Marriage of Fidelman CA4/1 ( 2023 )

Filed 7/20/23 Marriage of Fidelman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of KELLY and
MARK FIDELMAN.
D079402
KELLY FIDELMAN,
Respondent, (Super. Ct. No. 18FL012451N)
v.
MARK FIDELMAN,
Appellant.
APPEALS from orders of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed.
Mark Fidelman, in pro. per., for Appellant.
Linda Cianciolo for Respondent.
In October 2018, Kelly Fidelman (Kelly) filed for divorce and requested
a domestic violence restraining order (DVRO) against her then-husband,
Mark Fidelman (Fidelman). The trial court issued a DVRO in 2018 and
renewed the order in March 2020 for one year. The court awarded Kelly
attorney fees in March 2021, and in May 2021, the court renewed the March
2020 DVRO and made it permanent.
Fidelman appeals the trial court’s 2021 DVRO renewal and fees orders,
arguing that the trial court erred by: (1) finding that Fidelman cyberstalked
Kelly; (2) relying on Fidelman’s litigation conduct as grounds for renewing
the DVRO in violation of the litigation privilege (Civ.Code, § 47, subd. (b));
(3) finding, by a preponderance of the evidence, that Kelly had a reasonable
apprehension of future abuse; (4) excluding testimony from the parties’ minor
son; (5) infringing on Fidelman’s Second Amendment rights by prohibiting
him from possessing firearms in the DVRO; (6) authorizing a one-year DVRO
renewal in March 2020 when Family Code section 63451 provides that “[an
order] may be renewed, upon the request of a party, either for five or
more years, or permanently . . . ”; and (7) awarding attorney fees to Kelly
without inquiring about Fidelman’s ability to pay.
We conclude that Fidelman has forfeited any challenge to the trial
court’s findings related to the March 2020 DVRO renewal by failing to appeal
that order. Fidelman has also forfeited his arguments regarding the court’s
reliance on his litigation conduct, his possession of firearms, and his ability to
pay the attorney fees award, by failing to raise these issues in the trial court.
We further conclude that the trial court had a sufficient basis to find that
Kelly had a reasonable apprehension of future abuse. To the extent
Fidelman contends that his son’s testimony should have been admitted
during the May 2021 renewal proceeding, we conclude that the trial court did
not abuse its discretion in excluding his testimony. Accordingly, we affirm.
1 Further statutory references are to the Family Code unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial DVROs and March 2020 DVRO Renewal
The parties have been engaged in contentious litigation since October
2018, when Kelly petitioned for divorce and requested a DVRO against
Fidelman.2 The trial court issued a temporary DVRO in October 2018,
followed by a one-year DVRO issued in November 2018 after an evidentiary
hearing. The November 2018 DVRO required Fidelman to relinquish any
firearms he had in his possession, as authorized by section 6389, subdivision
(a). In May 2019, Fidelman requested a DVRO against Kelly, and in
November 2019, Kelly requested renewal of her existing DVRO against
Fidelman.
After a three-day trial in early March 2020, the court denied
Fidelman’s request for a DVRO and granted Kelly’s renewal request after
finding that Fidelman was the primary aggressor in a cyberstalking incident
that occurred in October 2019. Specifically, the court found that the parties’
minor son took Kelly’s laptop computer from her residence while he was
under Fidelman’s supervision, and that Fidelman viewed and downloaded its
contents. Based on that incident, the court found that Kelly proved she had a
reasonable fear of continued cyberstalking by Fidelman. The court renewed
Kelly’s DVRO for another year through March 2021, extending the
accompanying requirement that Fidelman not possess any firearms.
Fidelman filed a notice of appeal of the March 2020 DVRO in May
2020, but abandoned his appeal in July 2020. In June 2020 he also requested
reconsideration of the March 2020 DVRO renewal, which the trial court
2 The record on appeal does not include most of the documents filed in
the underlying proceedings, so we take certain procedural history from
the register of actions included in the record.
3
denied.3 Fidelman filed another appeal from the denial of his request for
reconsideration, but we dismissed that appeal as untimely.
B. Kelly’s Request for Attorney Fees
Kelly requested attorney fees in July 2020 and the court granted her
request in March 2021, awarding her $53,120 pursuant to section 6344.
Fidelman orally opposed the request at a hearing in March 2021, arguing
that he was not served, that the court should inquire about the source of
Kelly’s legal fee payments, and that proceedings should be stayed pending his
appeal of the trial court’s denial of his motion for reconsideration of the
March 2020 renewal order. In a May 2021 order, the court rejected
Fidelman’s arguments, finding that Fidelman was served with Kelly’s
request for fees and that he failed to file a responsive declaration. In
awarding fees, the court considered Fidelman’s October 2020 income and
expense declaration and the fact that he had equity in a marital asset.
C. May 2021 DVRO Renewal
Kelly requested renewal of the March 2020 DVRO in March 2021. In
April and May 2021, the court heard four days of testimony from the parties
and Matt Albee, a computer expert who had previously testified in March
2020 regarding Kelly’s laptop.
Kelly testified that she was seeking to renew the DVRO because she
felt Fidelman had invaded her privacy, and she worried that he would
continue to harass her. In May 2020, Fidelman used a messaging application
to tell Kelly that she “could have agreed to a deal that would have saved the
3 In addition to his abandoned appeal of the March 2020 DVRO renewal
and leading up to the current appeal, Fidelman has filed appeals in
connection with the denial of his motion for reconsideration of the March
2020 renewal, a petition for peremptory writ, and two petitions for writ of
mandate. All have been dismissed or denied.
4
kids and [Fidelman] a lot of time and money and aggravation[.]” In June
2020, Fidelman messaged Kelly to ask about what happened to certain
furniture. Another time in August 2020, Fidelman messaged Kelly to say
that he knew she was not at home, and that she would not be home for two
days. Kelly was alarmed by this because she never shared her travel plans
with him. When Fidelman sent the above messages, the DVRO limited his
communications with Kelly to those regarding custody and visitation only.
Receiving those messages made Kelly feel bullied, and like she could not “do
anything without [Fidelman] either knowing or giving [her] a hard time
about it[.]”
In June 2020, Fidelman also emailed Kelly’s employer demanding her
employment records and threatening sanctions for non-compliance. In his
emails, Fidelman misrepresented a special master’s orders regarding the
employer’s discovery obligations. Fidelman also threatened the employer’s
in-house counsel with contempt of court, and Kelly’s employer subsequently
retained outside counsel to respond to Fidelman’s subpoenas. Kelly believed
Fidelman’s actions were negatively impacting her employment and
potentially limiting her career advancement.
Albee testified in the 2021 renewal hearing that he felt threatened
after Fidelman sent several emails in May 2020 demanding that Albee turn
over a copy of Kelly’s hard drive after the March 2020 renewal. Fidelman
also threatened “legal action” to “collect financial damages” if Albee did not
hand over the data, which Albee declined to do. When Kelly learned of
Fidelman’s attempts to obtain a copy of her hard drive from Albee, she felt
harassed, believing that Fidelman was “relentless” and that his attempts to
get her data were “never ending.” Kelly testified that since March 2020, she
5
had felt “absolutely afraid” of Fidelman and what he would do absent a
protection order.
Fidelman testified, among other things, about the messages he
exchanged with Kelly after March 2020 and the subpoenas he sent to Kelly’s
employer. At closing, he argued that Kelly’s testimony about fearing
harassment lacked credibility. He contended that because there was no
evidence of physical abuse, there was no need for a DVRO. Fidelman
characterized Kelly’s interpretation of his messages as unreasonable, and he
further argued that Kelly’s fear of negative employment repercussions was
unsubstantiated because she presented no evidence of such repercussions
happening.
After reviewing the evidence, hearing testimony, and considering the
parties’ arguments, the court found that Kelly met her burden of showing by
a preponderance of the evidence that she had a reasonable apprehension of
future abuse. The court began by reminding the parties that it would not
permit Fidelman to challenge the truth of the evidence and findings
underlying earlier orders. The court also observed that “a party’s litigation
strategies and tactics may be evidence of inappropriate behavior that may
provide grounds” for renewing a DVRO.
The court went on to find that a party need not fear physical abuse to
justify renewing a DVRO, and that the nature of the underlying
cyberstalking allegations implicated the invasion of Kelly’s private,
“extremely sensitive information” contained in her laptop. The court credited
Kelly’s testimony regarding her fear that Fidelman would continue to “stalk
her and harass her and disturb her peace.” In contrast, the court found
Fidelman’s testimony lacking in credibility. The court concluded that the
prior findings regarding Fidelman’s cyberstalking conduct and Kelly’s
6
credible testimony were sufficient grounds on their own to support the
reasonableness of Kelly’s apprehension of future abuse.
However, the court found that additional conduct by Fidelman also
supported renewing the DVRO. The court determined that Fidelman “clearly
misrepresented” a discovery order to Kelly’s employer in an attempt to obtain
her personal information, which constituted “an outright violation of the
restraining order.” Similarly, the court found that Fidelman deliberately
manipulated and misled Albee in an attempt to obtain a copy of Kelly’s hard
drive from him, which also constituted a violation of the existing DVRO. The
court concluded that even if Fidelman’s misrepresentations to Albee and
Kelly’s employer were not violations of the DVRO, they were persuasive
evidence supporting the reasonableness of Kelly’s apprehension that
Fidelman would persist in harassing her, absent court-ordered protection. As
for the messages Fidelman sent Kelly regarding subjects unrelated to custody
or visitation, the court concluded those messages were also a violation of the
DVRO.
In light of these findings, the court renewed the DVRO permanently
and prohibited Fidelman from possessing or acquiring ammunition or
firearms. Fidelman timely appealed the permanent DVRO and the award of
attorney fees to Kelly.4
4 The permanent DVRO was filed on May 11, 2021. In his notice of
appeal filed on July 19, 2021, Fidelman indicated he was also appealing the
trial court’s May 18, 2021 order in which the court: (1) continued a hearing on
Kelly’s request for order (RFO) to have Fidelman declared a vexatious
litigant; (2) dismissed Fidelman’s contempt motion; (3) denied Fidelman’s
RFO for an injunction and sanctions; and (4) granted Kelly’s request for
attorney fees and costs under section 6344, awarding her $53,120.
7
DISCUSSION
I
In this appeal from the 2021 DVRO renewal and fees order, Fidelman
challenges aspects of the trial court’s March 2020 DVRO renewal, and for the
first time on appeal, he also raises arguments regarding the litigation
privilege pursuant to Civil Code section 47, subdivision (b),5 the Second
Amendment, and his ability to pay attorney fees. We conclude that Fidelman
has forfeited any challenge to the court’s findings related to the March 2020
renewal by failing to timely appeal that order. We further conclude that
Fidelman has forfeited the other arguments raised for the first time on
appeal.
“California follows a ‘one shot’ rule under which, if an order is
appealable, appeal must be taken or the right to appellate review is
forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8
(Baycol), citing Code Civ. Proc., § 906 [the powers of a reviewing court do not
include the power to “review any decision or order from which an appeal
might have been taken” but was not]; see Kinoshita v. Horio (1986) 186
Cal.App.3d 959, 967 [“If [a] ruling is appealable, the aggrieved
In light of our November 29, 2021 order regarding appealable issues,
and the scope of what is actually addressed in Fidelman’s opening brief, we
construe his appeal of the May 18, 2021 order as limited to the attorney fees
award.
5 Civil Code section 47, subdivision (b), provides in relevant part that a
privileged publication or broadcast is one made “[i]n any (1) legislative
proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to Chapter 2 . . . of Title 1 of Part
3 of the Code of Civil Procedure,” with certain exceptions listed in subsequent
subdivisions.
8
party must appeal or the right to contest it is lost.”].) Fidelman abandoned
his initial appeal from the March 2020 DVRO renewal, and we dismissed as
untimely his subsequent appeal from the order denying reconsideration of the
March 2020 DVRO renewal.
Because Fidelman did not timely appeal the March 2020 DVRO, he
cannot now challenge the findings supporting that renewal. Accordingly, we
conclude that he has forfeited his arguments regarding: (1) whether sufficient
evidence supported the court’s finding that Fidelman cyberstalked Kelly
before the March 2020 renewal; (2) whether a one-year DVRO renewal is
permitted under section 6345; and (3) whether the court should have
admitted testimony from the parties’ minor son at the March 2020 renewal
trial.
Similarly, we conclude that Fidelman forfeited his litigation privilege,
Second Amendment, and ability-to-pay arguments by failing to raise those
objections at trial. “[A] reviewing court ordinarily will not consider a
challenge to a ruling if an objection could have been but was not made in the
trial court. [Citation.] The purpose of this rule is to encourage parties to
bring errors to the attention of the trial court, so that they may be corrected.”
(In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) “Issues presented on
appeal must actually be litigated in the trial court—not simply mentioned in
passing. ‘[W]e ignore arguments, authority, and facts not presented and
litigated in the trial court.’ ” (Natkin v. Cal. Unemployment Ins. Appeals Bd.
(2013) 219 Cal.App.4th 997, 1011, internal quotation marks omitted.)
Here, Fidelman argues on appeal that his litigation tactics and threats
of legal action are “absolutely privileged” under Civil Code section 47,
subdivision (b), and cannot be considered harassment for DVRO purposes.
However, at no time during the April and May 2021 renewal hearings did
9
Fidelman ever assert that the litigation privilege should apply. He argued
that his litigation practices did not constitute harassment, that his actions
did not negatively impact Kelly’s employment, and that her own attorneys
also used the same aggressive tactics against him. But he made no mention
of the litigation privilege, and when the court found that some of Fidelman’s
actions in pursuing discovery supported the reasonableness of Kelly’s
apprehension of future abuse, Fidelman did not object.
Nor did Fidelman object when the court imposed restrictions on his
possession of firearms during the last day of the May 2021 renewal hearing.
Fidelman was aware that the court might impose such restrictions because it
had already done so when granting the temporary DVRO in November 2018
and again in March 2020.6 After the court delivered its oral decision,
Fidelman objected generally to the ruling and requested a new trial, but he
made no mention of the firearms restriction or the Second Amendment. In
both criminal and civil cases, a constitutional claim is generally forfeited by
the failure to assert it in the trial court. (San Diego Police Department v.
Geoffrey S. (2022) 86 Cal.App.5th 550, 579–580 [First and Second
Amendment claims asserted for first time on appeal from gun violence
restraining order were forfeited for failure to raise them in trial court].)
Thus, we conclude that Fidelman forfeited the Second Amendment issue for
appeal.
6 Section 6389, subdivision (b), also requires that any request for a
DVRO provide notice to the respondent that he shall be ordered to relinquish
firearms for the duration of the DVRO. Because the March 2021 DVRO
renewal request is not included in the record on appeal, and Fidelman has
not argued otherwise, we must presume that it complied with this notice
requirement.
10
Lastly, Fidelman also forfeited any challenge to the award of attorney
fees due to his inability to pay. When the court heard Kelly’s request for
attorney fees in March 2021, Fidelman first objected based on improper
service. When the court found that he had been properly served, Fidelman
then argued that Kelly was not paying for her attorneys and should not be
awarded fees. Fidelman also repeated an argument he made earlier in the
hearing that it would be inappropriate to move forward with any proceedings,
including awarding attorney fees, while his appeal was pending. However,
after the court asked if he had anything to add, Fidelman said, “I think I’ve
respectfully put my objections on the record, Your Honor. I think at this
point I’m done.” Notably, none of the objections he made referenced his
ability to pay, even though the court expressly cited Fidelman’s October 2020
income and expense declaration in awarding attorney fees. (See In re
Schleich (2017) 8 Cal.App.5th 267, 292–293 [finding trial court’s reference to
husband’s financial capacity in awarding attorney fees reflected its
consideration of ability to pay, and husband forfeited challenge to court’s
refusal to consider new income and expense declarations because he failed to
object to the ruling].)
Thus, we conclude that Fidelman has waived the litigation privilege,
Second Amendment, and ability-to-pay issues, as well as any challenge to the
court’s findings related to the underlying March 2020 renewal. We therefore
turn to his two remaining non-forfeited challenges.
11
II
Fidelman contends that the trial court erred in finding, by a
preponderance of the evidence, that Kelly had a reasonable apprehension of
future abuse. We disagree.
“Abuse” in the domestic violence context may, under section 6203,
subdivision (a)(4), include engaging “in any behavior that has been or could
be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(4).) Those
behaviors include “stalking, threatening . . . harassing, . . . contacting, either
directly or indirectly, . . . coming within a specified distance of, or disturbing
the peace of the other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.” (§ 6320, subd.
(a).)
Abuse need not be violent or physical to warrant the issuance or
renewal of a DVRO. (See In re Marriage of Nadkarni (2009) 173 Cal.App.4th
1483, 1495–1496 (Nadkarni); § 6345, subd. (a).) “[S]ection 6320 broadly
provides that ‘disturbing the peace of the other party’ constitutes abuse . . . .”
(Nadkarni, at p. 1497.) “[T]he plain meaning of the phrase ‘disturbing the
peace of the other party’ in section 6320 may be properly understood as
conduct that destroys the mental or emotional calm of the other
party.” (Nadkarni, at p. 1497.) To obtain a DVRO, a protected party has the
burden to show by a preponderance of the evidence that a reasonable person
would have a “ ‘reasonable apprehension’ ” of future abuse. (Ritchie v.
Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).)
We review a grant of injunctive relief for abuse of discretion. (Gonzalez
v. Munoz (2007) 156 Cal.App.4th 413, 420 [abuse-of-discretion standard
applies to a grant or denial of a DVRO].) To the extent we are called upon to
review the trial court’s factual findings, we apply a substantial evidence
12
standard of review. (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) As
a trier of fact, the trial judge is required to reject evidence only when it is
“inherently improbable or incredible, i.e., ‘unbelievable per se,’ physically
impossible or ‘wholly unacceptable to reasonable minds.’ [Citations.]” (Lenk
v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968, internal quotation
marks omitted.) On appeal, we do not reweigh the evidence or second guess
the credibility of witnesses. (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1531.) In determining whether substantial evidence supports the
court’s order, we view the evidence in the light most favorable to the
order. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
Here, Kelly testified that she felt Fidelman would continue to invade
her privacy and harass her, absent a DVRO. When describing her reaction to
Fidelman’s attempts to get her hard drive from Albee, she said that Fidelman
was “relentless” and that his attempts to get her data were “never ending.”
Albee himself testified that he felt threatened by Fidelman’s persistent
demands for Kelly’s data and his threats of legal action. Fidelman’s similarly
dogged pursuit of Kelly’s employment information caused Kelly to believe
that his actions would have a negative impact on her employment and limit
her career advancement. The evidence supported her belief, showing that
Fidelman’s threats and demands to Kelly’s employer included
misrepresentations, and subsequently led her employer to retain outside
counsel.
The admitted evidence also included messages Fidelman sent to Kelly
criticizing her for continuing to litigate their divorce, asking about missing
furniture, and commenting on her whereabouts, even though she did not
inform him of her travel plans. At the time Fidelman sent those messages,
the DVRO limited his communications with Kelly to those regarding custody
13
and visitation only. The court justifiably relied on these and other violations
of the existing DVRO in deciding that renewal was appropriate. (See Lister
v. Bowen (2013) 215 Cal.App.4th 319, 335 (Lister) [“It almost goes without
saying that any violation of a restraining order is very serious, and gives very
significant support for renewal of a restraining order.”].) Considering this
evidence, it was also reasonable for the court to credit Kelly’s testimony that
she felt bullied and harassed by Fidelman, and that she could not “do
anything without [Fidelman] either knowing or giving [her] a hard time
about it[.]”
The court thus had a sufficient basis to conclude that Kelly had a
reasonable apprehension that Fidelman would continue disturbing her peace,
which amounts to abuse for DVRO purposes. (See Nadkarni, supra, 173
Cal.App.4th at pp. 1495–1497; § 6320, subd. (a).) Accordingly, we affirm the
court’s finding to that effect.
III
Lastly, we turn to Fidelman’s argument that the trial court should
have allowed testimony from the parties’ minor son into evidence.7 We
conclude that the trial court did not abuse its discretion in excluding his
testimony on relevance grounds.
By way of additional background, in April 2021, Fidelman deposed his
son in connection with a separate civil harassment proceeding without notice
to the other parties and without any of the other parties’ counsel present.
7 To the extent Fidelman argues that his son’s testimony should have
been admitted during the March 2020 renewal proceedings, for the reasons
noted, he has forfeited those arguments by failing to appeal the underlying
order. (See Baycol, supra, 51 Cal.4th at p. 761, fn. 8.) We therefore only
consider Fidelman’s challenge to the exclusion of his son’s testimony during
the May 2021 renewal proceeding.
14
Fidelman then sought to admit his son’s deposition testimony and call him as
a witness during the May 2021 DVRO renewal hearing, purportedly to refute
allegations from the March 2020 renewal, to impeach Kelly’s credibility, and
to describe child abuse allegedly perpetrated by Kelly.
The court found the proposed testimony irrelevant and improper. The
court observed that any alleged child abuse was not properly before the court
because Kelly was the only protected party listed on the DVRO subject to
renewal. The court further noted that custody and visitation issues would be
resolved in a separate proceeding, and that the minor’s testimony would not
be probative in determining whether Kelly has a reasonable apprehension of
future abuse. The court determined that the underlying cyberstalking
findings from March 2020 should not be relitigated, and the court also
decided that it would not allow the minor to provide character testimony.
We use an abuse of discretion standard to review the trial court’s
rulings determining the relevance and admissibility of evidence. (People v.
Green (1980) 27 Cal.3d 1, 24–25; People v. Garcia (2001) 89 Cal.App.4th 1321,
1334.) The court abuses its discretion in deciding whether to admit evidence
only when it acts in an “arbitrary, capricious, or patently absurd manner that
result[s] in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20
Cal.4th 1, 9–10.) Only relevant evidence is admissible (Evid. Code, § 350),
and “[t]he trial court has broad discretion . . . in determining the relevance of
evidence” (People v. Horning (2004) 34 Cal.4th 871, 900).
On appeal, Fidelman only challenges the court’s findings regarding the
relevance of his son’s testimony about the underlying cyberstalking incident,
arguing that the testimony was vital for “clear[ing] up” the allegations that
served as the basis for the March 2020 DVRO. However, as noted, Fidelman
waived his right to challenge the underlying cyberstalking findings, and the
15
trial court reasonably concluded that relitigating the issue was inappropriate
and irrelevant to Kelly’s renewal request. (See Lister, supra, 215 Cal.App.4th
at p. 333 [restrained party in renewal proceedings not permitted to challenge
truth of evidence and findings underlying initial DVRO].) The purpose of the
2021 hearing was to determine whether Kelly could show that she had a
reasonable apprehension of future abuse. (See Ritchie, supra, 115
Cal.App.4th at p. 1290.) Fidelman makes no persuasive arguments in his
brief about how his son’s testimony regarding the October 2019 laptop
incident would be relevant to that inquiry, nor does he explain how the
testimony would be relevant to any alleged conduct after March 2020.
Because the record does not show that the court acted in an “arbitrary,
capricious, or patently absurd manner” in excluding the minor son’s
testimony, we conclude that the court did not abuse its discretion.
DISPOSITION
The DVRO renewal order issued on May 11, 2021, and the order
awarding attorney fees on May 18, 2021, are affirmed. Respondent shall
recover her costs on appeal.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
16