Filed 8 / 13 / 24

CERTIFIED FOR PUBLICATI O N

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BIJAN BOUTIQUES, LLC,
Plaintiff and Appellant,

v. ROSAMARI ISONG,
Defendant and Respondent. G0 63288
(Super. Ct. No. CIVDS2020995)

O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino County, Winston S. Keh, Judge. Affirmed.

Law Offices of Daniel B. Spitzer and Daniel Spitzer for Plaintiff
and Appellant.

Nelson, Comis, Kettle & Kinney and Keith H. Fichtelman for Defendant and Respondent

. * * *

Bijan Boutiques, LLC (Bijan) , appeals from the judgment entered after the court granted a motion for summary judgment in favor of Rosa mari2

Isong . Bijan ’ s complaint , which i s part of its effort to enforce a judgment ( the Bijan Judgment) i t obtained against Isong ’ s former husband, Richard Milam Akubiro , sought to void the property distribution portion of the marital
dissolution judgment entered between Isong and Akubiro

.

Bijan argues the marital dissolution judgment was subject to the Uniform Voidable Transactions Act ( Civ. C ode, § 3439 et seq

. ( UVTA ) ) and the judgment w as fraudulent because it awarded Isong the couple ’ s only
marital property located in the United States, while a warding Ak u biro other foreign assets and properties and assigning the Bijan liability to him

. According to Bijan, the dissolution judgment “ effectively makes enforcement of the Bijan Judgment impossible, without incurring the significant additional expense of attempting to enforce it against property and business interests outside the U.S. ”

The tr ial court ruled that Bijan ’ s complaint was barred by Family Code section 916, subdivision (a)(2) , which states that “ the property received by the person in the [marital dissolution] is not liable for a debt incurred by the person ’ s spouse before or during marriage, and the person is not personally liable for the debt, unless the debt was assigned for payment by the person in the division of the property. ” We agree and affirm. FACTS Isong and Ak u b i ro were married in Equatorial Guinea in 1997 and lived there together until 2006 , when Isong moved to the United States and established residency with their children. In 2012, the couple purchased a home in Chino, California , for Isong to reside in with their children. Akubiro never liv ed at the Chino property and rarely visited there

.

In 2014, Akubiro , wh ile residing in Equatorial Guinea, purchased over $ 447,00 0 in men ’ s clothing from Bijan , a Beverly Hills designer/ clothier

.3

Although not specifically identified as an undisputed fact, the parties appear to agree that Akubiro purchased the clothing to wear, rather than for
commercial resale. 1 Akubiro paid $119,616 toward his clothing debt, leaving an unpaid balance of over $327,000

.

In 2017, Isong heard rumors that Akubiro had taken additional wives in Equatorial Guinea. In March of 2017, when Akubiro admitted the

rumors were true , Isong effectively ended their marriage.

In July 2018, Bijan filed a lawsuit against Akubiro to collect the unpaid balance. Bijan served the lawsuit on Akubiro at the Chino property, by substituted service , in August 2018

. Later that same month, Isong filed a petition for dissolution of her marriage to Akubiro and caused a notice of pending action ( “ lis pendens ” ) to be recorded against the Chino property

. 2 Akubiro defaulted in both cases. The court entered judgment against Akubiro in the amount of $327,994 on January 4, 2019.

In July 2019, the court in the marital dissolution action entered a judgment dissolving the marriage . The judgment award ed the Chino property , valued at $630,000, to Isong as her sole and separate property. It assigned other marital properties , identified as quasi

- community propert ies located in Equatorial Guinea and Spain , with an estimated collective value of

1 I nvoices dated September 6, 2014, identify items purchased such

as shoes priced at $11, 500 per pair , numerous sport jackets for $9,500

- $12, 5 00 each , a leather blazer for $18,000, several tuxedo jackets for $ 12, 0 00 each , multiple cotton shirts at $1,500 each, and t hree pairs of

“ Special Order Assorted Tuxedo Trousers ” for $8,400.

2 Isong testified she filed the lis pendens because she was concerned Akubiro would attempt to sell the house once he received the divorce papers

.4

over $ 4 million , to Akubiro as his sole and separate property

. 3 The court reserved jurisdiction over additional marital properties , and over the issue of

an equalizing payment to Isong

. The cour t also assigned the Bijan debt to Akubiro as his separate obligation , finding that the debt “ was not acquired for the benefit of the community. ” 4

Bijan filed th is case in September 2020, a gainst both Isong and Akubiro , a lleging the marital dissolution judgment qualified as a voidable transfer under the UVTA , and seeking a n award of damages plus a declaration that the Chino Property is held by Isong in constructive trust and

t hat Bijan is entitle d to have the dissolution judgment voided as a sham and a fraud.

3 The property in Spain is described as “ Calle De Colonia Varela, 31 28250 Torrelodones Mad r id Spain (estimated value of $556,727.85 USD)

. ”

4 Family Code section 2625 states “ debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt. ”

Although Bijan argues there is no evidence to support this finding in the dissolution judgment , Isong points out that personal clothing is generally considered to be the separate property of each spouse in a marital dissolution. Moreover, by the time Akubiro purchased the clothing from Bijan , he and Isong had been living apart and in different countries for several years.

While Bijan asserts “ [t]here is no question that the obligation underlying the Bijan Judgment was incurred as a community debt, ” its only support for that assertion, offered in the trial court, was th at Akubiro “ is the pastor of a church and

. . . it is logical that he must dress in fine attire

. ” Bijan offer ed no evidence that Akubiro wore his fine clothing while engaged in his pastoral duties, let alone explained how his doing so would have benefit ted his marital community.5 Isong moved for summary judgment based o n Family Code
section 916, subdivision (a)(2), which states that “ [t]he separate property owned by a married person at the time of the division and the property received by the person in the division is not liable for a debt incurred by the

person ’ s spouse before or during marriage, and the person is not personally liable for the debt, unless the debt was assigned for payment by the person in the division of the property. ”

The court granted summary judgment . It explain ed that although our Supreme C ourt ha s carved out an exception to section 916, allowing a claim to be asserted under the UVTA (formerly the Uniform
Fraudulent Trans fers Act ) 5 to challenge a m arital settlement agreement ( Mejia v. Reed ( 2003) 31 Cal.4th 657, 663 ( Mejia ) ) , that exception did not apply here . S ince the court itself adjudicate d the disposition of the marital property , the court concluded it was not the product of a negotiated
settlement

.

5 T he Legislature amended what had previously been known as the Uniform Fraudulent Transfer Act in 2015 ( s tats. 2015, ch. 44, §§ 1

– 1 5 ) , replacing the word “ fraudulent ” with “ voidable

. ” Although t he enactment added specified burdens of proof (Id., §§ 1

– 3, 6

– 7, 10) , it did not alter the essential elements of a cause of action for a fraudulent or voidable transfer. Thus, as a general rule, we continue to rely on opinions addressing the UFTA. (See Civ. Code, § 3439.14, subd. (d) [UVTA provisions that “ are substantially the same as the [UFTA] provisions ” are to “ be construed as restatements and continuations ” of the former law].)6 DISCUSSION
I. S TANDARD OF R EVIEW In an appeal from an order granting summary judgment, our
review is de novo. ( Coral Construction, Inc. v. City and County of San
Francisco ( 2010) 50 Cal.4th 315, 336 [ “ We owe the superior court no deference in reviewing its ruling on a motion for summary judgment; the standard of review is de novo ” ].)

Bijan contends the trial court erred in its determina tion that Family Code section 916 bars it from attempting to satisfy its judgment agains t Akubiro by executing on the Chino property

. Bijan argues th at the

court ’ s judgment in the marital dissolution case was a transaction that could
be declared void under the UVT A b ased on evidence that Isong pursued the
marital dissolution with the specific goal of preventing Bijan from satisfying its judgment by executing against the Chino home, which was the only marital property located in California

. II.
F AMILY C ODE S ECTION 9 16 Until 198 4 , the rule was that “ a spouse who received community property after a dissolution of marriage was liable for the community debts incurred by the other spouse during the marriage

. ” ( Mejia, supra, 31 Cal.4th at p. 665.) There was no need to establish any unfairness in the marital property division.

However, in 198 4 , “‘ [ t ] he Legislature determined that, under most circumstances, after a marriage has ended, it is unwise to continue the liability of spouses for community debts incurred by former spouses. ’” ( Mejia,

supra, 31 Cal.4th at p. 665. ) Thus, the Legislature enacted former Civil Code7

section 5120.16 0 , which became Family Code section 916 in 199 2 . ( Mejia at p. 665. ) As our Supreme Court explained in Mejia , “[ w ] hen the Legislature enacted former Civil Code section 5120.160, it contemplated that

‘“ [i]n allocating the debts to the parties, the court in the dissolution proceeding should take into account the rights of creditors so there will be available sufficient property to satisfy the debt by the person to whom the debt is assigned, provided the net division is equal. ” ’” ( Mejia, supra , 31 Cal.4th at p. 665)

Here , the court in the marital dissolution case did just that , allocating both the Bijan obligation and more than enough property to satisfy it, to Akubiro. Indeed, Bijan does not dispute that Akubiro owns significant other property ; to the contrary, it offered two witnesses, one in Equatorial G uinea and one in Spain, who confirmed Akubiro was the owner of all the foreign properties assigned to him in the marital dissolution judgment

. III

. T HE UVTA
Nonetheless , despite the prohibition in Family Code section 9 16, Bijan seeks to enforce Ak ubiro ’ s debt against the property awarded to Isong , arguing that pursuant to the UVTA, the court ’ s decision to assign Isong the home she had resided in for a decade, while assigning to Akubiro the various properties located in the country where he lived, can be declared void because it operated as a fraud on Bijan under the UVTA

. We disagree

.

The UVTA provides that “ [a] transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor ’ s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation

. . . [¶] (1) With actual8

intent to hinder, delay, or defraud any creditor of the debtor [ o r ] [¶] ( 2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation

. ” (Civ . Code, § 3 439 .04, subd. (a) (1

- 2) .) 6 If voidability is based on the allegation that a transfer was made without receiving reasonably equivalent value in exchan ge, then the plaintiff must also
establish that the debtor “ was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation. ” (Civ. Code, § 3439.05.)

In Mej ia , the Supreme Court noted that “ [o]n its face, the U[V]TA applies to all transfers

. ” ( Mejia, supra , 31 Cal.4th at p. 664 ; see also Civ

. Code, § 3439.01, subd

. (m) ) , and concluded , based on policy considerations,
that when a couple enters into a marital settlement agreement to divide their property in a dissolution action, that agreement can be challe n ged as a n avoidable transaction unde r the UVTA.

In reaching that conclusion , Mejia drew a clear distinction
between cases which involv e marital settlement agreements and cases which
do not : “ When the court divides the marital property in the absence of a n agreement by the parties, it must divide the property equally [ citation ] , which provides some protection for a creditor of one spouse only

. ” ( Mejia,

supra , 31 Cal.4th at p

. 668.) By contrast, th at statutory requirement of a fair division does not apply in cases where the parties enter into an agreement to divide their property : “ W henever

. . . the parties agree upon the property

6 The debtor in this case is Akubiro. He alone incurred the obligation to Bijan, and he is t he sole debtor named in the Bijan Judgment. Although Bijan would have been entitled to enforce its judgment against community property of Akubiro ’ s marriage to Isong, she is not a debtor. Consequently, a ssertions about Isong ’ s intent in filing for marital dissolution would appear to be irrelevant under the UVTA.9

division, no law requires them to divide the property equally, and the court
does not s crutinize the MSA to ensure that it sets out an equal division. ” ( Id

. at p. 666.) In other words, the Supreme Court recognized that a marital settlement agreement , like any other private agreement , can be a vehicle for fraud.
T he Supreme Court looked to how courts in other states have

“ constru[ed] parallel provisions of the UFTA, ” explaining that in the case of a uniform statutory scheme, consistency of interpretation among jurisdictions is significant. ( Mejia, supra , 31 Cal.4th at p. 664, citing Civ. Code, § 3 4 3 9 .11.) I n making th at point, the court cited a string of cases that
involved marital settlements , rather th an cases that challenge d the court ’ s division of marital property. ( Mejia at p. 664, citing Scholes v. Lehmann (7th Cir. 1995) 56 F.3d 750, 758

– 759 ( Scholes ); Kardynalski v. Fisher (1985)
135 Ill.App.3d 643; Dowell v. Boyer (Okla.Ct.App. 2000) 998 P.2d 206, 209,
212

- 213; Greeninger v. Cromwell (1996) 140 Or e .App. 241; and Federal Deposit Ins. Co. v. Malin (2d Cir. 1986) 802 F.2d 12, 18.) I n Scholes , the court highlighted the same distinction emphasized in Mejia : “ Douglas ’ s transfers
to his ex

- wife were lavish, and the principal ‘ obligation ’ that they are claimed to have discharged was one created by a voluntary settlement that received no judicial scrutiny

. ” ( Scholes at p. 758.)

But unlike in Mejia and the out

- of

- state cases it relies upon,
there was no negotiated marital settlement agreement here

. Instead, Bijan
claims it is the court ’ s own “ J udgment and [ its ] subsequent order for10

appointment of an e lisor to effect a conveyance of the Chino Property ” that
constitute the relevant “ transfer ” under the U VTA. 7

Bijan argues that Mejia supports the conclusion that a court judgment c ould qualify as a voidable “ transfer ” under the UVTA, claiming
that the c ourt ’ s citation to Britt v. Damson (9th Cir. 1964) 334 F.2d 896, 899 ( Britt ) reflects that determination. We are not persuaded

. I t is true Britt
was cited in Mejia , and also that in Britt the 9th Circuit concluded a court ’ s division of property in a marital dissolution could theoretically qualif y as a fraudulent “ transfer ” under Washington law. But the Mejia case characterizes Britt as a “ but see ” citation, thus identifying it as an outlier from the string of marital settlement cases Mejia relies upon. ( Mejia, supra , 31 Cal.4th at p. 6 6 4.) 8

A court ’ s judgment, the product of its own evaluation of the
evidence and the law, is a different creature than a private agreement entered into between spouses. As Bijan acknowledges, when the court renders a judgment in a ma rital dissolution, it is required to divide the

7 “ [A]n elisor is a person appointed by the court to perform functions like the execution of a deed or document. [Citation.] A court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents. ” ( Blueberry Properties, LLC v. Chow (2014 ) 230 Cal.App.4 th 1017, 1020.) As Isong explains, the court appointed an elisor in this case because Akubiro refused to cooperate in effectuat ing the transfer of the Chino property into her name following the dissolution judgment.

8 We also note that having been decided in 1964, Britt long predates California ’ s enactment of the predecessor to Family Code section 916. Thus, at the time Britt was decided, California routinely allowed creditors of one spouse to satisfy their claims out of property awarded to the other spouse in a marital dissolution. That policy has changed.11

marital property in a manner that is fair and equal to both parties. W e are required to presume it did so. ( Wells Fargo & Co. v. City etc. of S.F. (1944)
25 Cal.2d 37, 40 [ “‘ [e]very presumption is in favor of the validity of the judgment, and any condition of facts consistent with its validity (and not affirmatively contradicted by the judgment roll) will be presumed to have existed rather than one which will defeat it ’” ] .)

Further, it was settled by our Supreme Court as far back as 1891 that o nce a judgment is final, it cannot be attacked on the basis it is wrong on
the merits or was even the product of one party ’ s fraud on the court : “ That a former judgment or decree may be set aside and annulled for some frauds there can be no question ; but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony

. ” ( Pico v. Cohn (1891)
91 Cal. 129, 133 ( Pico ) .) That rule has not changed

. (See e.g. , Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725

- 726 [a judgment cannot be set aside based upon court error]; Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1156 [ “ A collateral attack will lie only for a claim that the judgment is void on its face for lack of personal or subject matter jurisdiction or for the granting of relief which the court has no power to grant ” ] .)

Bijan alludes to th is well

- established rule when it points out that
in Mejia , the c ourt “ noted pointedly that under both federal and state law, a dissolution judgment may be set aside on the ground that it was obtained by
extrinsic fraud. ” (Italics added.) That was the rule announced in Pico in
1891

. Extrinsic fraud

— where a party was deprived of an opportunity to participate in the litigation

— is grounds for setting aside the judgment,12

whereas intrinsic fraud

— flaws in the proceeding or the substance of the judgment

— is not.

W hen Bijan relies on Isong ’ s alleged fraud in obtaining the

court ’ s judgment dividing marital property as a basis for relief under the UVTA, it is making a n argument based on a theory of intrinsic fraud

— i.e.,
that the substance of the judgment is incorrect

— rather than extrinsic fraud.
We reject th at argument

.

We also reject Bijan ’ s suggestion that a judgment obtained by default should not be consider ed a real judgment because it is “ functionally the equivalent of a marital settlement agreement, particularly where the moving petitioner is the only source of evidence on which an adjudicating court can rely in effecting its equalizing calculus

. . . . ” There is no precedent for the suggestion that judgments are entitled to differing levels of deference based on how they were obtained

.

Bijan argue s that in the case of default in a marital dissolution

case, the court will give the petitioner whatever she seeks . T hat suggestion
i s belied by Family Code section 2336 , w hich expressly prohibits the court from basing its judgment on a party ’ s default. Section 2336 states “ the court
shall

. . . require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit

. ” (Fam. Code, § 2336, subd. (a).) And with respect to marital property, the statu t e requires that “ [i]n all cases where there is a community estate, each affidavit or offer of proof shall include an estimate of the value of the assets and the debts the declarant or affiant proposes to be distributed to each party, unless the declarant or affiant has filed, or concurrently files, a complete and accurate property
declaration with the court. ” ( Ibid. )13 In accordance with that default standard , Isong provided the
court in the marital dissolution case with evidence to support her clai ms and
her requested distribution of marital property , including declarations of appraisers to support her claimed valuation of the properties.

Finally, Bijan relies on two cases, Frankel v. Boyd (1895) 106 Cal. 608, 614

- 615 ( Frankel ) , and In re Spirtos ( 9th Cir. 1995) 56 F.3d 1007, 1009 ( Spirtos ) , in support of the proposition that California has “ a hoary history ” of protecting creditor ’ s rights in the wake of a marital dissolution. But Frankel was decided nearly a century before our Legislature adopted the predecessor to Family Code section 916 , which severely curtailed the earlier right of a creditor to pursue its claim against the property awarded to the nondebtor spouse in a marital dissolution

.

And wh ile Spirtos was decided in the wake of the changed policy,
it supports its conclusion that “ [u]nder California law, a divorce decree transfers property only subject to the parties ’ existing liabilities to creditors, ” by citing Frankel and to two other cases which were also decided prior to the change in law. ( Spirtos, supra , 56 F .3d at p. 1009, citing Wikes v. Smith (9 th Cir. 1972) 465 F.2d 1142, 1146

- 11 48 , and Robertson v. Willis (1978)
77 Cal.App.3d 358, 362

- 3 63 Additionally, Spirtos involves a mar ital settlement agreement, rather than a court division of marital property. ( Spirtos at p. 100 8.)
IV.
F RAUD Because we conclude that Family Code section 916 precludes Bijan from seeking to satisfy its judgment against Akubiro out of the property awarded to Isong in the marital dissolution action, we need not
address the substance of its fraud allegations

.14 However, some of Bijan ’ s assertions are so extreme they merit
our attention

. Bijan contends I song “ lied ” to the court in the marital
dissolution action and acted “ like a thief in the night, ” when she claimed a quasi

- community i nterest in the foreign properties awarded to Akubiro and
that she lied about their value when she estimated that th e total value was significantly greater than the value of the Chino property that was awarded
to her . Bijan explains th is alleged fraud was revealed when Isong later testified in a deposition that she believed being awarded an ownership
interest in the marital properties located in Equatorial Guinea would have no value to her because she could never have sold them or tapped into their
value

. Bijan offers no evidence , beyond the fact that the foreign properties were held in Akubiro ’ s name alone, to suggest they did not qualify

as quasi

- community propert y

. Under California law, all pro perties , wherever situated, that are acquired by either spouse while domiciled elsewhere , qualif y as quasi

- community pro perty if they would have been community property had the acquiring spouse been domiciled in California at the time of acquisition . (Fam. Code, § § 125, 760.)

Second, contrary to what Bijan suggests , Isong never asserted in her deposition that she believed the Equatorial Guinean properties awarded to Ak u b iro had no market value; instead, her position was that if she had
been awarded an ownership interest in those properties in the marital
dissolution (rather than the right to an equalizing payment) , she would not have been able to enforce that interest because the properties were all held in Akubiro ’ s name and he has significant influence in Equatorial Guinea

. None of that s uggests the properties do not have significant value that could be tapped by Akubiro ’ s commercial creditors , such as Bijan

.15 Bijan does not dispute Akubiro ’ s ownership of the foreign properties, nor does it assert that their value would be insufficient to satisfy its judgment agains t Akubiro. To the contrary, Bijan provided evidence from witnesses in both Equatorial Guinea and Spain, who confirm ed Akubiro ’ s ownership of the listed properties and did not dispute th at they have
substantial value. T he estimated value of the Spanish property alone would be sufficient to satisfy Bijan ’ s judgment. There is nothing in our record to suggest that Spain would not cooperate in Bijan ’ s effort to enforce a valid foreign judgment.
V.

D ECLARATORY R ELIEF C AUSE OF A CTION Bijan also argues that even assuming it cannot state a claim under the UVTA, the trial court erred by summarily adjudicating its cause of action for declaratory relief. According to Bijan, it s claim for declaratory relief is warranted based on two distinct equitable arguments.

First, Bijan claims that “ Isong will be unjust ly enrich ed if the
Dissolution J udgment is allowed to stand [because it] excus[es] her from a ny liability for the community debt incurred by her husband. ” But that assertion fails for the same reason the UVTA claim fails: it asks the court to
allow Bijan to enforce its judgment against the property awarded to Isong in
the marital dissolution, despite the fact that Bijan ’ s judgment was not assigned to her. That is what Family Code section 916 is designed to prohibit. 9

9 Additionally, the argument ignores the marital dissolution court ’ s specific finding, in its judgment, that Akubiro ’ s choice to spend an enormous sum on personal clothing, while living separately from his wife in a foreign country, was not done for the benefit of the community.16 Bijan also argues declaratory relief is justified because “ this is an appropriate case for application of the equitable doctrine of marshaling

assets. ” (See Civ. Code, § 3433.) Civil Code section 3433 states that when a judgment creditor is entitled to resort to any one of several funds for the satisfaction of its claim, but a second creditor is limited to only one fund, the
second creditor can require the first creditor to seek satisfaction from the
other f unds so that both creditors can be paid.
Under Bijan ’ s t heory , Isong would be the first creditor, who had access to all the properties owned by the marital community in her marital
dissolution action , while Bijan is the second creditor who had access to only the Chino property for purposes of collecting its judgment

. Under those
circumstances , Bijan argues Isong should have been required to leav e the Chino property available for Bijan to collect its judgment

. Family Code section 916 prohibits that result without regard to the underlying justification.

Finally, Bijan assert s the award of the Chino property to Isong

was errone ous because prior to the dissolution, the property was held by Isong and Akubiro in joint tenancy, rather than as community property. Bijan contends that as joint tenancy property, “ the Chino Property never should have been subject to division at all under Fam. C[ode ,] § 2550. ” Again we disagree

.

Family Code section 2581 requires “ [f] or the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, o r as community property, is presumed to be community property. ”17 W e find no error in the trial court ’ s award of summary judgment against Bijan.

DISPOSITION

The judgment is affirmed. Isong is entitled to her costs on appeal.

GOETHALS, ACTING P. J.

WE CONCUR:

MOTOIKE, J.

DELANEY, J.