Lehn v. Al-Thanayyan , 246 Ariz. 277 ( 2019 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
TIFFANY LEE LEHN, Petitioner/Appellee,
v.
AHMAD A. AL-THANAYYAN, Respondent/Appellant.
No. 1 CA-CV 17-0756 FC
FILED 3-7-2019
Appeal from the Superior Court in Maricopa County
No. FC2016-091419
The Honorable Laura M. Reckart, Judge
AFFIRMED
COUNSEL
Hallier & Lawrence, PLC, Phoenix
By Angela K. Hallier, Brandon L. Leibsohn
Co-Counsel for Petitioner/Appellee
Jones, Skelton & Hochuli PLC, Phoenix
By Eileen Dennis GilBride, Sean M. Moore
Co-Counsel for Petitioner/Appellee
Owens & Perkins PC, Scottsdale
By Max Nicholas Hanson
Counsel for Respondent/Appellant
OPINION
Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Ahmad A. Al-Thanayyan (“Father”) appeals from the
property allocation, parenting time restrictions, and award of attorneys’
fees in the decree dissolving his marriage to Tiffany Lee Lehn (“Mother”).
Father claims that the family court inequitably allocated community
property and debt in Mother’s favor. He also argues that the court had no
authority to require him to post a cash bond of $2.5 million for each child to
secure their safe return from Kuwait and that the record does not support
the need for a bond in that amount. He further claims that the court abused
its discretion by awarding Mother her attorneys’ fees.
¶2 We affirm the decree. The family court did not abuse its
discretion in allocating the community property and debt in Mother’s favor
because the allocation was equitable given Father’s attempt to hide the
community’s interest in his Kuwaiti businesses and the income from those
businesses. The court also had discretion to impose the cash bond under its
authority to determine parenting time in the children’s best interests, and
the amount was not an abuse of discretion given the degree of risk that
Father might relocate the children to Kuwait and fail to return them to
Mother. Further, the court properly awarded Mother attorneys’ fees
because it found that a substantial financial disparity existed between the
parties.
FACTS AND PROCEDURAL HISTORY
¶3 Father is a Kuwaiti citizen who has United States lawful
permanent resident status, and Mother is a United States citizen. The
parties were married in Arizona in 2006. Shortly thereafter, the parties
moved to Kuwait and lived there for five years. Their older child was born
in Kuwait in 2008. While the parties lived in Kuwait, Mother and the older
child would travel to the United States. When Mother became pregnant
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with the parties’ second child in 2011, Father gave the consent required by
Kuwaiti law for her to return permanently to the United States. The
children are dual citizens of Kuwait and the United States. When Mother
returned to the United States, the parties purchased a home in Arizona.
Father traveled to Arizona several times a year, and Mother brought the
children to Kuwait each summer for a month-long visit.
¶4 During the marriage, Father worked for the Kuwait
Municipal Ministry and a Kuwaiti business called Uptown Trading
Company (“Uptown”). In the dissolution proceedings, Mother claimed
Father also owned other Kuwaiti businesses, including Al-Thanayyan
International Company (“AIC”), Smart Tech, Smart Zone, and Free Zone,
and sought disclosure from Father of financial documents concerning those
entities. Father did not provide the requested discovery, claiming that he
could not obtain the business records because AIC was a family business in
which he had no ownership interest and the other companies were merely
AIC’s subsidiaries.
¶5 At trial, Mother provided evidence that Father was
previously listed on the AIC website as an authorized partner, co-founder,
and owner and identified himself as its chief executive officer on business
cards and social media. Both parties presented evidence that in Kuwait, to
bear the name “Al-Thanayyan International Company,” the company
would need to be owned by a person with that surname. Father claimed his
father started AIC.
¶6 The evidence showed that the Kuwait Chamber of Commerce
registry had listed Father as an authorized partner of AIC and Smart Zone,
but that he was no longer listed as such at the time of trial. Mother’s expert,
Mary Ann Sharp, testified that the Chamber of Commerce would not have
listed Father as an owner unless it received documentary evidence of an
ownership interest. Sharp agreed, however, that the Kuwait Ministry of
Commerce, not the Chamber of Commerce, maintains the official registry
of business ownership in Kuwait, and Father was not listed as an owner of
any business on the Kuwait Ministry’s registry.
¶7 As further evidence that Father had an ownership interest in
or earned additional income from these businesses, Mother testified that
during the marriage Father’s income was higher than he claimed. Mother’s
evidence established that Father deposited an average of $12,000 per month
in a United States bank account, paid the mortgage and the two children’s
private school tuition, and gave Mother $8,000 per month for her expenses
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even though he claimed that he only earned $12,337 per month from the
Kuwait Ministry and Uptown.
¶8 The family court found that Father likely had an ownership
interest in these Kuwaiti businesses and had received income for the benefit
of the community “at some point in time.” The court also found that he had
provided insufficient disclosure of those interests or had otherwise hidden
assets. For that reason, the court could not determine the value of these
business interests. To compensate Mother for her share of the community’s
interest in these businesses, the court ordered Father to pay the entire
balance of a $241,000 community debt and awarded Mother 85 percent of
the community Metro Health Savings Federal Credit Union account, which
contained $21,132.
¶9 Both parties called experts in international law to address
Mother’s request that Father’s parenting time occur only in Arizona
because she feared that if he were permitted to take the children to Kuwait,
he would not return them to the United States. Mother also requested that
Father be ordered to surrender his passport and United States permanent
resident card to his attorney before exercising parenting time in the United
States. Mother was concerned because Kuwait is not a signatory to the
Hague Convention on the Civil Aspects of International Child Abduction
(“Hague Convention”), which “seeks ‘to secure the prompt return of
children wrongfully removed to or retained in any Contracting State,’ and
‘to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.’”
Abbott v. Abbott, 560 U.S. 1, 8 (2010) (quoting Hague Convention, Art. 1,
Treaty Doc., at 7).1
¶10 The experts agreed that Mother would need Father’s
permission to leave Kuwait with the children but offered conflicting
opinions about Mother’s legal recourse in Kuwait if Father failed to return
the children. Father’s expert testified that the parties could enter into a
written agreement requiring Father to return the children to Mother in
Arizona, but he conceded that such an agreement would be revocable, and
he could not cite any case previously implementing such an agreement.
1 Kuwait has not signed the Hague Convention. See
https://www.hcch.net/en/instruments/conventions/status-
table/?cid=24 (listing contracting countries) (last viewed February 4, 2019).
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¶11 Mother’s expert, attorney Jeremy Morley, testified that he
“concentrate[s] exclusively on international family law matters,
particularly, including international child custody matters, and
international child abduction prevention [and] recovery.” He admitted that
his opinions about Father were based on facts obtained from Mother and
Father’s expert, and he acknowledged that to the extent those facts may be
incorrect, his opinions would lack foundation. Morley relied on official
statements and information about Kuwaiti law from the United States
Department of State, the United Kingdom, and non-governmental
organizations that provide information relating to international child
abductions. Morley testified that he had done extensive research into
international child custody disputes, written several articles and two
treatises on the subject, and provided expert testimony in courts across the
United States and internationally. Father stipulated that Morley was an
expert. Morley testified about some of the factors listed by section 7 of the
Uniform Child Abduction Prevention Act (“UCAPA”) and further testified
that other United States courts have applied similar risk assessment factors.
On cross-examination, Father questioned the level of Morley’s experience
with Kuwaiti cases and the bases for his opinions but did agree with some
of Morley’s testimony on Kuwait family law.
¶12 Evidence showed that Father had told one child to lie to
Mother about having a cell phone and had also told that same child he was
old enough to visit Kuwait on his own and “more than that.” According to
Mother, Father refused to explain to her what he meant by the latter
comment. Additionally, Father petitioned for divorce in Kuwait and falsely
alleged that Mother left Kuwait without legal justification and submitted a
power of attorney stating that he is the children’s natural guardian.
¶13 The family court ordered Father to exercise parenting time in
Arizona unless Mother agreed in writing and was given the children’s
passports. Additionally, the court ordered that Father could exercise
parenting time in Kuwait, but only if he first posted a $2.5 million cash bond
per child to secure their safe return. The family court based these parenting
time orders on the following findings:
• Kuwait is not a signatory of the Hague Convention and
has no extradition treaty with the United States;
• The potential legal structures in Kuwait, if any, for Mother
to utilize in order to ensure the return of her Children are
insufficient and/or illusory;
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• Father has insufficient ties to the United States and/or
Arizona, given his lack of employment, family ties and
property (especially in light of the recent sale of his home);
• Father has significant ties to Kuwait, to include
employment, family and property;
• Father is a risk for not returning the Children if they visit
him in Kuwait.
...
• It is in the Children’s best interests to have parenting time
with Father;
• A security bond is the only appropriate and available legal
structure to allow Father to exercise parenting time in
Kuwait; and
• It is in the Children’s best interests to impose a security
bond that is substantial enough to provide a monetary
incentive and/or act as a deterrent to abducting the
Children.
The family court then awarded Mother a portion of her attorneys’ fees after
finding a substantial disparity of financial resources between the parties,
and Father timely appealed.
DISCUSSION
1. Property Allocation
¶14 Father contends the property allocation was inequitable and
an abuse of discretion. The family court has broad discretion to allocate
community property, “and we will not disturb its allocation absent an
abuse of discretion.” Boncoskey v. Boncoskey, 216 Ariz. 448, 451 ¶ 13 (App.
2007). On appeal, we view the evidence in the light most favorable to
affirming the family court’s ruling and will affirm if the evidence
reasonably supports it. Id.¶15 Under A.R.S. § 25–318, community property is to be divided
“equitably” absent a sound reason otherwise appearing in the record. See
Toth v. Toth, 190 Ariz. 218, 221 (1997); see also A.R.S. § 25–318(C) (family
court may consider excessive or abnormal expenditures, destruction,
concealment or fraudulent disposition of community property when
dividing such property at dissolution). “Equitable” “is a concept of fairness
dependent upon the facts of particular cases.” Toth, 190 Ariz. at 221. In this
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case, the unequal allocation of the community debt and bank account was
within the court’s discretion based on the evidence, which supported the
court’s finding that Father attempted to hide the community’s interest in or
income from the Kuwaiti businesses. See A.R.S. § 25–318(C).
¶16 In ordering Father to pay the entire $241,000 community debt,
the court referred to its “findings regarding his business interests.”
Although the court did not specifically refer to these findings in allocating
the community bank account, the court’s allocation of that asset is similarly
supported by its rejection of Father’s claim that he did not have an
ownership interest in the Kuwaiti businesses. Thus, the court did not abuse
its discretion in equitably allocating other community assets or obligations
to compensate Mother for her share of the community interest in the
businesses. See Martin v. Martin, 156 Ariz. 452, 457 (1988) (holding A.R.S.
§ 25–318 “authorize[s] the court to make an award of money instead of
merely dividing property.”).
¶17 Father contends that the court had no basis for this unequal
allocation because the court (1) did not find that he had an ownership
interest in the businesses at the time Mother petitioned for dissolution and
(2) did not make a valuation of these business interests. Neither contention
has merit. First, the court’s finding that Father had received income from
his business interests “for the benefit of the community” necessarily implies
that Father’s business interests existed during the marriage.
¶18 Second, Father cannot complain about the lack of a valuation
of his business interests because his attempts to hide these interests and
recalcitrance in disclosing information about them made a valuation
impossible. Where a party’s own “obstructionist behavior” prevents an
accurate determination of the community’s interest in an asset, the court
may award one party a greater share of community assets. See Hrudka v.
Hrudka, 186 Ariz. 84, 93–94 (App. 1995), superseded by statute on other grounds
as stated in Myrick v. Maloney, 235 Ariz. 491, 494 ¶ 8 (App. 2014); see also
Thomas v. Thomas, 142 Ariz. 386, 392 (App. 1984) (a party’s concealment of
income or assets may be considered when dividing community property).
The valuation cases Father cites do not involve a party concealing assets or
withholding financial records.
¶19 Father complains that the court abused its discretion in
allocating all of a $241,000 community debt to him and 85 percent of a
community credit union account containing $21,132 to Mother.
Considering that Mother presented evidence that Father had business
interests with $3.8 million in capital and Father did not provide any
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evidence of the value of his interests, we cannot say that the court’s
allocations were an abuse of discretion. See Hrudka, 186 Ariz. at 93–94.
2. Parenting Time Restrictions
¶20 Father argues that the imposed parenting time restrictions
were without legal authority or support in the record. On appeal, we do not
reweigh the evidence but defer to the family court’s determinations of
witness credibility and the weight given to conflicting evidence. Gutierrez
v. Gutierrez, 193 Ariz. 343, 347 ¶ 13 (App. 1998). The family court based its
parenting time orders on findings that are consistent with several factors
listed in the UCAPA § 7 for determining whether a parent poses a risk of
abducting the child. As Mother’s expert testified, other United States courts
have applied these and similar risk assessment factors. See, e.g., Moore v.
Moore, 349 P.3d 1076, 1081–83 (Alaska 2015); MacKinnon v. MacKinnon, 922
A.2d 1252, 1259 (N.J. 2007); Katare v. Katare, 283 P.3d 546, 554–55 (Wash.
2012); In re Sigmar, 270 S.W.3d 289, 300–01 (Tex. App. 2008) (applying
UCAPA § 7 factors in addition to risk factors listed in state statute).
Although Arizona has not adopted the UCAPA, the court nevertheless had
the discretion to rely on these factors in the absence of a specific statute to
the contrary as long as it also considered the children’s best interests. See
A.R.S. § 25–403.01(B) (court shall adopt a parenting plan that is consistent
with the children’s best interests); see also Hays v. Gama, 205 Ariz. 99, 102
¶ 18 (2003) (children’s best interests are paramount in custody
determinations).
¶21 The evidence supports the court’s findings that Father has
legitimate reasons to travel to Kuwait, has significant financial and familial
ties to Kuwait, and lacks any significant ties to Arizona, particularly since
he sold his house and has no job in Arizona. The finding that Father might
not return the children to Mother in the United States is supported by
evidence that Father had told one child to lie to Mother about having a cell
phone and had told the child he was old enough to visit Kuwait on his own
and “more than that.” Father refused to explain what he meant by “more
than that.” Moreover, Father petitioned for divorce in Kuwait by falsely
alleging that Mother had left Kuwait without legal justification and
submitted a power of attorney stating that he was the children’s natural
guardian. These filings could be viewed as an attempt to establish rights
under Kuwaiti law.
¶22 The finding that Mother would have no significant legal
recourse is supported by evidence that Kuwait has not adopted the Hague
Convention or entered into a bilateral agreement with the United States
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regarding the return of internationally abducted children. Thus, no
procedure for the return of the children exists other than those available
under Kuwaiti law. Testimony showed that Mother would need Father’s
permission to leave Kuwait with the children and any written agreement
that required Father to return the children could be revoked. Thus, the
evidence supports the conclusion that Mother would have little recourse
available to challenge Father’s rights.
¶23 Father contends the family court abused its discretion by
relying on Morley’s testimony because he relied on information from
Mother, unidentified international law experts, and governmental
informational sources. We will affirm the family court’s admission of
evidence absent an abuse of discretion and resulting prejudice or a mistake
of law. Montgomery v. Miller, 234 Ariz. 289, 297 ¶ 15 (App. 2014).
¶24 Morley testified that he worked exclusively on international
family law matters, including international child custody matters,
international child abduction prevention, and recovery of internationally
abducted children. He explained that his opinions about Father were based
on facts provided by Mother and Father’s expert, and he acknowledged that
his opinions may lack foundation if those facts were incorrect. The factual
statement Mother provided to Morley, however, was substantially
consistent with her trial testimony. Therefore, viewing that evidence in the
light most favorable to affirming the decree, see Boncoskey, 216 Ariz. at 451
¶ 13, Morley’s opinions did not lack foundation.
¶25 Moreover, Morley’s opinions in this case were based on his
extensive experience and research. He relied on official statements and
information about Kuwaiti law from the United States Department of State,
the United Kingdom, and non-governmental organizations that provide
information relating to international child abductions. Morley testified that
he had gained significant knowledge about international child custody
disputes, written several articles and two treatises on the subject, and
provided expert testimony in the United States and internationally. Father
also stipulated that Morley was an expert and that his own expert agreed
with some of Morley’s testimony regarding Kuwait family law. The family
court acknowledged the strengths and weaknesses in both experts’
positions and was in the best position to judge their credibility. See
Gutierrez, 193 Ariz. at 347 ¶ 13. Thus, the court did not abuse its discretion
by accepting Morley’s testimony and report.
¶26 Father also contends the $2.5 million cash bond violates his
fundamental right to custody of his children and is not supported by any
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legal authority. But a parent’s right to custody and control of his or her
children is not absolute. See In re Appeal in Maricopa Cty. Juv. Action No.
JD-6123, 191 Ariz. 384, 392 (App. 1997). Additionally, the court may
regulate international travel within the bounds of due process. See, e.g.,
Califano v. Aznavorian, 439 U.S. 170, 176 (1978); Eunique v. Powell, 302 F.3d
971, 974 (9th Cir. 2002); Sahibzada v. Sahibzada, 757 S.E.2d 51, 52–54 (Ga. 2014)
(holding trial court had discretion to bar father from taking children outside
United States without mother’s permission); Katare, 283 P.3d at 555 ¶ 34.
Given the court’s findings about Father’s business interests, the bond
requirement that the court imposed does not preclude Father from
traveling with the children altogether; it merely conditions his ability to
take the children to Kuwait.
¶27 The family court has authority under A.R.S. § 25–403.02(D) to
create a parenting plan with such conditions as are “necessary to promote
and protect the emotional and physical health of the child.” The bond deters
violations of the court’s parenting time orders and protects the children
from the emotional harm that would be caused by an abduction. Therefore,
the court had authority to impose the bond pursuant to § 25–403.02(D).
Without referring to this statute, this Court upheld the imposition of a bond
to assure that a father returned his children and complied with a parenting
time order in Badertscher v. Badertscher, 10 Ariz. App. 501, 506 (1969),
superseded by statute on other grounds as stated in Bryan v. Bryan, 132 Ariz. 353,
357 n.4 (App. 1982). Other jurisdictions have approved use of a bond to
deter parental abduction of a child. See, e.g., Moon v. Moon, 589 S.E.2d 76,
79–80 (Ga. 2003) (holding court has discretion to impose bond to assure
return of children); Charpie v. Charpie, 752 N.Y.S.2d 291, 293 (App. Div. 2002)
(same); Stonham v. Widiastuti, 79 P.3d 1188, 1197–98 (Wy. 2003) (same).
Pursuant to UCAPA § 8(d)(2), an abduction prevention order may include
a bond or other security “in an amount sufficient to serve as a financial
deterrent to abduction . . . .” Having found the evidence supports the court’s
finding that the children were at risk of not being returned to Arizona if
Father were allowed to take them to Kuwait, we affirm the imposition of a
security bond.2
2 Mother also cites A.R.S. § 25–411(J) as authority for imposing the
bond. Because we rely on § 25–403.02(D), we need not decide whether
§ 25–411(J) would apply here. For the same reason, we also do not address
the application of § 25–403.03(F)(7), which authorizes imposition of a bond
to ensure the safe return of a child where the court finds a parent has
committed an act of domestic violence.
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¶28 Father further argues that the amount of the bond was not
related to the anticipated costs Mother might incur in litigating the forced
return of the children from Kuwait and was excessive given his assets and
income. The purpose of the bond, however, was not to compensate Mother
for the costs she might incur, but to deter Father from abducting the
children. Thus, the cases Father cites concerning supersedeas or other
bonds are not persuasive. The family court found that Father had
undisclosed ownership interests in and income from Kuwaiti businesses.
Because Father had failed to disclose relevant financial records, Mother had
no precise evidence of Father’s income and ownership interests in the
Kuwaiti businesses. She did provide evidence, however, that at least one of
Father’s businesses in Kuwait may be worth $3 million. Therefore, Father
cannot now complain that the amount the court found would act as a
deterrent was excessive. Furthermore, given the court’s authority to
prohibit international travel altogether, see Katare, 283 P.3d at 555 ¶ 34, we
cannot conclude that the amount of the bond, although significant, is an
abuse of discretion. We affirm the parenting time orders and the bond
provisions.3
3. Award of Attorneys’ Fees to Mother
¶29 Father argues the family court abused its discretion in
denying his request for an award of attorneys’ fees and by awarding fees to
Mother under A.R.S. § 25–324(A), which authorizes an award of attorneys’
fees after considering both parties’ financial resources and the
reasonableness of their positions throughout the proceedings. We review
the award of attorneys’ fees under this statute for an abuse of discretion.
Myrick, 235 Ariz. at 494 ¶ 6.
¶30 According to Father, the family court failed to properly
consider the parties’ relative financial resources, Mother’s ability to pay her
own fees, and Father’s ability to pay his own and Mother’s fees. However,
Mother’s ability to pay is not dispositive. “[Section] 25–324 does not require
‘a showing of actual inability to pay as a predicate’ for an award; ‘all a party
need show is that a relative financial disparity in income and/or assets
exists between the parties.’” Id. at ¶ 9 (quoting Magee v. Magee, 206 Ariz.
589, 589 ¶ 1 (App. 2004) (alteration in Myrick).
3 For the first time in his reply brief, Father suggests the bond was the
result of judicial bias but fails to include any citations or authority. Thus,
this issue is not properly before us on appeal. See Marco C. v. Sean C., 218
Ariz. 216, 218–19 ¶ 6 (App. 2008).
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¶31 Father disputes any significant disparity in the parties’
monthly incomes based on the child support order and the net property
allocation in the decree. Although the family court was unable to attribute
a specific amount of income to Father from the Kuwaiti businesses,
Mother’s evidence suggested that Father’s income was much higher than
reported on the child support order or income tax returns. On appeal, we
do not reweigh this evidence and will defer to the family court’s resolution
of this factual dispute. See Gutierrez, 193 Ariz. at 347 ¶ 13. The record
supports the finding of a substantial disparity in assets.
¶32 Father contends that, contrary to Mother’s assertion, the
family court did not find that he took an unreasonable position in the
litigation. In awarding attorneys’ fees, the court found “it has previously
taken into consideration Father’s insufficient disclosure and hiding of
assets.” Thus, Father’s argument fails.
CONCLUSION
¶33 For the foregoing reasons, we affirm. Both parties request an
award of attorneys’ fees and costs under A.R.S. § 25–324, and Father also
requests fees under A.R.S. § 12–341.01. This matter does not arise out of
contract; therefore, fees are not warranted under A.R.S. § 12–341.01. After
considering the parties’ financial resources and the reasonableness of the
parties’ positions, we award Mother her attorneys’ fees and costs upon her
compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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