In Lehn v. Al-Thanayyan, the Arizona Court of Appeals affirmed the family court’s determination of parenting time, the cash bond it imposed against Father to exercise parenting time internationally, and its award of attorney’s fees.
The parties were married in 2006 in Arizona. Shortly after their marriage, the parties relocated to Kuwait and lived there for five years. The parties have two minor children, both of whom are dual citizens of Kuwait and the United States. Mother and the children moved back to Arizona and lived here continuously, while Father continued to live primarily in Kuwait, until Mother filed for divorce.
During the divorce proceedings, Mother claimed that Father owned several businesses based in Kuwait. She sought disclosure of financial records related to each business entity. Father denied ownership and claimed that his family owned a principal business and that the other business entities were its subsidiaries. He refused to provide the records Mother requested.
Mother presented evidence at trial that Father was listed online at the parent company’s website as an authorized partner, co-founder, and owner. Father also identified himself as the company’s chief executive officer on business cards and social media profiles. Mother further showed the family court that the Kuwait Chamber of Commerce registry previously listed Father as an authorized partner, though this status was changed before trial.
Mother also testified that Father earned more income during the marriage than he claimed. She provided evidence that Father deposited an average of $12,000 per month into a United States bank account, paid the mortgage and the two children’s private school tuition, and gave Mother an additional $8,000 per month for her expenses, vastly exceeding the monthly income Father claimed—$12,337.
The family court determined that Father likely owned interests in the other companies but could not determine the value of the entities because Father refused to provide necessary business records. The family court ordered Father to be responsible for all of the community debt ($241,000) and awarded 85% of funds in a credit union account to Mother. The family court also awarded Mother a portion of her attorney’s fees based on the income disparity.
The issue of parenting time was perhaps more complex. Both parties called expert witnesses to testify regarding international law and how it applied to this case. Mother asked the family court to order that Father’s parenting time occur only in Arizona and that Father surrender his passport and United States permanent residence card before each visit because Mother worried that Father would take the children to Kuwait never to return them to Arizona.
Ultimately the family court ordered Father’s parenting time must occur in Arizona unless Father posted a $2.5 million cash bond per child to secure their safe return from Kuwait. The family court based its ruling on findings that:
Kuwait is not a signatory to the Hague convention and has no extradition treaty with the United States;
The legal remedies available to Mother in Kuwait are insufficient;
Father has insufficient ties to the United States and significant ties to Kuwait;
Father presents risk that the children will not be returned if allowed to visit him in Kuwait.
The bond was described as a deterrent to parental kidnapping. Father appealed.
Regarding the unequal division of community property, Father argued that the family court erred because its findings did not include a valuation for the business interests it concluded Father owned.
The Court of Appeals rejected this argument and reminded Father that “[w]here a party’s own ‘obstructionist behavior’ prevents an accurate determination of the community’s interest in an asset, the court may award [the other] party a greater share of community assets.” Under Arizona law, a party’s concealment of income or assets is relevant to the family court’s division of community property.
Father also appealed the parenting time determination and the bond imposed. Father argued that the family court abused its discretion when it found Father to be essentially a flight risk. He further argued that the cash bond violated his fundamental right to custody and control of his children and exceeded the family court’s legal authority.
It is important to understand that the Court of Appeals generally does not reweigh evidence. An appeal is not a new trial. It defers to the family court’s determinations of witness credibility and weight given to conflicting evidence. The evidence is considered in the light most favorable to affirming the family court’s decision. So long as it does not constitute an abuse of discretion, these evidentiary issues typically are not disturbed. Here the Court of Appeals found that the evidence admitted supported all of the family court’s findings.
Courts are permitted to “regulate international travel within the bounds of due process.” This enables family courts to discretionarily prevent a parent from taking children to another country without the other parent’s consent—a provision commonly included in most Arizona child custody decrees.
More specifically, the Court of Appeals held that A.R.S. 25-403.02 authorized the family court to impose conditions upon parenting time “necessary to promote and protect the emotional and physical health of the child.” The Court of Appeals reasoned that the cash bond deterred violations of the parenting time orders and protected the children from harm that would arise from parental abduction.
Father argued that the amount of the bond was excessive and unrelated to the anticipated costs Mother might incur to litigate a violation of the parenting plan. But Father misconstrued the purpose of the bond. It is not imposed to compensate Mother but rather to deter Father from violating the parenting plan in the first place.
The Court of Appeals also affirmed the family court’s decision to award Mother a portion of her attorney’s fees. Father argued that the family court failed to consider the parties’ relative financial resources, Mother’s ability to pay her fees, and Father’s ability to pay both parties’ fees. Critically, an Arizona family law litigant need not prove an inability to afford his or her fees to be eligible for an award of attorney’s fees under A.R.S. 25-324. The statute simply requires a party to prove there is a relative financial disparity—that he or she has fewer financial resources than the other party.