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No. 12-2511 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DEREK REDMOND, Petitioner - Appellee

Appeal from the United States District court for the Northern District of Illinois Eastern Division No. 11-CV-08542 Charles R. Norgle, Judge

v. MARY REDMOND, Respondent - Appellant

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-Appellee 224 S. Milwaukee Avenue Suite G Wheeling Illinois 60090 (847) 264-0435

CIRCUIT R UL E 26.1

DISCLOSURE STATEMEN T

12-2511 Appellate Court No: Case: 12-2511


Short Caption: Redmond v Redmond

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To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing 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 text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and 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 INDICATE WHICH 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 provide the 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 (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
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 Attorney's Printed Name: David N. Schaffer

Date: August 22, 2013

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes x Address: Schaffer Family Law Ltd., 300 East 5th Avenue, Naperville IL 60563-3317

No

Phone Number: 1 (630) 922-4500 E-Mail Address: schaffer@familylawltd.com

Fax Number: 1 (630) 922-4507

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TABLE OF CONTENTS TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES CITED ................................. 4 ARGUMENT5 I. The opinion overlooked or misapprehended a point of law or fact in its finding that JMRs habitual residence was the United States. ....................................................................................... 5 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's continued 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 a newly entered custody order in favor of the other parent? Redmond v. Redmond 2013 WL 3821595 at 9. ................................................................................................................................... 6 III. Assuming the Court finds that the habitual residence of JMR is the United State, 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. .................................................................................................. 7 IV. The opinion overlooked or misapprehended the unclean hands doctrine and the equitable powers of the district court on remand. ........................................................................................ 10 CONCLUSION ............................................................................................................................. 14 CERTIFICATE OF SERVICE ..................................................................................................... 15

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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. Redmond 2013 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

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ARGUMENT I. The opinion overlooked or misapprehended a point of law or fact in its finding that JMRs 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. See Lops 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.

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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's continued 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 a newly entered custody order in favor of the other parent? Redmond v. Redmond, 2013 WL 3821595 at 9. This Court first cites to Barzilay2 as support for the answer to the question posed. Derek believes the opinions application of Barzilay, 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. Unlike Barzilay, 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 written parenting 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 party leaves 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. Unlike Barzilay, 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. In Barzilay, 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
2

Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) USCS Child Abduction (Hague) 6

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would reside in Ireland, thereby fixing his habitual residence. Accordingly, this factual basis in this case is more akin to Lops v. Lops, 140 F.3d 927 as opposed to Barzilay. The opinion also cited to White4 in support its decision, Although the Fourth Circuit did not separately address the issue of retention, the court did 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 to Lops 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 not wrongfully 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.
4

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

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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 now per 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 or removal. However, the language and structure of Article 3 of the Hague Convention clearly indicate 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 a claim 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

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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 Courts judgment, the district courts order was 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).

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IV. The opinion overlooked or misapprehended 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, however improper may have been the behavior of the defendant Pampered 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;

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c. Promised to quit her job and move back with JMR, and did not; d. Perpetrated a fraud on the court; and e. 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

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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 See In 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 wellsettled 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

Respondent-Appellant even confirmed, in her testimony in the district court that she intentionally lied to the Irish Court.
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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. See In re Prevot, 59 F.3d 556, 567. How could this Court allow this child to be raised by a fugitive? As was Judge Easterbrooks dubitante 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 permission to 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 of JMR 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. See Homola v. McNamara, 59 F.3d 647 (7th Cir.1995). Mary has disqualified herself as a candidate for favorable treatment by the judiciary of any state or nation. Redmond v. Redmond, 2013 WL 3821595 at 18.

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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, or in the alternative, grant rehearing. Respectfully submitted, Petitioner-Appellee By: His Attorneys

/ss/

David N. Schaffer David N. Schaffer Schaffer Family Law Ltd. Attorney for Petitioner-Appellee 200 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 G Wheeling Illinois 60090 (847) 264-0435

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CERTIFICATE OF SERVICE I hereby certify that on August 23nd, 2013 I electronically filed the foregoing with the Clerk of the 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. Schaffer David N. Schaffer Schaffer Family Law Ltd. Attorney for Petitioner-Appellee 200 East 5th Avenue, Suite 108 Naperville IL 60563 (630) 922-4500

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-Appellee 224 S. Milwaukee Avenue Suite G Wheeling Illinois 60090 (847) 264-0435

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