Tassone v. Tassone ( 2020 )

[Cite as Tassone v. Tassone, 2020-Ohio-3151.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Zephynia S. Tassone, :
Plaintiff-Appellee, :
No. 19AP-382
v. : (C.P.C. No. 17DR-4399)
Matthew Tassone, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 2, 2020
On brief: Matthew Tassone, pro se.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
PER CURIAM
{¶ 1} Defendant-appellant, Matthew Tassone, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, granting a
motion for contempt filed by plaintiff-appellee, Zephynia S. Tassone. For the reasons that
follow, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant and appellee were married in July 2011 and have one child. In
November 2017, appellee filed a complaint for divorce. The divorce proceedings have been
extensive, and appellant has previously appealed several of the domestic relations court's
orders to this court. See Tassone v. Tassone, 10th Dist. No. 18AP-912 (May 8, 2019)
(judgment entry) (dismissed for lack of final, appealable order); Tassone v. Tassone, 10th
Dist. No. 18AP-810, 2019-Ohio-1018 (dismissed for lack of final, appealable order);
Tassone v. Tassone, 10th Dist. No. 18AP-677 (Sept. 18, 2018) (journal entry of dismissal)
(dismissed for lack of final, appealable order); Tassone v. Tassone, 10th Dist. No. 18AP-
No. 19AP-382 2
669 (Sept. 18, 2018) (journal entry of dismissal) (dismissed for lack of final, appealable
order); Tassone v. Tassone, 10th Dist. No. 18AP-475, 2019-Ohio-683 (dismissed for lack of
final, appealable order).
{¶ 3} As relevant to the present appeal, on November 30, 2017, appellee moved for
a psychological evaluation, requesting the domestic relations court appoint a "forensic
psychological custodial evaluator * * * to perform a full psychological evaluation of the
parties." (Nov. 30, 2017 Mot. for psychological evaluation.) At a hearing on June 15, 2018,
the court sought clarification of appellee's motion and was advised that appellee sought a
custodial evaluation, rather than a psychological evaluation of appellant.1 Following that
hearing, on June 19, 2018, appellant moved for an order compelling appellee to specify the
basis for her motion for a psychological evaluation and clarify the specific order sought
under that motion. Appellant argued appellee had failed to establish good cause for a
psychological evaluation pursuant to Civ.R. 35(A).
{¶ 4} On July 17, 2018, a magistrate of the domestic relations court conducted a
hearing on the motion for psychological examination and other pending motions. After the
hearing, on September 28, 2018, the magistrate issued a decision granting appellee's
motion for psychological evaluation in part ("the September 28th evaluation order"). The
court appointed Dr. David Lowenstein to conduct the evaluation and ordered that "[b]oth
the parties and the minor child shall be evaluated in a custodial evaluation which shall
include all measurements deemed necessary by Dr. Lowenstein including a psychological
evaluation of the parties and the minor child (if necessary)." (Sept. 28, 2018 Magistrate's
Order at 8.) Appellant then moved to set aside the September 28th evaluation order.
Appellant did not obtain a stay pending his motion to set aside. The domestic relations
court denied appellant's motion to set aside. Appellant appealed the denial of his motion
to set aside to this court; we dismissed the appeal for lack of a final, appealable order.
Tassone, 10th Dist. No. 18AP-912. Appellant did not obtain a stay of the September 28th
evaluation order pending his appeal to this court.
{¶ 5} On October 25, 2018, appellee moved for an order holding appellant in
contempt for failure to comply with the September 28th evaluation order. While the
1No transcript of the June 15, 2018 hearing was filed. Accordingly, we rely on the court's characterization of
the June 15, 2018 hearing as described in the September 28, 2018 magistrate's order.
No. 19AP-382 3
contempt proceedings were pending, Dr. Lowenstein testified at a hearing and indicated he
would not conduct any evaluation for the parties. As a result, on April 15, 2019, the
domestic relations court issued an order appointing Dr. Farshid Afsarifard to perform the
custodial evaluation of the parties and the minor child.
{¶ 6} The domestic relations court conducted a hearing on appellee's motion for
contempt. Appellee testified at the hearing; appellant refused to be placed under oath and
invoked his rights under the Fifth Amendment to the United States Constitution. On
May 16, 2019, the domestic relations court issued a judgment granting the motion for
contempt. The court noted that no stay of the September 28th evaluation order had been
issued during the pendency of appellant's motion to set aside or his appeal of the denial of
his motion to set aside. Based on testimony of appellee and testimony from Dr. Lowenstein
at an earlier hearing, the court found appellant failed to comply with the September 28th
evaluation order. The court sentenced appellant to seven days in jail but stayed the
sentence and provided that appellant could purge the contempt by fully complying with the
court's April 15, 2019 order appointing Dr. Afsarifard.
II. Assignments of Error
{¶ 7} Appellant appeals and assigns the following seven assignments of error for
our review:
[I.] The trial court's September 28th, 2018 Court Order was
obtained through extrinsic and collateral fraud; therefore, the
trial court abused its discretion and violated Mr. Tassone Due
Process Rights in enforcing said order.
[II.] The Court's September 28th, 2018 Order Ordering a
"custodial evaluation" is void and not subject to enforcement.
[III.] The Court's May 16th, 2018 Order Finding Mr. Tassone
in Contempt of Court is void.
[IV.] The trial court erred and abused its discretion in enforcing
the court's September 28th, 2018 void Court Order.
[V.] The trial court erred and violated Defendant's Due Process
Rights insomuch as the trial court refused to permit Mr.
Tassone to call Magistrate David Black as a witness to testify in
the contempt proceedings.
No. 19AP-382 4
[VI.] The court erred and abused its discretion in finding Mr.
Tassone in contempt as a means to force Mr. Tassone to
Comply with The September 28th, 2018 Order for which the
Contempt Proceedings were commenced because the
September 28th, 2018 order was rendered moot and voided by
the trial court prior to the court seeking to enforce said order in
contempt proceedings.
[VII.] The Court abused its discretion and did not provide
proper notice to Defendant regarding the contempt
proceedings because the Court had sought to enforce its new
Order appointing Dr. Asfarad [sic] as an evaluator, despite the
fact that the contempt proceedings were commenced, and the
notice given, was with respect to the trial court's September
28th, 2018 Order.
III. Analysis
{¶ 8} We begin by noting that the order finding appellant to be in contempt is a
final, appealable order. The Supreme Court of Ohio has held that "a court order finding a
party in contempt and imposing a sentence conditioned on the failure to purge is a final,
appealable order on the issue whether the party is in contempt of court." Docks Venture,
L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St. 3d 107, 2014-Ohio-4254, ¶ 23.
{¶ 9} Contempt of court is defined as disobedience of an order of a court.
Windham Bank v. Tomaszczyk, 27 Ohio St. 2d 55 (1971), paragraph one of the syllabus. It
is "conduct which brings the administration of justice into disrespect, or which tends to
embarrass, impede or obstruct a court in the performance of its functions." Id. "The
purpose of contempt proceedings is to secure the dignity of the courts and the
uninterrupted and unimpeded administration of justice." Id. at paragraph two of the
syllabus. A court has both inherent and statutory authority to punish contempt. Howell v.
Howell, 10th Dist. No. 04AP-436, 2005-Ohio-2798, ¶ 19, citing In re Contempt of Morris,
110 Ohio App. 3d 475, 479 (8th Dist.1996).
{¶ 10} Courts classify contempt as either direct or indirect, and as either criminal or
civil. See Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St. 2d 197, 202-03 (1973).
Contempt is classified as direct or indirect depending on where the contempt occurs. Direct
contempt occurs in the presence of the court in its judicial function. Byron v. Byron, 10th
Dist. No. 03AP-819, 2004-Ohio-2143, ¶ 12. Indirect contempt involves behavior outside
No. 19AP-382 5
the presence of the court that demonstrates lack of respect for the court or for the court's
orders. Id.
{¶ 11} "While both types of contempt contain an element of punishment, courts
distinguish criminal and civil contempt not on the basis of punishment, but rather, by the
character and purpose of the punishment." Brown v. Executive 200, Inc., 64 Ohio St. 2d
250, 253 (1980). " 'Civil as distinguished from criminal contempt is a sanction to enforce
compliance with an order of the court or to compensate for losses or damages sustained by
reason of noncompliance.' " Pugh v. Pugh, 15 Ohio St. 3d 136, 140 (1984), quoting McComb
v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). Criminal contempt sanctions are not
coercive in nature but act as "punishment for the completed act of disobedience, and to
vindicate the authority of the law and the court." Brown at 254.
{¶ 12} Although, "[i]n cases of criminal, indirect contempt, it must be shown that
the alleged contemnor intended to defy the court," in cases of "civil contempt" it is
"irrelevant that the transgressing party does not intend to violate the court order. If the
dictates of the judicial decree are not followed, a contempt citation will result." Midland
Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St. 3d 121 (1991), paragraph two of the
syllabus; Pedone v. Pedone, 11 Ohio App. 3d 164, 165 (8th Dist.1983). See also Windham
Bank at paragraph three of the syllabus. For civil contempt, the burden of proof is clear
and convincing evidence; for criminal contempt, the burden of proof is proof beyond a
reasonable doubt. Lopez v. Lopez, 10th Dist. No. 04AP-508, 2005-Ohio-1155, ¶ 56; Brown
at syllabus. It is well-settled that to find a litigant in contempt, the court must find the
existence of a valid court order, that the offending party had knowledge of such order, and
that such order was, in fact, violated. McCall v. Kranz, 10th Dist. No. 15AP-436, 2016-
Ohio-214, ¶ 9, citing Arthur Young & Co. v. Kelly, 68 Ohio App. 3d 287, 295 (10th
Dist.1990). Once the complainant has satisfied his or her initial burden of demonstrating
the other party violated a court order, the burden shifts to the other party to either rebut
the showing of contempt or demonstrate an affirmative defense by a preponderance of the
evidence. Ryan v. Ryan, 10th Dist. No. 14AP-28, 2014-Ohio-3049, ¶ 12.
{¶ 13} We review a trial court's finding of contempt, including the imposition of
penalties, for abuse of discretion. Byron at ¶ 15. An abuse of discretion occurs when a
No. 19AP-382 6
judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
A. Challenges to the September 28th evaluation order
{¶ 14} Appellant was found to be in contempt of court for failure to comply with the
September 28th evaluation order. His first, second, third, and fourth assignments of error
challenge the merits or validity of the September 28th evaluation order and we will address
those assignments of error together.
{¶ 15} Pursuant to R.C. 3109.04(C), in a divorce action involving allocation of
parental rights and responsibilities, a trial court may order parents and minor children to
submit to medical, psychological, and psychiatric examination. The trial court has
discretionary authority to order such an examination and an order requiring an
examination under the statute will not be reversed absent an abuse of discretion. See
Singer v. Singer, 9th Dist. No. 18CA0073-M, 2019-Ohio-5294, ¶ 27 (holding that ordering
an examination under R.C. 3109.04(C) is within the trial court's discretion and will not be
reversed absent an abuse of discretion); Masten v. Masten, 5th Dist. No. 16-CA-4, 2016-
Ohio-5738, ¶ 11 (holding that decision whether to order a psychological examination under
R.C. 3109.04(C) is within the discretion of trial court and will not be reversed absent an
abuse of discretion); Yazdani-Isfehani v. Yazdani-Isfehani, 170 Ohio App. 3d 1, 2006-Ohio-
7105, ¶ 37 (4th Dist.) ("[B]oth R.C. 3109.04(C) and Civ.R. 35(A) place the decision to order
an investigation clearly within the trial court's sound discretion.").
{¶ 16} Appellant argues the September 28th evaluation order was procured through
fraud and misrepresentation. Appellant claims that appellee's counsel and the magistrate
misrepresented the nature of the evaluation sought, thereby preventing appellant from
adequately preparing his defense against the motion. Appellant argues this constituted a
denial of due process.
{¶ 17} In the September 28th evaluation order, the magistrate noted the motion for
psychological evaluation as filed was unclear. The magistrate found certain portions of the
motion suggested appellee sought an evaluation under R.C. 3109.04, while other portions
suggested the evaluation was being sought under Civ.R. 35(A). The magistrate explained
the measures taken to clarify this uncertainty:
Prior to the hearing on [the motion for a psychological
evaluation], defendant correctly raised concerns about the
No. 19AP-382 7
nature of plaintiff's motion and what exactly plaintiff was
seeking: a psychological evaluation vs. a custodial evaluation.
At a prior hearing, the court agreed with defendant and
questioned plaintiff's counsel as to his intention regarding the
motion. The court and defendant were informed that plaintiff
was seeking a custodial evaluation and not a psychological
evaluation. The court then informed both parties that it would
only hear testimony pertaining to a custodial evaluation and
that plaintiff was barred from later attempting to request or
present evidence concerning a psychological evaluation of
defendant.
(Footnote omitted; Sept. 28, 2018 Magistrate's Order at 2.)
{¶ 18} The magistrate further noted appellant admitted to having a conversation
with the guardian ad litem in the case, who had also sought clarification from appellee's
counsel. The guardian ad litem informed appellant that her conversation with appellee's
counsel was consistent with the discussion the magistrate held with the parties. Given these
circumstances, the magistrate concluded appellant had adequate notice of the matters to
be considered at the July 17, 2018 hearing.
{¶ 19} Appellant's primary objection to the September 28th evaluation order
appears to arise from a fundamental misunderstanding of the distinction between an
examination pursuant to Civ.R. 35(A) and an examination pursuant to R.C. 3109.04(C).
Appellant insists "the court has fraudulently misrepresented the [September 28th
evaluation] order as something other than a Rule 35(A) psychological evaluation."
(Appellant's Brief at 30.) Appellant appears to suggest that a psychological examination
could only be ordered pursuant to Civ.R. 35(A).
{¶ 20} Civ.R. 35(A) provides that when the mental or physical condition of a party is
in controversy, a court may order the party to submit to a mental or physical examination,
upon a motion showing good cause for the examination. The staff notes to Civ.R. 35
indicate that the rule applies to all civil actions. R.C. 3109.04(C), which applies in divorce,
legal separation, annulment, or other proceedings relating to the allocation of parental
rights and responsibilities for care of a child, provides that "[p]rior to trial, the court may
cause an investigation to be made as to the character, family relations, past conduct,
earning ability, and financial worth of each parent and may order the parents and their
minor children to submit to medical, psychological, and psychiatric examinations." Unlike
No. 19AP-382 8
Civ.R. 35(A), R.C. 3109.04(C) does not require that good cause be shown for a mental
examination. Harness v. Harness, 143 Ohio App. 3d 669, 675 (4th Dist.2001). Notably,
both Civ.R. 35(A) and R.C. 3109.04(C) permit a mental or psychological examination of an
individual. Thus, appellant's apparent suggestion that a psychological examination may
only be ordered under Civ.R. 35(A) is incorrect.
{¶ 21} The record in this appeal is incomplete and prevents us from fully reviewing
appellant's assertions. Appellant has not filed a transcript of the June 15, 2018 hearing
where the magistrate requested clarification of appellee's motion for psychological
examination. Additionally, appellant filed only a partial transcript of the July 17, 2018
hearing on the motion for psychological examination, and the brief excerpt contained in
that partial transcript involved appellant's cross-examination of appellee related to claims
she had concerns about the welfare of the minor child when in appellant's care. Absent
other evidence, we are left with the magistrate's description of the proceedings as contained
in the September 28th evaluation order. As explained above, that description indicates the
magistrate sought and obtained clarification of the nature of the relief sought under
appellee's motion or psychological examination prior to the hearing on that motion. Thus,
appellant has failed to demonstrate that the September 28th evaluation order was
fraudulently obtained. Based on the incomplete record before us, we cannot conclude the
magistrate erred by finding appellant had adequate notice regarding the nature of the
examination requested. Further, we cannot conclude the magistrate abused his discretion
by ordering appellant to submit to a psychological evaluation pursuant to R.C. 3109.04(C).
{¶ 22} Because we conclude the domestic relations court did not abuse its discretion
by ordering appellant to submit to a psychological evaluation pursuant to R.C. 3109.04(C),
we overrule appellant's first, second, third, and fourth assignments of error.
B. Challenge to order quashing subpoena
{¶ 23} Appellant argues in his fifth assignment of error he was denied the right to
present evidence in his defense, question witnesses, and call witnesses. Specifically,
appellant argues he sought to call the domestic relations court magistrate as a witness and
that the domestic relations court denied his right to due process by denying his request to
call the magistrate as a witness.
No. 19AP-382 9
{¶ 24} Appellant requested a subpoena be issued to the domestic relations court
magistrate compelling him to testify at a hearing. In an attachment to the subpoena,
appellant alleged the magistrate engaged in ex parte communications with Dr. Lowenstein
and secretly made changes to the September 28th evaluation order. The magistrate moved
to quash the subpoena, arguing it imposed an undue burden because he served as trier of
fact on multiple motions in the case. The magistrate asserted that because the court spoke
only through its journal, he could not testify as to the meaning or intent of any decisions on
those motions. Further, the magistrate argued that to the extent appellant sought to
discover the content of any discussion he had with Dr. Lowenstein regarding the custodial
evaluation, Dr. Lowenstein could testify to those matters. The domestic relations court
granted the motion to quash. We review an order granting or denying a motion to quash
for abuse of discretion. Cunningham v. Ohio Dept. of Transp., 10th Dist. No. 08AP-330,
2008-Ohio-6911, ¶ 13.
{¶ 25} Under Civ.R. 45(C)(3)(d), on timely motion a court shall quash or modify a
subpoena if it subjects a person to undue burden. The movant bears the initial burden of
establishing an undue burden. Future Communications, Inc. v. Hightower, 10th Dist. No.
01AP-1175, 2002-Ohio-2245, ¶ 17. When a motion to quash is made under Civ.R.
45(C)(3)(d) and establishes an undue burden, "the court shall quash or modify the
subpoena unless the party in whose behalf the subpoena is issued shows a substantial need
for the testimony or material that cannot be otherwise met without undue hardship and
assures that the person to whom the subpoena is addressed will be reasonably
compensated." Civ.R. 45(C)(5). In the present case, the magistrate demonstrated that
complying with the subpoena would impose an undue burden because it would require him
to testify as a fact witness before his own court on matters over which he had presided.
Compelling the magistrate to testify about the meaning of his orders would violate the
principle that a court speaks through its journal entries. Other appellate courts have upheld
motions to quash subpoenas of judges in similar circumstances. See, e.g., State v. Galluzzo,
2d Dist. No. 2004 CA 25, 2006-Ohio-309, ¶ 49-58 (affirming decision quashing subpoena
of trial judge because the judge had no material information to provide and there were other
sources for the information sought); Hirschberger v. Silverman, 80 Ohio App. 3d 532, 540-
41 (6th Dist.1992) (affirming decision quashing subpoenas and holding that "since a court
No. 19AP-382 10
speaks only through its journal, a judge cannot testify as to the meaning or intent of his
decision in a case or explain aspects of the decision further"). Under these circumstances,
we cannot conclude the domestic relations court abused its discretion by granting the
magistrate's motion to quash the subpoena.
{¶ 26} Accordingly, we overrule appellant's fifth assignment of error.
C. Challenges to contempt order
{¶ 27} Appellant argues in his sixth assignment of error the domestic relations court
abused its discretion by finding him in contempt because the September 28th evaluation
order was rendered moot by the April 15, 2019 order appointing Dr. Afsarifard to conduct
the custodial evaluation. Appellant claims that because Dr. Lowenstein was no longer
authorized to perform the evaluation, he could not be held in contempt for failure to comply
with an order requiring him to submit to an examination by Dr. Lowenstein.
{¶ 28} As explained above, civil contempt is a sanction to enforce compliance with
an order of the court and is intended to secure the dignity of the courts and the unimpeded
administration of justice. In the present case, appellant did not obtain a stay of the
September 28th evaluation order pending his motion to set aside that order or his appeal
of the denial of the motion to set aside to this court. Therefore, the order remained in effect
and appellant was required to comply with it. Although the court ultimately appointed a
different evaluator, that does not eliminate appellant's failure to comply with the
September 28th evaluation order during the preceding months. A finding of contempt was
warranted in this case because there was a valid court order, appellant had knowledge of
the order, and appellant violated the order. See McCall at ¶ 9. Under these circumstances,
the trial court did not abuse its discretion by finding appellant to be in contempt.
{¶ 29} Accordingly, we overrule appellant's sixth assignment of error.
{¶ 30} Appellant argues in his seventh assignment of error that he was not given
adequate notice of the contempt proceedings because the domestic relations court sought
to use the contempt proceeding to enforce the April 15, 2019 order appointing Dr.
Afsarifard to conduct the custodial evaluation. The record indicates appellant was served
with a copy of appellee's motion for contempt, which expressly sought a finding of contempt
based on appellant's failure to comply with the September 28th evaluation order. The
domestic relations court found appellant to be in contempt on that basis—i.e., because he
No. 19AP-382 11
failed to comply with the September 28th evaluation order. The fact that the domestic
relations court provided appellant an opportunity to purge the contempt by complying with
the April 15, 2019 order appointing Dr. Afsarifard to conduct the custodial evaluation does
not establish that appellant lacked proper notice of the contempt proceedings.
{¶ 31} Accordingly, we overrule appellant's seventh assignment of error.
IV. Conclusion
{¶ 32} For the foregoing reasons, we overrule appellant's seven assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations.
Judgment affirmed.
SADLER, P.J., and DORRIAN, J., concur.
NELSON, J., concurs.
NELSON, J., concurring.
{¶ 33} I concur in the judgment of the court overruling Mr. Tassone's assignments
of error and affirming the May 16, 2019 judgment of the domestic relations court that found
Mr. Tassone in civil contempt of court. And I agree, of course, that the central point of a
civil contempt order is to promote compliance with a court order. I write separately simply
to observe that "the opportunity to purge the contempt by complying with the April 15, 2019
order appointing Dr. Afsarifard to conduct the custodial evaluation," see ¶ 30 above, was
conditioned on an event that (at least until the issuance of this current decision) had not
occurred. It seems to me that the domestic relations court when it turns to considering
whether contempt has been purged should take this circumstance into account.
{¶ 34} Mr. Tassone could purge himself of the contempt, the domestic relations
court said, "by fully complying with" its April 19, 2019 order. May 16, 2019 Decision and
Judgment Entry. But the April 19, 2019 order gave Mr. Tassone only one, contingent
direction: "if the Decision of November 13, 2018 [as then pending on appeal] is
upheld by the Court of Appeals," it recited (with bolded emphasis), then it is ordered
that "[b]oth parties are instructed to contact Dr. Farshid Afsarifard * * * no later than * * *
seven (7) days after the Court of Appeals releases its Decision in 18 AP 912 to schedule their
initial appointments. Both parties and the minor child shall be evaluated in a custodial
evaluation which shall include all measurements deemed necessary by Dr. Farshid
No. 19AP-382 12
Afarsifard including a psychological evaluation of the parties and minor child (if necessary).
The parties shall equally divide the * * * costs of the custodial evaluation." April 15, 2019
Decision and Judgment Entry.
{¶ 35} The domestic relations court's November 13, 2018 order was not "upheld" by
this court, at least until perhaps arguably now, because the appeal of that order was
dismissed for want of jurisdiction in light of the lack of a final appealable order. See ¶ 4
above. Without jurisdiction, we could not "reach the merits" in the earlier appeal. Tassone
v. Tassone, 10th Dist. No. 18AP-810, 2019-Ohio-1018, ¶ 18; see also, e.g., Ohio ex rel.
DeWine v. Precourt Sports Ventures LLC, 10th Dist. No. 18AP-342, 2018-Ohio-2414, ¶ 10
("We do not reach the merits of the trial court's order because we find that the trial court
has yet to render a final appealable order in this case and we must dismiss the appeal for
lack of jurisdiction").
{¶ 36} The domestic relations court has not yet been in a position to conduct the
purge hearing contemplated by its May 16, 2019 order. It may want to apprise Mr. Tassone
of its current reading on his timeframe for purging the contempt in light of our ruling today.