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Levick v. MacDougall

Supreme Court of Virginia

November 2, 2017



          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette, S.J.



         Richard S. Levick and Deborah MacDougall married in 2002. During a divorce proceeding 10 years later, Levick asserted - for the first time - that their marriage was void ab initio. On this ground, Levick claimed that he could repudiate a marital agreement requiring him to pay spousal support and to distribute the marital assets.

         The circuit court agreed in full with Levick's reasoning. The Court of Appeals agreed only in part, holding that the marriage was merely voidable, not void ab initio. We disagree entirely with Levick's reasoning and hold that the marriage was not voidable or void ab initio. The circuit court, therefore, had authority to distribute the marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding.


         On December 21, 2002, Levick and MacDougall participated in a wedding ceremony in their home in the presence of friends and family. Before the ceremony, the officiating rabbi discovered that the parties had not yet obtained a marriage license. The rabbi suggested that Levick and MacDougall participate in the ceremony that day as long as they obtained a marriage license and submitted the marriage certificate to the rabbi as soon as possible. On January 6, 2003, MacDougall went to the courthouse with Levick to obtain the license. See 2 J.A. at 673, 679, 802.[1] Levick told MacDougall that he would mail the marriage register out right away to the rabbi, and she agreed and kissed him goodbye. See id. at 683, 803. After the rabbi received the marriage register, which included the license and certificate, he executed the marriage certificate and verified that the parties were married on the date of execution, not the prior date of the ceremony in their home.[2]

         As the rabbi explained in his testimony, he was "completing" the solemnization that began with the ceremony. 3 id. at 979. His receipt of the marriage register in the mail from Levick and MacDougall demonstrated the couple's "intention . . . to complete the ceremony." Id. at 983. Levick conceded in the proceedings below that "[their] intention was to be legally married, " when he and MacDougall followed the rabbi's instructions, obtained the license, and mailed the marriage register to the rabbi. See id. at 773-76 (emphasis added). Levick understood that they "needed a license and it had to be signed by the rabbi" and that "it was necessary to do [so] in order to be lawfully married." Id. at 776 (emphases added). In response to a question asked by Levick's counsel about whether she thought that she was married on December 21, 2002, MacDougall responded that she "didn't think that it was over" on December 21 because the rabbi "had told [them] what [they] had to do, " and if she "thought it was all finished, then [she] wouldn't have gone to the Courthouse" thereafter to obtain the marriage license. Id. at 825-26. Under their agreement, the ultimate expression of their solemn intent to marry was their act of forwarding the marriage register to the rabbi for the sole purpose of him acknowledging that intent by executing the marriage certificate. The rabbi identified the date of the marriage as the date that he received the marriage register and executed the marriage certificate. See supra at 2 & note 2.

         In 2009, the marriage began to deteriorate. Levick and MacDougall entered into a marital agreement to "form the foundation of a divorce or separation agreement, should either come to pass." 1 J.A. at 3. If either did occur, Levick agreed to pay MacDougall $150, 000 in spousal support annually and pay for her health insurance premiums for the remainder of her lifetime. Levick also agreed to divide equally the proceeds from the sale of the marital home, and, in the event that he sold his company, MacDougall would receive 35% of the proceeds.

         The parties filed for divorce in 2011. Nearly two years into the divorce litigation, Levick filed a motion arguing for the first time that the marriage was void ab initio - that is, a "complete nullity" under the law, Jones v. Commonwealth, 293 Va. 29, 53, 795 S.E.2d 705, 719 (2017) (citation omitted) - because they had obtained the marriage license 16 days after the marriage ceremony in their home.[3] This time lapse, he contended, violated Code § 20-13 and rendered the marriage void ab initio, thus placing him outside the equitable powers of the divorce court and allowing him to repudiate his marital agreement. The circuit court agreed and rejected MacDougall's arguments in support of enforcing the marital agreement.

         On appeal, the Court of Appeals agreed that the ceremony-before-license sequence violated an implied term in Code § 20-13 but rejected the circuit court's conclusion that the violation rendered the marriage void ab initio. See MacDougall v. Levick, 66 Va.App. 50, 69-70, 782 S.E.2d 182, 191-92 (2016). Treating the marriage as merely voidable, the Court of Appeals nonetheless affirmed the circuit court's decision to hold the marital agreement ineffectual and rejected MacDougall's assertion that, under equitable principles, the agreement should be enforced even if the marriage was voidable. See id. at 81-84, 782 S.E.2d at 197-98.


         On further appeal to this Court, MacDougall argues that Code § 20-13 does not mandate a precise sequence for performing the marriage ceremony and obtaining the marriage license. To be sure, she points out, the statute does not mention a marriage "ceremony" at all. Instead, the statute addresses only the broader concept of solemnization. She adds that, even if this Court were to infer a particular sequence for the license and solemnization requirements, a violation of that judicially implied requirement would not render her marriage to Levick either void ab initio or voidable.[4]


         We begin our analysis where it will eventually end - with the first premise of Virginia law governing marriages: "The public policy of Virginia . . . has been to uphold the validity of the marriage status as for the best interest of society, " Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945), and thus, the presumption of the validity of a marriage ranks as "one of the strongest presumptions known to the law, " Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899). This presumption is not unique to our Commonwealth. "[I]t will be readily conceded that English and American tribunals tend, in construing the marriage acts, to uphold every marriage, if possible, notwithstanding a non-compliance with the literal forms." 2 James Schouler & Arthur W. Blakemore, A Treatise on the Law of Marriage, Divorce, Separation and Domestic Relations § 1191, at 1446 (6th ed. 1921). In our opinion, this robust presumption withstands all of Levick's arguments against it.

         Levick's main argument is quite simple: A marriage license must precede the marriage ceremony, and the marriage is void ab initio if this sequence is not followed. While we admire the brevity of Levick's reasoning, it illustrates well the trenchant aphorism, often attributed to Albert Einstein, that "[e]verything should be made as simple as possible, but not simpler."[5]Levick's argument evades a set of conceptually complex yet necessary legal questions: What are the essential attributes of solemnization? Does solemnization necessarily end at the last moment of the marriage ceremony? Are "solemnization" and "ceremony" exact synonyms, or is the latter simply evidence of the former? Can the officiant and the celebrants agree to extend solemnization for a brief period of time after the ceremony ends and, during that period, obtain the marriage license and execute the marriage certificate?

         To answer these questions, we start with the text of Code § 20-13: "Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided." That is a rather slow start, however, because there is no specific "manner herein provided" anywhere in the Code of Virginia. As Levick concedes, nothing in Code § 20-13 expressly indicates that the license and solemnization requirements must be performed in any particular order for the marriage to be valid. See Appellee's Br. at 12.[6] Nor does any provision of the Code limit solemnization only to a ceremony.

         In this case, the celebrants and the officiant agreed upon the manner in which they intended to solemnize the marriage. Based on that understanding, Levick and MacDougall obtained the license together and mutually agreed that Levick would mail the marriage register to the rabbi right away. By doing so, they reasserted their mutual intent to marry. On the date that the rabbi executed the marriage certificate, not the date of the earlier ceremony, the marriage began because solemnization was complete pursuant to their agreement. As the rabbi explained, he was "completing" their solemnization agreement that began with the ceremony and ended when he received the marriage register and executed the marriage certificate. 3 J.A. at 979.

         We know of no statute or opinion of this Court forbidding the celebrants and the officiant from agreeing to this particular manner of solemnization. While it may be unconventional, it should not be judicially deemed unlawful (much less void ab initio) unless the General Assembly has expressly declared it to be so. The legislature, however, has chosen not to micromanage the details of solemnization. Nor have we.

         Under our precedent, "no particular form of marriage ceremony is required, " Alexander v. Kuykendall, 192 Va. 8, 11, 63 S.E.2d 746, 748 (1951), because Virginia "has no official interest" in the details of "the ceremony or ritual which surrounds the act, " Cramer v. Commonwealth, 214 Va. 561, 565, 202 S.E.2d 911, 914 (1974). What matters is the solemnity of the celebrants' representations to the officiant of their sincere intent to marry. See id. ("The interest of the state is not only in marriage as an institution, but in the contract between the parties who marry, and in the proper memorializing of the entry into, and execution of, such a contract."). For the purposes of solemnization, a ceremony merely serves to authenticate the parties' intent to marry.

         Levick contends that no precedent expressly authorizes the unconventional solemnization that he, his wife, and the rabbi agreed to complete in advance. See Appellee's Br. at 18-20; see also post at 22. True enough. But that contention inverts the burden of proof. As the party challenging the validity of his marriage, Levick bears the burden of proving that it violates Virginia law. See Parker v. American Lumber Corp., 190 Va. 181, 185, 56 S.E.2d 214, 216 (1949). He attempts to shoulder that burden by asserting that Code § 20-13 requires every marriage in Virginia to be licensed and solemnized. Again, this statement is true. But, as the marriage certificate attests, the couple was married on January 21, 2003 - 15 days after he and MacDougall reaffirmed their mutual intent to marry by forwarding their marriage license to the rabbi pursuant to their earlier agreement.[7]

         For over half of a century, Attorneys General of Virginia have been of the opinion that "Virginia law does not require that the parties to a marriage be in the presence of each other, or in the presence of the person officiating at the ceremony, for the marriage to be valid." 1987-1988 Op. Atty. Gen. 316, 317-18; see also 1959-1960 Op. Atty. Gen. 219, 220-21 (stating that "[t]he Virginia statute does not provide that both the parties must be in the presence of the officiating minister when the marriage is solemnized, " and thus, "[i]n the absence of a statutory requirement that the parties be in the presence of each other when entering into [a marriage], it would seem that the agreement may be completed at long distance").[8]

         It is unnecessary in this case to determine what qualifications or limiting principles apply to the opinions of the Attorneys General. For the present, it is enough to simply observe that if the views of the Attorneys General are even half-right, the solemnization agreement in this case (a ceremony followed shortly thereafter by the issuance of a marriage license, the joint presentation of the marriage register to the officiant, and the officiant's execution of the marriage certificate) did not violate any existing Virginia statute or case law. The "principal objects" of statutes similar to Code § 20-13, which require a license and solemnization for a valid marriage, "are to insure publicity and preserve evidence of marriages." Joseph R. Long, A Treatise on the Law of Domestic Relations § 60, at 99 (2d ed. 1913).[9] The solemnization in this case satisfied both of those objects.


         Levick's contrary view - that "ceremony" and "solemnization" should be treated as exact synonyms - fails to take into account that the Code of Virginia uses the two words for different purposes in different contexts. Compare, e.g., Code § 32.1-267(C) (requiring a "person who officiates at a marriage ceremony" to file the marriage certificate "within five days after the ceremony"), with, e.g., Code § 20-13 (stating that "[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided"). Although the rabbi may have violated Code § 32.1-267(C) by not filing the marriage certificate within five days of the marriage ceremony that he officiated, neither that statute nor any other statute mandates that the officiant's violation voids the celebrants' marriage. They have no control of whether he files the certificate five, six, or sixty days later. The legal validity of their marriage cannot be so easily extinguished.

         Levick disagrees, arguing that the General Assembly intended for the marriage to be judicially declared void if the issuance of the license does not precede the "solemnization ceremony." Appellee's Br. at 20; see also id. at 57. However, the term "solemnization" does not appear in Code § 32.1-267(C), and the term "ceremony" does not appear in Code § 20-13. The dissimilar use of these terms implies that the General Assembly has declined to adopt a specific definition for solemnization, leaving the details to the discretion of the officiant and the celebrants.[10] If we were to transpose "ceremony" for "solemniz[ation]" in Code § 20-13, we would effectively amend the statute in a manner inconsistent with our traditional role as mere expositors and not makers of the law.[11]

         Levick also makes much of the fact that the rabbi violated Code § 20-28, which prohibits an officiant from "perform[ing] the ceremony of marriage without lawful license." Perhaps the rabbi did violate the statute. But his violation of Code § 20-28 does not affect the only two requirements to create a valid marriage under Code § 20-13 - a license and solemnization. "[L]egislation commanding formalities, even punishing those who celebrate marriage contrary to its provisions, or punishing the parties themselves, will not render a marriage had in disregard of it void, unless the statute expressly or by necessary implication declares this consequence." 1 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation § 449, at 192 (1891); see also 2 James Kent, Commentaries on American Law 86-92 (1827) (noting that violations of various statutory regulations of marriage, while they may impose penalties on the officiant, do not ultimately affect the validity of the marriage).[12]

         Finally, Levick turns to Code § 20-14.1, which states in part that a marriage license constitutes "authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees." The marriage license issued to Levick and MacDougall, however, was obtained 15 days prior to the culmination of their solemnization agreement - the day on which the rabbi received the marriage register and executed the marriage certificate as promised. Code § 20-14.1 does not address, much less prohibit, the unique sequence agreed to by Levick, MacDougall, and the rabbi. Levick's reliance on Code § 20-14.1 thus rests on the unproven assumption that the last moment of their ceremony ended solemnization as a matter of law.

         In short, Levick has not rebutted the strong presumption favoring the validity of his marriage. Given the absence of any statute or controlling precedent requiring that his marriage be declared void, we have no authority to do so.[13]



         On several points, we must regrettably part company with our dissenting colleagues. As noted earlier, Code § 20-13 does not say anything about the required manner and sequencing of solemnization. Nor do any other statutes require that a marriage in violation of the dissent's view of solemnization be judicially declared void ab initio - a remedy the General Assembly usually makes quite clear when it intends the courts to award it. See, e.g., Code § 20-43 (declaring bigamous marriages "absolutely void"). Because our duty "is not to make law, but to construe it, " Saville v. Virginia Ry. & Power Co., 114 Va. 444, 452, 76 S.E. 954, 957 (1913), we resist Levick's invitation to interpolate into the marriage statutes an unwritten solemnization requirement that, if violated, would treat a marriage as void ab initio, a legal nullity subject to challenge at any time by anyone.[14]

         That said, the unusual fact pattern of this case allows us to occupy a narrow patch of common ground with our dissenting colleagues. They concede that "[a]s long as this consent to be married is presently expressed to and, at the same time, received by the officiant when the celebrants possess a marriage license, a valid marriage is created." Post at 30. We agree. That is what happened in this case pursuant to the agreement between the rabbi and the parties.

         MacDougall went to the courthouse with Levick to obtain the license, and he told her that he would mail it out right away to the rabbi, to which she agreed before kissing him goodbye. See 2 J.A. at 673, 679, 683, 803. MacDougall testified that "[f]orwarding the license was [their] communication to [the rabbi]." Id. at 820. The rabbi similarly confirmed that, upon receiving the marriage register sent by Levick and MacDougall in order to execute the marriage certificate, Levick and MacDougall irrefutably demonstrated to him their "intention . . . to complete the ceremony." 3 id. at 982-83. Levick further conceded in the proceedings below that "[their] intention was to be legally married" when he was asked whether his "intention in complying with the instructions of [the rabbi] was to fulfill the [rabbi's] requirements" so that he "could be legally married." 2 id. at 773-74; see also id. at 776.

         Solemnization, therefore, occurred when Levick and MacDougall obtained the marriage register and forwarded it to the rabbi pursuant to their agreement, which they made with him in person at the earlier ceremony, and the rabbi thereafter executed the marriage certificate in accordance with their agreement. By doing so, Levick and MacDougall repeated and reaffirmed to the officiant their joint, unqualified intent to marry - an intent that Levick has never once disavowed. Nothing in any statute or case law forbids Levick and MacDougall from verifying their intent to marry in this manner.[15]


         On several fronts, the dissent's characterization of our holding goes too far, requiring us to repeat Justice Ginsburg's observation that "Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling." Jones, 293 Va. at 57 n.26, 795 S.E.2d at 721 n.26 (quoting Lee v. Kemna, 534 U.S. 362, 386 (2002)). The dissent, for example, claims that "the majority's theory would allow a marriage to be solemnized based solely on the fact that the celebrants had previously consented to be married." Post at 29-30. We disagree. The Levick-MacDougall marriage began after the ceremony, after the issuance of the marriage license, and after they reasserted their mutual, unconditional, unqualified, present intent to be married by forwarding the marriage register to the rabbi for the purpose of him signing the marriage certificate pursuant to their agreement. Only after all of these events did the marriage legally begin.[16]

         Even further afield is the speculation over the validity of underage marriages, post at 35-36, "indefinite secret period[s] during which an apparent marriage is in legal limbo, " post at 36, limitation periods for annulment proceedings, post at 36, and "young lovers" who immediately betray each other, post at 37-38. This "parade of horribles, " see, e.g., Bristol-Myers Squibb Co. v. Superior Court, ___ U.S. ___, ___, 137 S.Ct. 1773, 1783 (2017), involves factual circumstances wholly dissimilar from the case that we now decide. Though we need not, and should not, offer advisory opinions on such hypotheticals, we can disclaim with confidence the dissent's effort to predict them. As we recently emphasized, "all statements of law" in our judicial opinions "are to be read in connection with the facts of the case to which they are to be applied." Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 160, 795 S.E.2d 887, 900 (2017) (quoting Ellerson Floral Co. v. Chesapeake & Ohio R.R., 149 Va. 809, 812, 141 S.E. 834, 835 (1928)).


         We also acknowledge, but find unpersuasive, the dissent's hardship argument. "Clearly, " the dissent asserts, under our holding "there is the definite possibility that other celebrants will similarly end up believing they were married on one date, when in fact, their official wedding date is entirely different, " and "the lack of transparency created by the majority's theory can and will create innumerable problems in the future." Post at 37.

         The dissent's remedy for these unspecified "innumerable problems, " post at 37, however, would be to compound them - as this case so poignantly illustrates. Levick and MacDougall believed that they were legally married from 2003 to 2013, the period of time before Levick first came up with his argument to challenge the validity of the marriage during the midst of divorce litigation. MacDougall still believes that she is married today. The dissent's reasoning, however, sets aside over 10 years of their marriage by declaring it void ab initio. A legal transaction deemed void ab initio can be challenged by any person, in virtually any proceeding, for any reason precisely because the transaction, in the eyes of the law, does not exist. See Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001); Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 432, 4 S.E.2d 364, 367 (1939). No Virginia court has ever applied such a potent remedy to a legal challenge to marriage like the one asserted in this case.

         In taking the void-ab-initio path, the dissent overlooks the significant hardships its reasoning would cause. Creditors of one spouse could seek to strip a couple of the protection of a tenancy by the entirety through a challenge to the validity of the marriage, even when the couple is happily married and wants to remain so. See, e.g., Baker v. Speaks, 334 P.3d 1215, 1221-24 (Wyo. 2014). Every legal benefit afforded to lawfully married couples - such as joint-filing status for federal and state income tax filings; rights under wills, trusts, and other estate-planning instruments; beneficiary status in retirement and insurance policies; and a variety of similar benefits that presuppose the existence of a lawful marriage - could be retroactively challenged and expose both parties to the allegedly invalid marriage to a host of unforeseeable financial consequences. See generally 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 3.6, at 246-56 (2d ed. 1987) (discussing the "bewildering variety of situations" arising from the potential retroactive effects of void marriages on certain rights and obligations that turn upon the existence of a valid marriage).

         The dissent's void-ab-initio theory would be particularly harsh to MacDougall. After the parties married, she left a successful career to become an uncompensated chief operating officer for Levick's business and, during the course of her marriage, made $380, 000 in personal loans to the business.[17] These purely financial circumstances served as the principal reasons for the monetary and property-distribution provisions in the marital agreement. The dissent's view, however, would treat her multi-year investment over the course of her marriage as irrelevant. She could not enforce the marital agreement, in which Levick agreed to pay her $150, 000 in spousal support annually, pay for her health insurance premiums, divide equally the proceeds from the sale of the marital home, and, in the event that Levick sold his company, provide her with 35% of the proceeds. Nor would she, for that matter, have any other right to seek spousal support or to request a fair apportionment of marital property because, under the dissent's view, she never was Levick's spouse and never had any marital property.


         Finally, we disagree with the dissent's conclusion that the subtle complexities of this case boil down to the failure of the rabbi to follow up with the celebrants after receiving the marriage register in the mail. The dissent contends the rabbi should have "verified the parties' mutual present consent to be married at a time when they had a marriage license." Post at 33. The dissent acknowledges that, if the rabbi had "take[n] such action" to confirm that "the parties still mutually and presently consented to be married, " then the dissent "would agree there had been a solemnization of the marriage after the license had been issued, " post at 33, and thus, the marriage would be perfectly legal. The dissent does not identify the specific type of "action" that would satisfy this required verification by the rabbi, post at 33, but the dissent concedes later in the opinion that "contact with them via telephone" would be sufficient "to verify the celebrants' mutual present consent to be married, " which was "not the case here, " post at 34 (citing 1987-1988 Op. Atty. Gen. 316; 1959-1960 Op. Atty. Gen. 219).

         This concession serves as an appropriate coda to our analysis. By forwarding the marriage register to the rabbi as they previously agreed to do, both Levick and MacDougall were by that act alone reasserting that "the parties still mutually and presently consented to be married." Post at 33. The rabbi executed the marriage certificate in reliance on this intent. Neither Levick, MacDougall, nor the rabbi have ever suggested that the parties had a contrary intent. The dissent characterizes the rabbi's verification of the parties' intent as a mere "assumption" that this Court can and should judicially disregard. Post at 33-34. We fail to see why we should do so. The rabbi made an assumption, to be sure. But it was the very assumption that the celebrants agreed with the rabbi at the ceremony that he should make and, indeed, asked him to make. Neither Levick nor MacDougall have ever argued that the rabbi should not have made such an assumption. We know of no authority requiring us to declare this marriage void simply because the rabbi failed to make a follow-up call or to take some other action to verify the parties' mutual intent to marry and instead relied upon the parties' agreed-upon manner of verification.


         Having stated what we do decide, we must clarify what we do not decide. Following the traditional doctrine of judicial restraint, we "decide cases 'on the best and narrowest grounds available.'" Commonwealth v. White, 293 Va. 411, 419, 799 S.E.2d 494, 498 (2017) (citation omitted).[18] The best ground for decision in this case is also the narrowest: Nothing in the governing statutes or our case law renders a marriage void ab initio or voidable merely because the officiant and celebrants agree in advance to solemnize the marriage in the unusual manner that occurred in this case. We thus do not address dissimilar situations such as, for example, those in which the officiant and celebrants make no such solemnization agreement during a wedding ceremony, situations where either celebrant fails to join unequivocally in the agreed-upon reaffirmation of their solemn and mutual intent to marry, or, for that matter, situations where either celebrant outright disputes that he or she ever made such an agreement or reaffirmation. Nor are we faced with a scenario involving a marriage certificate backdated to a date prior to the issuance of the license. Our holding also renders moot a myriad of debates in this case on various other subjects, including:

■ whether Code § 20-13, if violated under this sequence of events, provides a mandatory, as opposed to a mere directory, statutory requirement;[19]
■ whether a violation of Code § 20-13, if proven, could be cured by Code § 20-31;[20]
■ whether an allegedly completed marriage, if found to be invalid and incurable, would be declared void ab initio, as the circuit court held, or merely voidable, as the Court of Appeals held;[21]
■ whether a party in Levick's position would be precluded by the doctrines of equitable estoppel or laches from challenging the validity of his marriage;[22] and
■ whether the marital agreement should be enforced despite a mistaken assumption by the parties at the time of executing it that their marriage was lawful.[23]

         Our silence on these underlying questions of law leaves them open for future debate and, thus, allows them to be addressed in later cases in which they are ripe for decision.


         In sum, Levick has failed to rebut the strong presumption favoring the validity of his marriage to MacDougall. The Court of Appeals was correct in reversing the circuit court's holding that the marriage was void ab initio but was incorrect in concluding that the marriage was voidable upon the challenge of either party. We thus reverse and remand the case to the Court of Appeals with instructions to remand the case to circuit court for further proceedings consistent with this opinion.

         Reversed ...

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