Edward John Glynn v. Cynythia Kay Glynn ( 2022 )


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  • Opinion issued January 20, 2022
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-20-00371-CV
    ———————————
    EDWARD JOHN GLYNN, Appellant
    V.
    CYNTHIA KAY GLYNN, Appellee
    On Appeal from the County Court at Law No. 2
    Galveston County, Texas
    Trial Court Case No. 18-FD-2643
    OPINION
    This is an appeal from a final divorce decree signed on February 7, 2020.
    Edward Glynn and Cynthia Glynn agreed upon the terms of the divorce in a
    mediated settlement agreement signed December 16, 2019. On appeal, Edward
    contends that the trial court abused its discretion by signing a final divorce decree
    that exceeded the scope of the mediated settlement agreement. Specifically, he
    challenges the documents attached as exhibits to the final decree, the requirement
    that he execute and sign them, and the authorization of a wage withholding order
    as a means of payment for contractual alimony. We affirm as modified.
    Background
    Cynthia and Edward were married in May 1996 and ceased living together
    in October 2018. They did not have children. Cynthia petitioned for divorce in
    October 2018, and Edward counter-petitioned in November 2018. Each petition
    was amended before Cynthia and Edward entered into a binding, mediated
    settlement agreement (“MSA”) on December 16, 2019. The MSA approved and
    signed by the parties and their attorneys states:
    This Mediated Settlement Agreement shall act as a shorthand
    rendition of the terms of the parties’ agreement, and formal orders
    shall be prepared consistent with this agreement. If there are any
    disputes in drafting the agreement, the Texas Family Law Practice
    Manual, as amended, shall prevail relative to drafting disputes.
    ....
    Execution of Documents. Each party shall agree to appear at a
    designated time for purposes of executing all documents necessary to
    effectuate the Final Decree of Divorce. Such documents shall include
    but not limited to Special Warranty Deed, Deed of Trust to Secure
    Assumption, Qualified Domestic Relations Order, Quitclaim Deeds,
    Assignments of Escrow Funds, assignments of insurance coverage,
    utility deposits, certificates of title to automobile, power of attorney
    necessary to transfer automobile, signature cards on custodial
    accounts, stock transfer certificates, trust agreements, security
    agreements collateral pledge agreements, assignments of interest, and
    2
    other documents as reasonably necessary to effectuate the finality of
    this agreement.
    ....
    Exchange of Documents/Preparation of Paperwork
    The anticipated documents necessary to finalize this case shall be as
    follows:
    Decree, POA on vehicles, owelty lien, UCC filings, promissory notes
    for [$]1,300,000.
    ....
    The parties agree to contractual alimony of $1,300,00.00. This debt
    shall be paid beginning February 1, 2020 at $10,833.33 per month for
    120 months.
    The debt of $1,300,00.00 will be secured by an owelty lien on the Tiki
    house at 946 Long Reach Drive, Galveston, Texas 77554 and a
    security agreement/note regarding Integrated Systems Group Inc.
    business with UCC filing. In addition, Ed Glynn agrees to maintains
    his New England Life insurance policy and name Cynthia Glynn as
    the sole beneficiary up to the remainder owed under this agreement.
    Additionally, the parties crossed out the portion of the MSA that would
    require them to return to the mediator to resolve drafting disputes, leaving the trial
    court to decide future drafting disputes. On December 2019, Cynthia and her
    counsel appeared to prove up the MSA and seek a rendition of judgment on its
    terms. The trial court granted a divorce and set a date for the entry of the decree.
    On January 31, 2020, the court held a contested entry hearing regarding the
    form of the decree. Edward’s trial counsel objected to two portions of the proposed
    decree. First, he objected that the lien on the marital residence should be in the
    3
    amount of $300,00.00 instead of $1,300,00.00. Second, he requested that a special
    warranty deed be drafted in addition to the owelty lien on the marital residence.1
    Regarding the first objection, the trial court found that the MSA specifically
    stated that the lien amount would be $1,300,00.00, not $300,000. As to the second
    objection, Cynthia’s counsel responded that a special warranty deed was
    unnecessary. The court ordered that the decree include an owelty lien with the
    conveyance.
    In February 2020, the decree was signed by the trial court. It was approved
    as to form by both parties’ counsel and approved as to both form and substance by
    Cynthia. On March 3, 2020, Edward moved for a new trial and to modify, correct,
    or reform the decree. He complained that the court’s judgment erroneously
    included command language compelling him to execute ancillary documents and
    that the ancillary documents were erroneously attached as exhibits. He argued that
    the exhibits were not contemplated by the MSA nor agreed to by the parties. He
    also argued that the court imposed terms and conditions on him that were not part
    of the MSA, such as post-judgment interest on the contractual alimony, a partition
    agreement, a real estate lien, and a deed of trust. Edward filed a brief in support of
    1
    Owelty is the difference in value that results when a court divides property into
    shares of unequal value in partition proceedings. Sayers v. Pyland, 
    161 S.W.2d 769
    , 772 (1942). The court may then order an owelty payment to equalize the
    shares’ value and impose a lien on the greater share in favor of the recipient of the
    lesser share to secure the owelty payment. See 
    id.
    4
    his motion that requested that at minimum, the trial court exclude all wage
    withholding language and exclude the owelty of partition agreement, real estate
    lien, and deed of trust which were attached as exhibits to the final decree.
    Cynthia responded that Edward failed to show good cause for obtaining a
    new trial and failed to cite any judicial error in need of modification. Cynthia
    argued that the complained-of exhibits attached to the final decree were necessary
    to properly obtain an owelty lien to secure the $1,300,00.00 owed by Edward to
    Cynthia as contractual alimony. She argued that this was both permissible under
    Texas law and agreed upon by the parties in the MSA incorporated in the decree.
    Cynthia agreed that Exhibit C, the real estate lien note, erroneously included
    interest. She stated that the proper remedy was a motion for judgment nunc pro
    tunc.
    The trial court denied Edward’s motions and ordered that a nunc pro tunc
    order correct the real estate lien note to reflect that no interest accrued on the debt
    Edward owed Cynthia. Edward appealed. As of the time of appeal, the trial court
    has not entered the nunc pro tunc order.
    Edward complains of two issues on appeal. First, he argues that the trial
    court abused its discretion by attaching transactional documents as exhibits to the
    final decree that were neither contemplated by the MSA nor agreed upon in
    advance. He also argues that the trial court abused its discretion by including
    5
    wording in the final decree that commands that he execute the documents. In his
    second issue, he argues that the trial court erred by including wage withholding as
    a means of collecting contractual alimony. We modify the judgment to remove
    interest from the real estate lien and to remove reference to wage withholding as a
    means of collecting contractual alimony. We affirm the judgment as modified.
    Exhibits Contemplated by the MSA
    On appeal, Edward asserts that the trial court abused its discretion by
    attaching several transactional instruments to the final decree because they were
    neither contemplated by the MSA nor agreed upon in advance. The exhibits he
    complains of are:
    Exhibit A           Owelty of Partition Agreement
    Exhibit B           Owelty of Partition Deed
    Exhibit C           Real Estate Lien Note
    Exhibit D           Deed of Trust
    Exhibit E           Security Agreement
    He also asserts that the trial court abused its discretion by attaching the exhibits to
    the decree and by commanding that he execute them in the final decree.
    Cynthia responds that the exhibits were contemplated by the MSA and
    necessary to effectuate the security for full payment of contractual alimony.
    Cynthia argues that the MSA states that the parties agreed to follow the Texas
    6
    Family Law Practice Manual for drafting the final decree. The practice manual
    specifically contemplates attaching documents for the conveyance of property to
    the final decree as exhibits. She also argues that the language commanding Edward
    to execute the documents is as suggested by the practice manual. We agree with
    Cynthia.
    A.    Applicable Law and Standard of Review
    It is well settled that an MSA that meets certain statutory formalities “is
    binding on the parties and requires the rendition of a divorce decree that adopts the
    parties’ agreement.” Milner v. Milner, 
    361 S.W.3d 615
    , 618 (Tex. 2012) (citing
    TEX. FAM. CODE § 6.602(b)–(c)). Unlike other settlement agreements in the family
    law context, the trial court is not required to determine if the agreed property
    division is “just and right” before approving an MSA that satisfies the statutory
    requirements. Highsmith v. Highsmith, 
    587 S.W.3d 771
    , 775 (Tex. 2019). When
    the agreement complies with the statutory formalities, it is binding on the parties as
    soon as executed and a party is “entitled to judgment on the mediated settlement
    agreement not withstanding Rule 11, Texas Rules of Civil Procedure, or another
    rule of law.” TEX. FAM. CODE § 6.602(b)–(c). The parties do not dispute that the
    MSA contains the required formalities of Section 6.602 of the Family Code. See id.
    A trial court must enforce an MSA that meets the statutory requirements
    unless a party demonstrates that the MSA was illegal or was procured by fraud,
    7
    duress, coercion, or other dishonest means. Boyd v. Boyd, 
    67 S.W.3d 398
    , 403
    (Tex. App.—Fort Worth 2002, no pet.). When parties reach a settlement
    agreement, the final judgment must be in strict or literal compliance with that
    agreement. Chisholm v. Chisholm, 
    209 S.W.3d 96
    , 98 (Tex. 2006) (per curiam)
    (citing Vickrey v. Am. Youth Camps, Inc., 
    532 S.W.2d 292
    , 292 (Tex. 1976) (per
    curiam)). The law does not require that the parties agree to all of the terms
    necessary to effectuate the purposes of the agreement; it is necessary only that the
    parties reach an agreement as to all material terms. McLendon v McLendon, 
    847 S.W.2d 601
    , 606 (Tex. App.—Dallas 1992, writ denied). A judgment is not in
    “strict or literal compliance” with the terms of the agreement if it improperly
    removes or adds material terms. Chisholm, 209 S.W.3d at 98 (quoting Vickrey, 532
    S.W.2d at 292). A trial court may modify the terms of a settlement agreement as
    long as the modifications do not add terms the parties have not agreed to,
    significantly alter the original terms, or undermine the intent of the parties.
    Wallace v. McFarlane, No. 01-10-00368-CV, 
    2013 WL 4507843
    , at *8 (Tex.
    App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.).
    The “proper inquiry . . . is not a mechanical examination of whether the
    divorce decree varies from the terms of the MSA. Rather the inquiry is whether
    variances by the trial court significantly alter the parties’ written agreement in a
    way that deviates from the parties’ intent as manifested in that agreement.” Davis
    8
    v. Davis, No. 01-12-00701-CV, 
    2014 WL 890899
    , at *9 (Tex. App.—Houston [1st
    Dist.] Mar. 6, 2014, no pet.) (mem. op.) If the decree adopts mechanisms to
    enforce the parties’ agreement while remaining consistent with their intent, it is
    enforceable. 
    Id.
    Because an MSA is a contract, we look to general contract interpretation
    principles to determine its meaning. Loya v. Loya, 
    526 S.W.3d 448
    , 451 (Tex.
    2017); TEX. CIV. PRAC. & REM. CODE § 154.071(a) (“If the parties reach a
    settlement and execute a written agreement disposing of the dispute, the agreement
    is enforceable in the same manner as any other written contract.”). When
    construing a contract, the court must ascertain the intentions of the parties as
    expressed in the writing itself. Loya, 526 S.W.3d at 451 (citing Italian Cowboy
    Partners, Ltd. v. Prudential Ins. Co., 
    341 S.W.3d 323
    , 333 (Tex. 2011)). The court
    gives terms “their plain, ordinary, and generally accepted meaning unless the
    instrument shows that the parties used them in a technical or different sense.”
    Heritage Res., Inc. v. NationsBank, 
    939 S.W.2d 118
    , 121 (Tex. 1996). If the words
    used in the written instrument can be given a certain or definite legal meaning or
    interpretation, then it is not ambiguous, and the court will construe the contract as a
    matter of law. Toler v. Sanders, 
    371 S.W.3d 477
    , 480 (Tex. App.—Houston [1st
    Dist.] 2012, no pet.). Courts must enforce an unambiguous contract as written and
    may not consider extrinsic evidence for the purpose of creating an ambiguity or
    9
    giving the contract a meaning different from that which its language imports. 
    Id.
    The parties do not argue that the MSA or decree are ambiguous.
    B.    Analysis
    We address each exhibit in turn:
    1.    Exhibit A: Owelty of Partition Agreement
    Edward contends that Exhibit A, an owelty of partition agreement, was not
    contemplated by the MSA. Cynthia responds that the document is necessary to
    effectuate the parties’ agreement. We agree with Cynthia.
    Exhibit A, the owelty of partition agreement, is in accordance with the MSA.
    The MSA approved and signed by the parties states that it shall “act as a shorthand
    rendition of the terms of the parties’ agreement, and formal orders shall be
    prepared consistent with the agreement.” In the MSA, the parties agreed that
    Edward would pay Cynthia contractual alimony of $1,300,00.00, paid in monthly
    installments for 120 months. The MSA states that the debt shall be secured by “an
    owelty lien on the Tiki House . . . and a security agreement/note regarding
    [Edward’s business] with UCC filing.”
    The MSA contemplates the later creation and signing of ancillary documents
    necessary to effectuate the parties’ agreement. The MSA states:
    Execution of Documents. Each party shall agree to appear at a
    designated time for purposes of executing all documents necessary to
    effectuate the Final Decree of Divorce. Such documents shall include
    but not be limited to Special Warranty Deed, Deed of Trust to Secure
    10
    Assumption, Qualified Domestic Relations Orders, Quitclaim Deeds,
    Assignments of Escrow Funds, assignments of insurance coverage,
    utility deposits, certificates of title to automobile, power of attorney
    necessary to transfer automobile, signature cards on custodial
    accounts, stock transfer certificates, trust agreements, security
    agreements, collateral pledge agreements, assignments of interest, and
    other documents as reasonably necessary to effectuate the finality of
    this agreement.
    The MSA also states that the anticipated documents necessary to finalize the
    case include: “decree, POA on vehicles, Owelty Lien, UCC filings, promissory
    notes for [$]1,300,000” Finally, the MSA includes that the debt of $1,300,00.00
    will be secured by an owelty lien against the Tiki house and a security agreement
    regarding Edward’s business with UCC filing.
    The language of the MSA clearly shows that the parties intended that
    additional documents would be drafted and signed by the parties in order to
    effectuate their agreement for property division. The MSA was not a final
    conveyance of any property.
    Exhibit A merely restates and complies with the final decree language. The
    trial court did not significantly alter the parties’ written agreement or deviate from
    their intent as manifested in the MSA. Davis, 
    2014 WL 890899
     at *9. The trial
    court did not abuse its discretion in attaching Exhibit A to the final decree nor in
    ordering Edward to execute it, as both were contemplated by the MSA.
    We overrule Edward’s issue related to Exhibit A.
    11
    2.     Exhibit B: Owelty of Partition Deed
    Edward argues that Exhibit B was not contemplated by the MSA.
    Specifically he argues that the MSA contemplated a lien of $300,000 rather than
    $1,300,000 on the Tiki house. We disagree.
    The parties clearly anticipated the possibility of two separate events
    regarding the house: a lien against the house and the sale of the house. Each event
    was tied to a different amount of money. The language in the MSA expressly states
    that the “[d]ebt of $1,300,000.00 will be secured by an owelty lien on the Tiki
    House . . . and a security agreement/note regarding [Edward’s business] with UCC
    filing.” The MSA does not contemplate that that lien is in the amount of only
    $300,000.
    The only mention of $300,000 is in the last paragraph describing the parties’
    agreement for contractual alimony. It states, “Should Ed Glynn sell [the Tiki
    house], any sale proceeds of the house up to $300,000 will be applied to the
    remaining amount of [alimony] debt.”
    Exhibit B correctly states that a lien exists against the Tiki house in the
    amount of $1,300,000. The trial court considered the parties’ arguments regarding
    this provision at both the entry hearing and the post-trial motion hearing. The trial
    court did not abuse its discretion in finding that Exhibit B states that the debt of
    12
    $1,300,000 will be secured by an owelty lien on the Tiki house as contemplated by
    the MSA.
    To the extent Edward argues that owelty of partition deed was not in
    conformance with the MSA because it was not specifically listed in the MSA, the
    exhibits did not need to be specifically listed in the MSA to be in conformance
    with it. The MSA’s “Execution of Documents” section states that the parties will
    appear to execute all documents necessary to effectuate the divorce. The section
    states that the documents “shall include but not be limited to [various documents].”
    This indicates the parties’ agreement to create and sign additional documents to
    effectuate their agreement. Exhibit B is in “strict or literal compliance” with the
    MSA. Chisolm, 209 S.W.3d at 98.
    We overrule Edward’s issue related to Exhibit B.
    3.     Exhibit C: Real Estate Lien Note
    Edward argues that Exhibit C erroneously applies 6% interest on Edward’s
    financial obligation to Cynthia. Cynthia concedes that the exhibit is erroneous and
    should not include interest on the contractual alimony as there was no agreement to
    interest in the MSA. The exhibit also conflicts with the final decree which states
    that the contractual alimony “shall bear interest at 0% percent per year . . . .”
    At the motion for new trial hearing, the trial court ordered that Cynthia’s
    attorney draft and circulate for entry a judgment nunc pro tunc to correct Exhibit C
    13
    and reflect that Edward’s $1,300,000 debt did not bear interest. The record does
    not reflect that a judgment nunc pro tunc correcting this clerical error has been
    entered.
    We modify the judgment, specifically the real estate lien note attached as
    Exhibit C to the judgment, to reflect that the contractual alimony bears no interest.
    4.     Exhibit D: Deed of Trust
    Edward contends that the inclusion of Exhibit D, a deed of trust, in the final
    decree was reversible error because it was not agreed to in the MSA and is “grossly
    overly broad.” Specifically, he complains that its terms and conditions are contrary
    to the express provision of the MSA.
    As discussed, the parties intended that additional documents, other than the
    MSA and decree themselves, would be drafted as necessary to effectuate the
    agreement reached in the MSA. The MSA’s Execution of Documents section states
    “Each party shall agree to appear at a designated time for purposes of executing all
    documents necessary to effectuate the Final Decree of Divorce. Such documents
    shall include but not be limited to . . . Deed of Trust to Secure Assumption . . . .”
    The parties clearly contemplated that the deed of trust would be executed after the
    MSA and incorporated in the final decree. Additionally, the body of the final
    decree mentions that a deed of trust is to be signed to “further secure payment of
    the debt” owed by Edward to Cynthia.
    14
    Edward argues that the deed of trust prohibits him from selling the Tiki
    house without Cynthia’s permission and that it adds costs and attorney’s fees in the
    event of default. In his motion for new trial he stated that the deed of trust
    “contains numerous provisions, obligations, burdens and other impositions” that
    were contrary to the MSA. He then highlighted the sections of Exhibit D that he
    argued were erroneous.2 The “proper inquiry” of whether a divorce decree varies
    from the terms of an MSA is whether the trial court significantly altered the
    parties’ written agreement. Davis, 
    2014 WL 890899
    , at *9. The MSA states that it
    is “the shorthand rendition of the terms of the parties’ agreement.” The deed of
    trust and its specific terms are not in conflict with the MSA. The deed of trust is
    necessary to effectuate the parties’ agreement regarding contractual alimony.
    We overrule Edward’s issue related to Exhibit D.
    5.     Exhibit E: Security Agreement
    Edward argues that the scope and breadth of the security agreement are in
    conflict with the MSA. He argues that Exhibit E was incorrectly attached to the
    final decree and that neither of the parties agreed upon it in advance.
    2
    Cynthia argues that Edward did not preserve this error for our review because his
    motion for new trial did not specifically explain his complaints regarding Exhibit
    D. While the body of his motion did not explain the specific provisions, he
    highlighted the provisions he believed were erroneous on the exhibit and
    submitted it as an attachment to his motion. The trial court was on notice of what
    specific provisions Edward was complaining of and thus, he preserved this issue
    for our review. See TEX. R. APP. P. 33.1.
    15
    Exhibit E, the security agreement, follows the MSA. The MSA states that
    the debt of $1,300,000 will be secured by several instruments. These instruments
    include “a security agreement/note regarding Integrated Systems Group Inc.
    business with UCC filing.” The MSA also states that Edward will maintain a life
    insurance policy with Cynthia as sole beneficiary for whatever amount is owed of
    the $1,300,000.00 debt. According to the MSA, if Edward sells the business and
    starts a new business while his contractual alimony obligation remains outstanding,
    he will sign a security agreement regarding the new business. Finally, the MSA
    states that the anticipated documents to be drafted include “UCC filings,
    promissory notes for [$]1,300,000.” The purpose of these documents is to put
    creditors and other third parties on notice of the debt. The parties agreed that
    Edward would execute a security agreement regarding his business and the
    contractual alimony obligation.
    The trial court reviewed the exhibit at the entry hearing and through
    Edward’s post-trial motions. The trial court did not err in deciding that Exhibit E
    complied with the MSA and effectuated the parties’ agreement. Davis, 
    2014 WL 890899
     at *9.
    We overrule Edward’s issue related to Exhibit E.
    16
    6.    Documents Attached to Final Decree of Divorce and Decree’s
    Command to Sign Them
    Edward argues that the trial court abused its discretion in including closing
    documents as Exhibits A through E to the final decree and commanding Edward to
    execute them. We disagree. The MSA states that if there are drafting disputes, they
    will be resolved according to the Texas Family Law Practice Manual. See M.B. v.
    R.B., No. 02-19-00342-CV, 
    2021 WL 2252792
    , at *1 n.1 (Tex. App.—Fort Worth
    June 3, 2021, no pet.) (mem. op.) (stating MSAs often reference the forms
    published in the Texas Family Law Practice Manual as a means of their reduction
    to writing in a final decree). The final decree of divorce follows Form 23-1 from
    the Texas Family Law Practice Manual. See State Bar of Texas Family Law
    Section Council, Texas Family Law Practice Manual 166 (2020 ed.). The form
    instructs the drafter to “include if applicable; in the form attached to this Final
    Decree of Divorce as Exhibit [exhibit number/letter].” 
    Id.
     The final decree follows
    the Texas Family Law Practice Manual and is in strict and literal compliance with
    the MSA. Chisholm, 209 S.W.3d at 98. The trial court did not abuse its discretion
    by including the documents as exhibits.
    Similarly, the form for the decree in the Texas Family Law Practice Manual
    states: “[Name] is ORDERED to appear in the law offices of {name of attorney] at
    [location], at [time] on [date], and to execute, have acknowledged, and delivered to
    [name] these instruments: . . . .” Texas Family Law Practice Manual at 166. The
    17
    command language in the final decree is as suggested in the practice manual’s
    form. The final decree states, “[Edward] is ORDERED to appear at County Court
    2, 600 59th Street Galveston, Texas at 9:15 a.m. February 7,2020 and to execute,
    have acknowledged, and deliver to [Cynthia] these instruments: . . .” The language
    is in strict or literal compliance with the MSA. Chisholm, 209 S.W.3d at 98.
    We overrule Edward’s issue related to the inclusion of the exhibits and the
    command language to execute the documents in the final decree.
    Wage Withholding
    In his second issue, Edward contends that the trial court abused its discretion
    when it ordered a wage withholding order to be issued for the purpose of enforcing
    the terms of contractual alimony. Cynthia responds that Edward did not preserve
    this issue for our review, but she does not object to removing this language from
    the final decree.
    The final decree states “Payment Procedures—All alimony payments, except
    as provided otherwise, will be made by income withholding, personal check,
    money order, or cashier’s check payable to [Cynthia].” At the entry hearing,
    Edward’s counsel expressly stated that wage withholding was allowed by the
    MSA. Edward did not specifically mention wage withholding in his motion for
    new trial. Instead, he more generally stated that the court’s judgment
    impermissibly imposed terms and conditions on him that were not part of the
    18
    MSA. His brief in support of his motion mentions the error of including wage
    withholding.
    We need not decide whether he preserved this issue for our review as
    Cynthia reiterates on appeal that she has no objection to eliminating references to
    wage withholding from the decree. She also proposed deleting wage withholding
    in the proposed judgment nunc pro tunc.
    We modify the decree to eliminate wage withholding as a means of
    collecting the contractual alimony.
    Conclusion
    We modify the final decree of divorce, specifically the real estate lien note
    attached as Exhibit C, to reflect that the contractual alimony bears no interest. We
    also modify the decree to remove wage withholding as a means of payment for
    contractual alimony. We affirm the trial court’s decree as modified.
    Peter Kelly
    Justice
    Panel consists of Chief Justice Radack and Justices Kelly and Landau.
    19
    

Document Info

Docket Number: 01-20-00371-CV

Filed Date: 1/20/2022

Precedential Status: Precedential

Modified Date: 1/24/2022