Appeal
from the Superior Court in Maricopa County No. FC2016-091419
The Honorable Laura M. Reckart, Judge
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
Judge
Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz
joined.
OPINION
HOWE,
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 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 AICs 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 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.
¶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 ...