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In re Lehn

Court of Appeals of Arizona, First Division

March 7, 2019

In re the Matter of: TIFFANY LEE LEHN, Petitioner/Appellee,
v.
AHMAD A. AL-THANAYYAN, Respondent/Appellant.

          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 ...


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