Redmond v. Redmond United States Court of Appeals 7th circuit

7/27/2019 Redmond v. Redmond United States Court of Appeals 7th circuit

1/15

1

No. 12-2511

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

DEREK REDMOND, Appeal from the United States

Petitioner - Appellee District court for the Northern

District of Illinois

Eastern Division

v. No. 11-CV-08542

MARY REDMOND, Charles R. Norgle,

Respondent - Appellant Judge

PETITIONER-APPELLEES PETITION FOR REHEARING

David N. Schaffer

Schaffer Family Law Ltd.Attorney for Petitioner-Appellee

200 East 5th

Avenue, Suite 108

Naperville IL 60563(630) 922-4500

Ilia Usharovich

Attorney for Petitioner-Appellee224 S. Milwaukee Avenue Suite G

Wheeling Illinois 60090

(847) 264-0435

Case: 12-2511 Document: 63 Filed: 08/23/2013 Pages: 15


2/15

2

CIRCUIT RU LE 26.1 DISCLOSURE STA TEME NT

AppellateCourtNo: 12-2511

ShortCaption: Redmond v Redmond

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmeparty or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statemproviding the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

Attorneys are required to file an amended statement to reflect any material changes in the required information. The of the statement must also be included in front of the table of contents of the party's main brief. Counsel is requi

to complete the entire statementand to use N/A for any information that is not applicable if this form is used.

[X]PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATEWHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provthe corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

Derek Redmond

(2) The names of all law firms whose partners or associates have appeared for the party in the case (includingproceedings in the district court or before an administrative agency) or are expected to appear for the party in thicourt:

Schaffer Family Law Ltd.

New: Ilia Usharovich, Attorney at Law

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and

N/A

ii) list any publicly held company that owns 10% or more of the partys or amicus stock:

N/A

Attorney's Signature: /s/ David N. Schaffer Date: August 22, 2013

Attorney's Printed Name: David N. Schaffer

Please indicate if you are Counsel ofRecord for the above listed parties pursuant to Circuit Rule 3(d). Yes x No

Address: Schaffer Family Law Ltd., 300 East 5th Avenue, Naperville IL 60563-3317

Phone Number: 1 (630) 922-4500 Fax Number: 1 (630) 922-4507

E-Mail Address: [email protected]



3/15


4/15

4

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES CITED

CASES

Aboud v. Mauas, 216 F. App'x 133 (2d Cir. 2007) ....................................................................................... 9

Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010)................................................................................... 2,6

Cartwright v. Cooney, 788 F. Supp. 2d 744 (N.D. Ill. 2011). ................................................................... 8

Homola v. McNamara, 59 F.3d 647 (7th Cir.1995). ................................................................................. 13

In re Prevot, 59 F.3d 556 (6th Cir. 1995). .............................................................................................. 12,13

Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) ......................................................................... 5torentoren7

Outagamie Cnty. v. Wisconsin Dep't of Health Servs., 13-C-234, 2013 WL 2436500 (E.D. Wis.June 4, 2013). ...................................................................................................................................................... 8

Pampered Chef v. Alexanian, 804 F. Supp. 2d 765 (N.D. Ill. 2011). ................................................... 10

Packers Trading Co. v. CFTC, 972 F.2d 144 (7th Cir.1992). ................................................................ 10

Pesin v. Rodriguez, 244 F.3d 1250, 1252 (11th Cir. 2001). .................................................................... 12

Redmond v. Redmond2013 WL 3821595 (7th Cir. July 25, 2013) ........................................ 5,6,7,8,13

Scheiber v. Dolby Labs., Inc., 293 F.3d 1014 (7th Cir.2002). ................................................................ 10

Toren v. Toren, 191 F.3d 23 (1st Cir. 1999) ............................................................................................... 8,9

Universal Trading & Inv. Co. v. Kiritchenko, C-99-3073 MMC, 2007 WL 2669841 (N.D. Cal.Sept. 7, 2007) aff'd sub nom.Universal Trading & Inv. Co., Inc. v. Kiritchenko, 346 F. App'x

232 (9th Cir. 2009) ......................................................................................................................................... 12

White v. White, 718 F.3d 300 (4th Cir. 2013) ............................................................................................. 7

Young v. Verizon's Bell Atl. Cash Balance Plan, 667 F. Supp. 2d 850 (N.D. Ill. 2009) aff'd, 615

F.3d 808 (7th Cir. 2010).......................................................................................................................... 10,11

STATUTES

International Child Abduction Remedies Act (ICARA)42 USC 11601 et seq .......... ...... 5,8,12,13

USCS Child Abduction (Hague) ........................................................................................................ 6,8,12,13



5/15

5

ARGUMENT

I. The opinion overlooked or misapprehended a point of law or fact in its finding thatJMRs habitual residence was the United States.

JMRs habitual residence was fixed by order and judgment of the Irish Court on February 10,

2011. On February 10, 2011***. The court ordered that JMR live in Ireland, in or near

Ballymurphy, Carlow County, and attend the Ballymurphy National School.Redmond v.

Redmond, 2013 WL 3821595 at 4. (7th Cir. July 25, 2013). Accordingly, it was unnecessary for

this Court to attempt to determine JMRs habitual residence based on the jurisprudence of our

federal courts because the in personam order of the Irish Court already fixed the habitual

residence of the child and determined custody. Neither parent, although Mary tried

unsuccessfully in state court, nor any foreign court, had the ability to change the Irish Courts

order or change the childs habitual residence because of the Irish Courts order fixing the

residence. This order made the child not only the child of the parties, but also a charge of the

Irish Court. This order should have been given priority as a matter of law. SeeLops v. Lops, 140

F.3d 927, 933 (11th Cir. 1998) (German court's orders and final judgment granting wife divorce

and permanent custody of minor children were entitled to priority in wife's district court action

under International Child Abduction Remedies Act (ICARA)1, as to habitual residence of

children and custody issues at time that children were removed from Germany by husband and

his mother, notwithstanding husband's maintenance of divorce action in South Carolina.).

Accordingly, JMR was wrongfully retained from his habitual residence in Ireland at least one

month after the Irish Courts in personam joint custody award.

1 International Child Abduction Remedies Act, 42 U.S.C.A. 11601 et seq.



6/15

6

II. The opinion overlooked or misapprehended a point of law or fact in its solution to the

question and its finding that the factual circumstances of this cause present the question of

whether, a change in one parent's custody rights is enough to make the other's parent'scontinued physical custody of the child a putative wrongful retention under the Convention?

Stated differently, does the parent with physical custody of a child commit a wrongful

retentioncolloquially, an abductionby reneging on a promise, made under oath, to obey anewly entered custody order in favor of the other parent?Redmond v. Redmond, 2013 WL3821595 at 9.

This Court first cites toBarzilay2

as support for the answer to the question posed. Derek

believes the opinions application ofBarzilay, to this factual pattern was in error for numerous

reasons. In the case at bar, both parties were subject to an in personam judgment with regard to

JMRs custody and parental rights before the Irish Court. This was the only judgment in

existence granting either party any rights. UnlikeBarzilay, wherein

***a Missouri state court dissolved Sagi and Tamar's marriage. The divorce decree

awarded them joint physical and legal custody of the children and incorporated a writtenparenting plan. The parenting plan specified that Tamar would have primary parental

responsibility and physical custody of the children. It also included the following

provision (referred to below as the repatriation agreement): In the event either partyleaves Missouri to return to the State of Israel, and regardless of whether such move is

voluntary or involuntary on her or his part, the other party shall forthwith take such steps

to move back to Israel so that Husband and Wife and the children shall reside within the

same country. Id. at 915.

UnlikeBarzilay, Petitioner and Respondent were not married, did not have any prior

adjudications regarding custodial rights, and both fully litigated their rights before the Irish

Court. InBarzilay, the rights were established in one court, the party litigated in another foreign

tribunal to obtain different rights, and then used the Convention3

to enforce those new rights.

Here, the Convention is being used to return the child to his habitual place of residence after

being wrongfully retained from Ireland. Neither party had the ability to set the childs habitual

residence because both parties were awarded equal custody and the court decided that the child

2Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010)

3USCS Child Abduction (Hague)



7/15

7

would reside in Ireland, thereby fixing his habitual residence. Accordingly, this factual basis in

this case is more akin toLops v. Lops, 140 F.3d 927 as opposed toBarzilay.

The opinion also cited to White4in support its decision,

Although the Fourth Circuit did not separately address the issue ofretention, the courtdid note that [State] signatories [to the Convention] agree that orders claiming to adjust

custody arrangements after removal or retention do not typically affect rights under

Article 3 of the Convention.Redmond v. Redmond, 2013 WL 3821595 at 10.

Unlike White,Marys wrongful retention occurred after the Irish Curt had fixed JMRs

residence and given them joint custody, in Ireland, and at the same time denying Marys petition

to permanently remove JMR from Ireland. In White the initial removal occurred prior to any

custodial rights being awarded. In the case at bar, the retention occurred less than one month

after the custodial rights were given. Again, the factual basis of this case is more akin toLops v.

Lops, 140 F.3d 927, than White.

III. Assuming the Court finds that the habitual residence of JMR is the United States, then the

Court has also overlooked or misapprehended a point of law or fact in reversing and remanding

the judgment of the district court. Rather the cause of action should have been vacated and

dismissed for want of jurisdiction.

It is not clear whether this Court decided that there was a removal or retention. However, the

opinion held that,

Because JMR was habitually resident in Illinois, Respondent-Appellant did notwrongfully retain him in the United States. The district court should not have ordered the

child returned to Ireland.Redmond v. Redmond, 2013 WL 3821595 at 17.

In other words, this Court ruled that the district court lacked the authority. i.e., jurisdiction,

to order JMR returned because there was no taking from a habitual residence, which is required

for subject matter jurisdiction.

4White v. White, 718 F.3d 300, 302 (4th Cir. 2013)



8/15

8

Since the opinion found that there was no removal or retention, or at least no wrongful

removal or wrongful retention, the Convention, through ICARA, cannot be invoked as a matter

of law since the necessary elements are nowper se lacking. The Convention may be invoked

only where the child was habitually resident in a Contracting State and taken to or retained in

another Contracting State. ***Redmond v. Redmond, 2013 WL 3821595 at 8.

Federal courts are courts of limited jurisdiction and they have only the power that is

authorized by Article III of the Constitution and the statutes enacted by Congress pursuant

thereto. Cartwright v. Cooney, 788 F. Supp. 2d 744, 749-50 (N.D. Ill. 2011). ***limitations of

subject-matter jurisdiction cannot be waived.*** Outagamie Cnty. v. Wisconsin Dep't of Health

Servs., 13-C-234, 2013 WL 2436500 (E.D. Wis. June 4, 2013). Accordingly, as the opinion

found that the circuit court did not have subject matter jurisdiction, Marys appeal and Dereks

Convention action should be dismissed.

In Toren v. Toren, 191 F.3d 23 (1st Cir. 1999) it was held that,

Neither the Hague Convention nor ICARA defines the terms retention orremoval.

However, the language and structure of Article 3 of the Hague Convention clearlyindicate that there must be an initial determination as to whether there has been a removal

or retention before any inquiry can be made into whether such removal or retention was

wrongful. We conclude that the father has failed to allege facts sufficient to set forth aclaim that the Toren children have been removed or retained within the meaning of the

Hague Convention. Absent such a showing, the district court should not have exercised

jurisdiction over the father's claim. Id at 27.

In Toren , the district court rejected the father's request for the immediate return of the

children, basing its decision on two grounds. First, the district court found that the children were

habitual residents of the United States-and not Israel-at the time of any allegedly wrongful

retention by the mother. The court then concluded that because the mother was not retaining the

children away from their habitual residence, there was no wrongful retention within the



9/15

9

meaning of Article 3, ***, and thus the protections of the Hague Convention could not be

invoked. Id.

Here the facts alleged by Derek and the findings of fact by this Court lead to the conclusion

that Derek could not have stated sufficient facts to state a claim for retention or removal, let

alone wrongful retention or removal from the state of the Childs habitual residence because of

this Courts finding that the United States was the JMRs habitual residence at the time Mary

broke her sworn promises to the Irish Court, promises to said court to dupe it into allowing her to

temporarily take JMR to the United States. Accordingly, the district court did not have

jurisdiction and the judgment should have been vacated and dismissed for such lack of

jurisdiction, as was done in Toren, rather than reversing and remanding.

In the absence of actual removal from the State of habitual residence to another contracting

State the court lacks jurisdiction to hear the matter. See Aboud v. Mauas, 216 F. App'x 133, 135

(2d Cir. 2007) (In the absence of any custodial rights that could have been violated by Jaia's

removal, the district court lacked jurisdiction to grant his petition, as the district court concluded.

The Hague Convention provides Aboud with several remedies for the alleged violation of his

access rights, but return of Jaia to Argentina is not one of them. [Citations omitted] )

Accordingly, by its own ruling, this Court concluded that the district court did not have

jurisdiction to invoke the powers of the Convention. The court did not have subject matter

jurisdiction based on this Courts finding that the habitual residence of the child was in the

United States. Thus,there is no equitable power because there is no subject-matter jurisdiction.5

Based upon this Courtsjudgment, the district courts orderwas void from its inception. As such,

the only remedy is to vacate and dismiss the cause of action .

5*** a court's exercise of equitable authority depends in the first instance on the existence of subject matter

jurisdiction. CareToLive v. von Eschenbach, 525 F. Supp. 2d 938, 951 (S.D. Ohio 2007) aff'd sub nom. CareToLive

v. Eschenbach, 290 F. App'x 887 (6th Cir. 2008).



10/15

10

IV. The opinion overlooked ormisapprehended the unclean hands doctrine and the

equitable powers of the District court on remand.

Assuming, arguendo, this Court finds that subject matter jurisdiction and, as follows, its

equitable powers still apply, the Court has also overlooked or misapprehended a point of law or

fact in that they failed to consider the full scope of the equitable powers applicability in this

matter. Specifically,

The unclean hands doctrine closes the door of a court of equity to one tainted with

inequitableness or bad faith relative to the matter in which he seeks relief, howeverimproper may have been the behavior of the defendantPampered Chef v. Alexanian,

804 F. Supp. 2d 765, 801 (N.D. Ill. 2011).

The unclean hands doctrine allows a court to deny equitable relief to a party who has

engaged in unlawful or inequitable conduct in connection with the matter from which he or she

seeks relief. Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1021 (7th Cir.2002). In other

words, it affords the court the power to refuse equitable relief if granting such relief would

produce an illegal or unjust result.Packers Trading Co. v. CFTC, 972 F.2d 144, 148-49 (7th

Cir.1992). Wrongful conduct includes any acts which are inequitable, unfair, dishonest,

fraudulent, unconscionable, or in bad faith. [Citations Omitted]. Young v. Verizon's Bell Atl.

Cash Balance Plan, 667 F. Supp. 2d 850, 905 (N.D. Ill. 2009) aff'd, 615 F.3d 808 (7th Cir.

2010).

The second after the Irish Court awarded the parties joint custody and denied her petition for

leave to permanently remove JMR to Illinois, Mary committed wrongful conduct that was

inequitable, unfair, dishonest, fraudulent, unconscionable, and in bad faith. Specifically Mary:

a. Promised a tribunal under oath that she would return with the child and did not;b. Promised a tribunal under oath not to apply to another court outside of Ireland

regarding JMR's custody, yet she did;



11/15

11

c. Promised to quit her job and move back with JMR, and did not;d. Perpetrated a fraud on the court; ande. Admitted to her deceit, under oath, in the underlying district court proceedings;

A plaintiff who acts unfairly, deceitfully, or in bad faith may not through equity seek to

gain from that transgression Young v. Verizon's Bell Atl. Cash Balance Plan, 667 F. Supp. 2d

850, 905 (N.D. Ill. 2009) aff'd, 615 F.3d 808 (7th Cir. 2010). Accordingly, Mary cannot,

through equity, seek to gain from her transgressions, that to which she was not entitled to in the

first place. Mary voluntarily appeared and vigorously litigated initial child custody and removal

proceedings in Ireland. The Court found against her position and declared that each party shall

have equal custody and that the child shall reside in Ireland and go to school in Ireland. Mary

then lied to the court to obtain the release of the child from Ireland and to defy the court order

and attempt to litigate new rights in America. The district court properly denied any opportunity

for her fraudulent scheme to come to fruition by ordering the child returned to Ireland. The

opinion aids and abets her fraud on the Irish Court and justifies refuge to fugitives and

contemptuous conduct. As a matter of policy, the opinion allows for individuals to disregard the

orders of courts that they promise to abide by, lie to courts, remove children subject to valid

court orders of foreign tribunals, and then allows them to find refuge and aid before this Court.

Endorsing and aiding in this kind of conduct is not commensurate with the purpose of the

Convention, nor with our fundamental sense of justice and ordered liberty, nor with the spirit of

the law requiring respect for the tribunals of other sovereign nations, who are parties to this

treaty.

In other words, JMR was stolen from his father, who had equal rights to the child, by his

mother, after she lied under oath to a tribunal, deceived the tribunal, and fled with the child to



12/15

12

America. Equity doesnt demand the return of the child to America, but rather it demands that

this Court affirm the district court on other grounds. This is true because if the Irish court did not

allow itself to be swindled by Mary fraud in the first place, Derek would have had no need to file

his petition herein, or register the Irish decree in Illinois. Instead the child was taken from

Ireland, by fraud, perjury and deceit6, and the burden shifted to Derek to litigate JMRs return.

No court should allow Mary, who acted unfairly, deceitfully, and in bad faith, through equity,

gain from that transgression, nor should any court provide her any safe harbor from her conduct

as a matter of law.

Neither the Convention nor ICARA purports to strip American courts of its inherent powers,

which include the power to disentitle fugitive from access to court. For Support SeeIn re

Prevot, 59 F.3d 556 (6th Cir. 1995).

The power of an American court to disentitle a fugitive from access to its power and

authority is an equitable one.[Citations Omitted].In re Prevot, 59 F.3d 556, 562. It is well-

settled law that an appellate court may dismiss the appeal of a party who is a fugitive from

justice during the pendency of her appeal.Pesin v. Rodriguez, 244 F.3d 1250, 1252 (11th Cir.

2001. Disentitlement of access to the appellate court applies to appeals in civil cases as well as

to criminal appeals.In re Prevot, 59 F.3d 556, 563. For a Potentially Negative Opinion see

Universal Trading & Inv. Co. v. Kiritchenko, C-99-3073 MMC, 2007 WL 2669841 (N.D. Cal.

Sept. 7, 2007) aff'd sub nom.Universal Trading & Inv. Co., Inc. v. Kiritchenko, 346 F. App'x

232 (9th Cir. 2009).

Respondent-Appellants flight and her appeal were related components of a general scheme.

She fled to escape her denial of sole custody and leave to remove by the Irish Court, the fixing of

6 Respondent-Appellant even confirmed, in her testimony in the district court that she intentionally lied to the

Irish Court.



13/15

13

the JMRs residence in Ireland, and other responsibilities to court, officers of the Court, and to

assemble and hold her family in a refuge beyond the reach of Irish Courts and Irish

responsibilities. In her hands ICARA and the appeal process is a tool used to permit her to escape

Irish justice and responsibilities while holding her child with her. Flight was but one step, and

this appeal the latest link, in a chain of proximately related events that began with the Irish

Courts findings against her and ended in the district court and appellate proceedings in this case.

Appellant has flouted the interests of the Irish courts in enforcing their judgment. Appellant has

walked away from her agreementmade to the court to obtain leave with the child and bring the

child back. She has spurned her obligation to the Irish government and the Irish Court. She has

misused the processes of the Irish Court and this Court. She has inhibited the processes of the

Irish Court.

Mary has abused the laudable purposes of ICARA by employing it on appeal to further her

scheme and deception. Her being a fugitive, and her actions, constitute abuses to which any court

should not accede. SeeIn re Prevot, 59 F.3d 556, 567. How could this Court allow this child to

be raised by a fugitive? As was Judge Easterbrooksdubitante portion of the opinion so clearly

stated:

Mary Redmond not only is bound by the Irish judgment awarding custody to Derek but

also promised to obey that judgment. Her promise was essential to obtaining permissionto travel with JMR to Illinois, purportedly to tidy up a few personal matters in preparation

for a long-term stay in Ireland. Mary broke her promise and defied the Irish judgment.

Ireland considers her a fugitive from justice (her contempt of court is obvious), which

also makes it impossible to see how she can realistically hope to obtain lawful custody ofJMR in Illinois. It is not simply that she violated both a valid judicial order and her own

undertaking; it is that she has revealed that she will violate any order in Derek's favor. No

legal system can accept that heads I win, tails you lose approach. SeeHomola v.

McNamara, 59 F.3d 647 (7th Cir.1995). Mary has disqualified herself as a candidate forfavorable treatment by the judiciary of any state or nation.Redmond v. Redmond, 2013

WL 3821595 at 18.



14/15

14

Accordingly, this Court should follow the ultimate rule of justice, do that to which they

would want done unto themselves, not allow a contemptuous fugitive with unclean hands refuge

in its courtroom, and vacate and dismiss these proceedings.

CONCLUSION

For the above reasons, this Court should dismiss these proceedings for lack of subject matter

jurisdiction, affirm the District courts judgment on other grounds, orin the alternative, grant

rehearing.

Respectfully submitted,

Petitioner-Appellee

By: His Attorneys

/ss/ David N. Schaffer

David N. Schaffer


Attorney for Petitioner-Appellee200 East 5th Avenue, Suite 108

Naperville IL 60563

(630) 922-4500

/ss/ Ilia Usharovich

Ilia Usharovich, Attorney at Law

Attorney for Petitioner-Appellee

224 S. Milwaukee Avenue Suite GWheeling Illinois 60090

(847) 264-0435



15/15

15

CERTIFICATE OF SERVICE

I hereby certify that on August 23nd

, 2013 I electronically filed the foregoing with the Clerk ofthe Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF

system. I certify that all participants in the case are registered CM/ECF users and that service

will be accomplished by the CM/ECF system.

/ss/David N. SchafferDavid N. SchafferSchaffer Family Law Ltd.


200 East 5th

Avenue, Suite 108Naperville IL 60563

(630) 922-4500

David N. Schaffer


Attorney for Petitioner-Appellee200 East 5

thAvenue, Suite 108

Naperville IL 60563

(630) 922-4500

Ilia Usharovich


224 S. Milwaukee Avenue Suite GWheeling Illinois 60090

(847) 264-0435


Documents

Redmond v. Redmond United States Court of Appeals 7th circuit