Jennifer’s motion, and Moke testified in opposition. Although the court discounted
Moke’s testimony and favored Dr. Hartmann’s suggestion of an immersion plan, the
court ultimately denied Jennifer’s motion to change custody. Under the court’s
immersion plan and its order, neither Jennifer nor James truly prevailed as
partisans. Indeed, the court’s order directed that upon conclusion of the immersion
period, S.H. would make her own visitation decisions. Because Jennifer did not
prevail, she was not entitled to recover Dr. Hartmann’s fees under SDCL 15-17-37,
and we need not address James’s claim that Dr. Hartmann did not testify in her
capacity as a court-appointed expert.
4. Appellate Attorney Fees.
[¶38.] James and Jennifer separately request an award of appellate attorney
fees. We decline to award fees to either party.
[¶39.] Affirmed in part, reversed in part, and remanded.
[¶40.] GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,
Justices, concur.
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