In Re the Marriage of Amanda Abd El Krim and Mohamed Khalil Amin Upon the Petition of Amanda Abd El Krim, and Concerning Mohamed Khalil Amin ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1620
Filed June 7, 2017
IN RE THE MARRIAGE OF AMANDA ABD EL KRIM
AND MOHAMED KHALIL AMIN
Upon the Petition of
AMANDA ABD EL KRIM,
Petitioner-Appellee,
And Concerning
MOHAMED KHALIL AMIN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, John J. Haney, Dale
E. Ruigh, and James A. McGlynn, Judges.
An Egyptian father contests the Iowa court’s jurisdiction over the
dissolution of his marriage and related custody and property issues. AFFIRMED
AS MODIFIED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Kathryn E. Davis, Cedar Rapids, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
In this divorce appeal, we consider the arguments of an Egyptian citizen
contesting the jurisdiction of the Iowa courts to consider his ex-wife’s petition.
Mohamed Khalil Amin challenges the decree dissolving his marriage to Amanda
Abd El Krim, alleging the district court lacked subject matter jurisdiction under the
residency requirement at Iowa Code section 598.5(1)(k) (2013) and the Uniform
Child-Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Iowa
Code chapter 598B. If we find jurisdiction, Mohamed asks us to modify the
decree’s provisions on the following issues: custody, visitation, child support,
spousal support, and the property award. Finally, Mohamed seeks attorney fees
and court costs.
On the threshold claims, we conclude the Iowa district court had
jurisdiction to dissolve this marriage and decide the related custody and property
issues. Accepting the strong credibility findings reached by the district court in
the decree, we affirm the decree in all but one respect. We modify the decree’s
visitation provision to incorporate the more specific language used in the order on
temporary matters—allowing only supervised visitation in Iowa. We decline
Mohamed’s request for fees and costs.
I. Facts and Prior Proceedings
In July 2009, Amanda and Mohamed were married in Alexandria, Egypt.
The family moved temporarily to Dubai, United Arab Emirates, where Mohamed
worked as a computer systems engineer. Amanda testified the parties were still
citizens of Egypt while living in Dubai. Mohamed testified: “Dubai is not a
permanent place for me to live. Just for job.” They travelled to the United States
3
in the spring of 2010 and lived in Chicago when their son, A.M.A., was born in
May 2010.1 A few weeks after his birth, they returned to Dubai. Mohamed is a
citizen of Egypt. Amanda’s parents are Egyptian, but she was born in New York
and, therefore, has dual citizenship. Because A.M.A was born in the United
States, he also has dual American and Egyptian citizenship.
Amanda and Mohamed separated in October 2011 while living in Dubai.
Amanda returned with A.M.A. to Egypt for three months before moving to Iowa in
December 2011. Amanda testified she resettled in the Midwest because
Chicago was the only place she had lived in the United States: “I chose Iowa
because it’s the same culture but less expensive, family-oriented. I can raise a
kid here and also to go to school.” Mohamed testified Amanda came to Iowa
because she was romantically involved with an old college classmate from Egypt
who was obtaining a degree here. In January 2012, Mohamed came to the
United States.
Amanda and Mohamed are both well-educated. Amanda, who was
twenty-nine years old at the time of this dissolution action, received a bachelor of
arts degree from the University of Alexandria. She testified her Egyptian degree
was not recognized in this country, so she enrolled in pre-med classes at Iowa
State University. Mohamed, who was thirty-nine years old, has an engineering
degree and has worked in high-paying jobs in the computer industry.
According to Amanda’s testimony, A.M.A. has been diagnosed on the
autism spectrum and has experienced developmental delays. At trial, Amanda
attributed A.M.A.’s “birth defects” to physical abuse inflicted by Mohamed during
1
Mohamed testified the couple came to United States for “purpose of delivery only.”
4
her pregnancy. She has sought therapy and clinical services for A.M.A in Iowa,
and those interventions have improved his ability to interact with others.
On September 16, 2013, Amanda filed a petition for separate
maintenance, seeking sole custody of A.M.A., as well as child and spousal
support. The petition alleged Mohamed resided in California. Mohamed was
adamant the petition should not go forward in the Iowa courts. He filed at least
six separate motions to dismiss. When the district court denied those motions,
Mohamed asked for appellate review, which the supreme court repeatedly
denied as interlocutory.
In one of his motions to dismiss, filed November 6, 2013, Mohamed
alleged Amanda provided inaccurate information in her petition, specifically that
no custody proceedings were pending in any other state. The motion alleged
custody litigation was pending in the parties’ home country of Egypt, and under
Iowa Code section 598B.105, the Iowa district court was to treat a foreign country
as if it were a state and apply the UCCJEA articles concerning jurisdiction. At a
December 9, 2013 evidentiary hearing, Amanda testified she filed for “a divorce
of hardship” through her mother acting as power of attorney in early 2012. But
because the courts in Egypt were not functioning properly and she had not
returned to that country since December 2011, she had dismissed that action.
On January 31, 2014, the district court denied the motion to dismiss,
concluding,
because A.M.A. has been residing with his mother in Iowa for more
than the last year, Iowa is the child’s “home state” for purposes of
litigation over his custody. Iowa Code section 598B.102(7).
Accordingly, Iowa has jurisdiction to make an initial custody
determination regarding A.M.A. Iowa Code section 598B.201(1)(a).
5
No impediment to Iowa’s jurisdiction exists under the circumstances
described in Iowa Code section 598B.206.
On September 16, 2015, the district court issued an order on temporary
matters. The order stated, due to Mohamed’s “obstinate and obstructionist
pleadings, appeals, and legal maneuvering,” Amanda’s 2014 “application for an
order on temporary matters could not be heard until August 15, 2015.” The court
found Mohamed (1) “has worked in high-paying jobs in the computer industry in
the United States and Egypt, but he claims he is unemployed at this time” and
(2) “strongly believes his child should be with him and the custody and visitation
issues should be addressed in Egypt since he is an Egyptian citizen.” The court
also stated:
Mohamed’s current whereabouts cannot be verified to the Court’s
satisfaction, Mohamed has had no contact with the child for at least
two years and as long as three years, there is no showing that
Mohamed has provided support of any kind in any amount for
Amanda or for A.M.A., through his legal maneuvering Mohamed
has avoided the imposition of a child support order for two years,
and Mohamed is now a stranger to his child.
The court placed temporary legal custody and physical care with Amanda and
ordered any visitation to be supervised. The court also ordered Mohamed to pay
temporary child support of $114 per month.
On November 3, 2015, Amanda moved for leave to amend the petition,
requesting to dissolve the marriage rather than to establish separate
maintenance. The court granted her motion on November 4, 2015, and set the
matter for a trial scheduling conference. Trial was set for May 4, 2016. On
April 21, 2016, Mohamed filed another motion to dismiss and a motion to
continue the trial. He alleged for the first time that the parties’ marriage had been
6
“previously dissolved in Dubai in 2012.” At a hearing on the motion to dismiss,
Amanda testified she first learned of the Dubai divorce in 2015 when a friend did
a record search in that country and sent her a copy. Mohamed asserted the
Dubai divorce only terminated the parties’ marital status and could not resolve
child custody and support issues. In an order denying the motion to dismiss, the
district court ruled:
At most, the Dubai decree is a termination of the marriage status. It
does not claim to determine child custody, visitation or support. It
does not claim to determine spousal support, or property division.
[Mohamed’s] repeated assertions that the parties remained wife
and husband for more than a year after the Dubai decree was
entered casts serious doubt on whether that decree was actually a
divorce as that term is understood in Iowa. Even if it was, the
issues relating to the child remain and must be resolved.
The district court held a dissolution trial on August 10, 2016. Amanda
appeared in person and testified she believed that Mohamed currently lived and
worked in California. She also presented evidence Mohamed bought a house for
$655,000 in San Jose, California, in September 2014. Mohamed appeared by
telephone, claiming he currently lived in Egypt, was “not able to get employment,”
and was “struggling and hunting for opportunities.” When asked whether he held
title to the California house, Mohamed was evasive:
I don’t know if—it’s my friend’s house so I don’t know all my
liabilities on this house. I give it to him. I don’t know—we already
signed this in Dubai. He was overseas. I tell you I don’t know. I
work with agent. I’m not aware of the real estate. I’m not from U.S.
I just make—provide the paper. I got permission on having to
receive the loan for this home so I don’t know.
On the question of custody, Mohamed testified he was not able to come to the
United States to see A.M.A., so he “expect[ed] the child to be in Egypt.” He
7
testified that he was living in Cairo at time of trial with a new wife and they were
expecting a baby.
On September 8, 2016, the district court issued the dissolution decree.
The court concluded Amanda met the residency requirements for obtaining an
Iowa divorce. The district court did not find Mohamed to be credible, concluding
he had been “caught in a web of lies.” The court expressed grave skepticism
concerning Mohamed’s financial disclosures. The court first discussed
Mohamed’s California real estate deal:
It is undisputed that Mohamed is the record title owner of a
house located at [] Cropley Avenue, San Jose, California, as well
as a related bank account used for mortgage payments or escrow
payments. . . . Mohamed testified at trial that he left the United
States at the end of 2013, that he purchased the house in California
through a real estate agent, that his friend, Mr. Hussein, arranged
everything, that he simply signed documents, that his friend
supplied the entire down payment of $50,000—$55,000, that
although the bank account is in his name, it is managed by Mr.
Hussein, and the money in that account belongs to Mr. Hussein
and that the house is the property of Mr. Hussein. Mohamed also
testified that Mr. Hussein was a student, that Mohamed owed Mr.
Hussein some amount of money and that he agreed to take title to
the house in his name as a way of working off this debt.
Mohamed’s story is incredible, literally so, because it is
unbelievable. . . . Something smells. Mohamed claimed he simply
signed documents, but buying a house and getting a $600,000
mortgage are not such simple feats.
The district court was struck by the impossibility that Mohamed could earn
as little as he reported and still borrow the money necessary to purchase the
California real estate:
What bank would loan $600,000 to someone who is unable to pay
114 American dollars a month? On October 10, 2014, just a few
days after purchasing a home for $655,000, Mohamed filed an
application to defer appeal filing fees with the Iowa Supreme Court.
In paragraph 6 of the application he told the Iowa Supreme Court
he was “financially exhausted” and in paragraph 14 he said he had
8
no ability to pay an additional court fee or legal counsel fee. On
August 17, 2015, Mohamed filed his financial affidavit and under
the heading of “real estate” he answered “none for the husband.”
No mention of the bank account connected with the mortgage was
made on the financial affidavit. . . . The bottom line is Mohamed
has lied under oath. If he told the truth to the bank, then
necessarily it means he lied under oath to the Court about his
income and resources. On the other hand, if the story he gave to
the Court is true . . . then necessarily it means he perpetrated a
fraud on the bank by providing false information under oath to
obtain the mortgage. Perhaps he lied to both the bank and to the
Court. The bedrock determination in this case is that Mohamed
has perjured himself and he cannot be believed.
The court awarded Amanda sole legal custody and physical care of
A.M.A. The court decided “Mohamed should have reasonable rights of
visitation.” The court also ordered Mohamed to pay child support of $114 per
month. The court ordered spousal support of $1 per year until Amanda dies,
remarries, or reaches age sixty-five. In addition, the court awarded Amanda “any
dowry or similar payment made or owing by Mohamed,” as well as “all right, title
and interest which Mohamed or Amanda or the two of them jointly may have in
the California home and related bank account.”
Mohamed filed a notice of appeal and has briefed numerous issues.
Amanda filed a waiver of her opportunity to respond by appellee’s brief.
II. Scope and Standards of Review
Our review is de novo, even on the jurisdictional claims. See In re
Marriage of Kimura, 471 N.W.2d 869, 877 (Iowa 1991); see also In re Jorgensen,
627 N.W.2d 550, 555 (Iowa 2001). In equity cases such as this one, we give
weight to the district court’s fact findings but are not bound by them. See Kimura,
471 N.W.2d at 877. We are especially deferential when the district court makes
credibility determinations about the parties. See In re Marriage of Gensley, 777
9
N.W.2d 705, 713 (Iowa Ct. App. 2009); see also In re Marriage of Williams, 589
N.W.2d 759, 761 (Iowa Ct. App. 1998) (“We will not second-guess those
credibility findings.”). In addition, we give the district court considerable
discretion in awarding spousal support and will disturb an award only if we find it
inequitable. See In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
III. Subject Matter Jurisdiction
A. One-Year Residency Requirement for Petitioner
Mohamed first claims the district court acted improperly by finding
Amanda satisfied the “one-year, good-faith minimum residency requirement” for
a petitioner filing for divorce from a spouse living outside of Iowa. See Root v.
Toney, 841 N.W.2d 83, 92 (Iowa 2013). Iowa Code section 598.5(1)(k) provides:
Except where the respondent is a resident of this state and
is served by personal service, [a petition shall] state that the
petitioner has been for the last year a resident of the state,
specifying the county in which the petitioner has resided and the
length of such residence in the state after deducting all absences
from the state, and that the maintenance of the residence has been
in good faith and not for the purpose of obtaining a dissolution of
marriage only.
While Amanda lived in Iowa for more than one year at the time of filing her
petition, Mohamed claims Amanda did not maintain her Iowa residence in good
faith but, rather, for a “nefarious” purpose. He alleges Amanda relocated to Iowa
to deny him access to their son; therefore, she did not fulfill the residency
requirement under section 598.5(1)(k).
As an initial matter, Amanda’s dual Egyptian-American citizenship does
not bar her from asking an Iowa court to dissolve her marriage. See Kimura, 471
N.W.2d at 878. In Kimura, our supreme court rejected a residency challenge to a
10
dissolution action brought by a Japanese citizen, noting “nothing in the evidence
to support” the wife’s contention that her husband’s residence here was “in bad
faith and only for the purpose of obtaining a dissolution of marriage.” Id.(acknowledging Iowa’s “liberal dissolution marriage law as compared to Japan’s”
may have been “one reason” the husband moved to Iowa but concluding that fact
was not sufficient to defeat a finding of residency).
When reviewing Amanda’s motives for establishing a residence in our
state, the district court found “her purpose and intent for residing in Iowa was to
provide a suitable home for herself and her child and to attend school, and not
just to obtain a dissolution of marriage.” From our de novo review of the record,
we reach the same result. The record does not support Mohamed’s accusation
that Amanda “absconded” to Iowa with A.M.A. Mohamed complained at trial that
“because of Amanda’s actions he cannot get permission to return to the United
States in order to see his son.” The district court did not believe that complaint
nor Mohamed’s testimony in general. We defer to those credibility findings.
Amanda satisfied section 598.5(1)(k)’s residency requirements, and the district
court had jurisdiction to hear and decide her petition.
B. UCCJEA
Mohamed next invokes the UCCJEA, Iowa chapter 598B, as an
impediment to the district court’s jurisdiction to rule on Amanda’s petition. 2 He
2
Mohamed’s brief also cites the International Child Abduction Remedies Act, 22 U.S.C.
§§ 9001–11, enacted by Congress to implement the Hague Convention on the Civil
Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, 19 I.L.M.
1501. The Hague Convention is a multinational treaty establishing legal rights and
procedures for the prompt return of children who have been wrongfully removed from
one signatory nation or wrongfully retained in another. See Hague Convention, art. 1, 19
I.L.M. at 1501. Egypt is not a signatory. See https://travel.state.gov/content/child
11
argues the district court should not have decided A.M.A.’s custody because
Amanda commenced a child-custody proceeding in Egypt that was still pending
when she filed her petition in Iowa. Amanda acknowledged at a December 9,
2013 hearing that she had filed for a “divorce of hardship” while she was in Egypt
at the end of 2011; she described her request as asking for “mediation to fix this
family,” but she asserted Mohamed did not respond.3 She testified, in the fall of
2013, she moved to dismiss the action in Egypt, reasoning “we are both living in
another country so Egypt hasn’t any jurisdiction to deal with the case there. So
the case has been dismissed.”
The UCCJEA provides “the exclusive jurisdictional basis for making a child
custody determination by this state.” In re Guardianship of Deal-Burch, 759
N.W.2d 341, 343–44 (Iowa Ct. App. 2008). The provisions of the UCCJEA
generally apply to courts of foreign countries. See Iowa Code § 598B.105.
After a hearing on Mohamed’s motion to dismiss citing the UCCJEA, the
district court ruled that Iowa was A.M.A.’s “home state” for the purposes of
litigating his custody. See id. § 598B.102(7) (defining “home state” as the state in
which a child lived with a parent for at least six consecutive months immediately
before the commencement of a child-custody proceeding). The court decided it
had jurisdiction to make the initial custody determination under
section 598B.201(1)(a) (recognizing Iowa jurisdiction where Iowa is child’s “home
abduction/en/country/hague-party-countries.html (last visited May 23, 2017). So even if
Amanda’s removal of A.M.A. could be considered wrongful, which the record does not
support, in this circumstance, Mohamed has no rights under the Hague Convention.
See Taveras v. Taveras, 397 F. Supp. 2d 908, 912 (S.D. Ohio 2005) (declaring it “well-
settled law” that “there is no remedy” when a child is taken from a non-signatory country
and retained in a signatory country (citation omitted)).
3
The record also suggests that Amanda’s mother, who lived in Egypt, may have acted
as her attorney-in-fact in regard to that lawsuit during 2012.
12
state”). The court further found no impediment to its jurisdiction under the
circumstances described in Iowa Code section 598B.206(1), the UCCJEA’s
provision governing simultaneous proceedings:
Except as otherwise provided in section 598B.204 [on
temporary emergency jurisdiction], a court of this state shall not
exercise its jurisdiction under this article if, at the time of the
commencement of the proceeding, a proceeding concerning the
custody of the child has been commenced in a court of another
state having jurisdiction substantially in conformity with this chapter,
unless the proceeding has been terminated or is stayed by the
court of the other state because a court of this state is a more
convenient forum under section 598B.207.
On appeal, Mohamed concentrates on section 598B.206, contending
“Iowa should have declined jurisdiction because of the already-pending custody
action in Egypt and Amanda’s unjustifiable conduct.” He contends the district
court should not have accepted Amanda’s testimony that the action in Egypt had
been dismissed. The district court carefully considered Mohamed’s argument
under the UCCJEA and decided “the Egyptian court did not enter any orders
fixing custody of the parties’ son in that case and that Amanda’s Egyptian case
was dismissed.” The documentation provided by Mohamed appeared to involve
different lawsuits that he filed in the Nasr City family court. The district court
found “no proof” Amanda “ever filed an appearance or otherwise submitted to the
jurisdiction of the Egyptian court in the proceedings he brought.” In our de novo
review, we agree that Mohamed’s documents did not rebut Amanda’s testimony
that the action she filed had been dismissed. The district court properly
determined it could exercise jurisdiction under the terms of section 598B.206(1).
Next, Mohamed argues the district court should have declined jurisdiction
over Amanda’s petition because Iowa was an inconvenient forum under Iowa
13
Code section 598B.207. He contends, because he faces restrictions on his
travel to the United States, his witnesses were based in the Middle East, and his
native language is Egyptian, the more convenient forum for both parties would
have been Egypt.
When deciding if it is appropriate for a court of another state to exercise
jurisdiction, an Iowa court must consider the following factors: (1) whether
domestic violence has occurred and is likely to continue in the future and which
state could best protect the parties and the child; (2) the length of time the child
has resided outside this state; (3) the distance between Iowa and the court in the
state that would assume jurisdiction; (4) the parties’ relative financial
circumstances; (5) any agreement between the parties as to which state should
assume jurisdiction; (6) the nature and location of the evidence required to
resolve the pending litigation, including the child’s testimony; (7) the ability of the
court of each state to decide the issue expeditiously and the court procedures
necessary to present the evidence; and (8) the familiarity of the court of each
state with the facts and issues in the pending litigation. Id. § 598B.207(2).
None of these factors support Mohamed’s argument that Egypt would
have been the more convenient forum. The case before us does not involve
modification of a custody determination but is the original custody determination.
Contrast In re Marriage of Hocker, 752 N.W.2d 447, 450 (Iowa Ct. App. 2008)
(ruling location of children post-decree was relevant to determination of state
jurisdiction for modification petition). A.M.A. moved to Iowa in December 2011
and remained in Iowa at the time of the dissolution trial. The Iowa courts have
14
become very familiar with the case through Mohamed’s vigorous litigation of the
jurisdictional issues. The Iowa courts were not an inconvenient forum.
IV. Custody, Visitation, and Child Support
A. Sole Legal Custody
The decree awarded sole legal custody to Amanda. On appeal, Mohamed
argues the district court “failed to cite clear and convincing evidence, pursuant to
the factors in Iowa Code section 598.41(3), that joint custody is unreasonable
and not in the best interest of the child.” See Iowa Code § 598.41(2)(b). He
asserts Amanda removed the child “out of Egypt without Mohamed’s consent.”
Thus, he contends, granting her sole legal custody constituted “rewarding the
perpetrator for wrongdoing.”4
Mohamed’s argument misses the mark. Custody determinations are not
about punishing or rewarding the parents. “In child custody cases, the first and
governing consideration of the courts is the best interests of the child.” Iowa R.
App. P. 6.904(o). In considering whether to grant joint or sole legal custody,
Iowa courts weigh a list of factors developed by the legislature; the following are
pertinent here: (1) whether each parent would be a suitable custodian for the
child, (2) whether the psychological and emotional needs and development of the
child will suffer due to lack of active contact with and attention from both parents,
(3) whether the parents can communicate with each other regarding the child’s
needs, (4) whether both parents have actively cared for the child before and
since the separation, (5) whether each parent can support the other parent's
relationship with the child, (6) whether one or both the parents agree or are
4
Mohamed does not appeal the district court’s grant of physical care to Amanda.
15
opposed to joint custody, (7) the geographic proximity of the parents, (8) whether
the safety of the child or the other parent will be jeopardized by the awarding of
joint custody or by unsupervised or unrestricted visitation, and (9) whether a
history of domestic abuse exists. See Iowa Code § 598.41(3).
Mohamed testified he has not seen his son since October 2011. Although
he suggested in his testimony that Amanda denied him access to A.M.A. when
he was working in the United States, the record shows Mohamed never
requested visitation through the courts and never exercised the visitation allowed
under the 2015 court order on temporary matters. Amanda has been the sole
caregiver since moving with A.M.A. to Iowa in December 2011. Amanda has
been addressing the child’s special needs. She testified she would like A.M.A. to
have a relationship with his father, but she was not sure how it would work
because Mohamed “broke every single bridge between us.”
As the district court expressed in the decree, Mohamed offered “no
credible information” concerning his ability to provide for A.M.A.’s health,
education, or welfare. See id. The court noted: “Even if Mohamed’s story were
to be believed, that means he is currently living in poverty in Egypt while that
country is experiencing substantial turmoil. There is no evidence that Mohamed
would have access to the resources [that] A.M.A. needs.” In addition, Amanda
credibly testified Mohamed was abusive to her during her pregnancy with A.M.A.
Given this array of facts, we conclude it was in A.M.A.’s best interests for
Amanda to be granted sole legal custody.
16
B. Visitation
After awarding physical care of the child to one parent, the district court is
required by statute to allow the other parent visitation that assures the child “the
opportunity for the maximum continuing physical and emotional contact with both
parents.” Id. § 598.41(1)(a); see also Gensley, 777 N.W.2d at 717. The district
court determined Mohamed “should have reasonable rights of visitation” and
required Amanda to “permit reasonable visitation between Mohamed and his
child.” But the decree allowed Amanda “to insist on necessary safeguards for the
health, safety, and welfare of A.M.A. during visitations.”
On appeal, Mohamed complains the decree was not specific enough
about the time and place of visitation and placed too much discretion with
Amanda. He also contends the decree should provide for the sharing of
transportation costs.
We agree with Mohamed on one point—the decree could be more specific
in regard to visitation. Accordingly, we modify the decree to incorporate the
following directives, some of which were imposed by the order on temporary
matters. If Mohamed wishes to begin exercising visitation, he shall direct his
attorney to contact Amanda one month in advance to schedule a reasonable time
for visitation with A.M.A. in Iowa. Any scheduled visits shall last no longer than
four hours and shall occur no more frequently than twice per week. The visitation
will need to be supervised by a person or agency approved by Amanda.5 The
5
Other jurisdictions have approved supervised visitation where the non-custodial parent
is a citizen of a country that is not a signatory to the Hague Convention and poses a risk
of abduction. See, e.g., Lee v. Lee, 49 So. 3d 211, 215 (Ala. Civ. App. 2010); Shady v.
Shady, 858 N.E.2d 128, 143 (Ind. Ct. App. 2006).
17
cost of the supervision for the visitation shall be paid in advance by Mohamed.
Only Mohamed shall be permitted to participate in the visitation with A.M.A. We
decline Mohamed’s request that any transportation costs be shared by the
parties.
C. Child Support
The district court ordered Mohamed to pay child support for A.M.A. The
court considered Mohamed’s education and training as a computer network
architect and his experience working in that field in Egypt, Dubai, and the United
States. The court found it reasonable to impute Mohamed’s income at the
minimum wage in American dollars based on a forty-hour work week, “[e]ven with
the exchange rates and differences in wage rates.” Accordingly, the court set
Mohamed’s child support obligation at $114 per month, starting in September
2016 and continuing until A.M.A. turns eighteen or finishes high school,
whichever occurs last. The court also contemplated Amanda might obtain more
reliable information about Mohamed’s current income, stating “that fact shall be
considered a material change of circumstances justifying a recomputation of child
support.”
On appeal, Mohamed argues the district court must calculate his child
support based on his actual income, allegedly the equivalent of $153.80 per
month, “unless the court makes express findings” under Iowa Court Rule 9.11(4)
“that using his actual income creates an injustice for either party or the child.”
While it is true the district court did not make an explicit written
determination that using Mohamed’s actual income would create an injustice for
Amanda or A.M.A., that finding is implicit in the decree. Moreover, we may make
18
such a finding upon our de novo review of the record. See, e.g., In re Marriage
of Lindemier, No. 14-1321, 2015 WL 2089702, at *6 (Iowa Ct. App. May 6, 2015).
Deferring to the district court’s finding that Mohamed was not credible in
disclosing his earnings, we conclude it would impose a substantial injustice upon
A.M.A. to use Mohamed’s highly questionable, alleged actual income. Like the
district court, we look to Mohamed’s education and work history to determine that
he is capable of earning the minimum wage in American dollars to support his
son. We decline to modify the child support ordered in the decree.
V. Property Awards and Spousal Support
A. California Real Estate
Iowa law requires courts to divide marital property “equitably between the
parties,” considering several factors. See Iowa Code § 598.21(5); In re Marriage
of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005) (confirming equitable does not
always mean equal).
Here, the decree awarded Amanda “all right, title and interest to any dowry
or similar payment made or owing by Mohamed.” The decree also addressed
the house purchased by Mohamed in California and the related bank account
used for mortgage or escrow payments; the district court observed:
It is uncertain whether Amanda has a community property interest
in the real estate owned in California. The Court FINDS that the
only fair, equitable and feasible division of assets is to award all
right, title and interest which Mohamed or Amanda or the two of
them jointly may have in the California home and related bank
account to Amanda to be hers solely.
Mohamed argues this property division was inequitable and he should
receive the California property. Following on the heels of his deceptive testimony
19
at trial, Mohamed offers the following cagey appellate argument to show his
entitlement to the real estate:
[Mohamed] purchased the property in 2014, nearly three years after
Amanda separated from him by leaving Egypt. She did not
participate in the purchase, nor provide any money for it, and found
out about it nearly by accident. If there was any equity in the
property, Mohamed used his own funds, years after the parties’
separation, to purchase it.
Mohamed gains nothing by exploiting his own failure to come forward with
accurate information about his assets. As the district court indicated, its ruling on
the property issue was “based in large measure on [Mohamed’s] lack of
credibility.” Our court upheld a similar decision in In re Marriage of Hanson,
reasoning:
One of the parties is totally incredible and appears to be lying in
order to secret assets from the court and the opposing party.
Without the gift of divination, it is impossible for the trial court to
accurately divide the parties’ property in an equitable manner.
Since it is apparent it was Kenneth’s machinations and
deviousness which created the very problem he complains of, he
may not now assert the trial court’s ruling is inequitable.
475 N.W.2d 660, 663 (Iowa Ct. App. 1991).
To the extent that the parties’ evidence allowed, the district court
considered the factors listed in Iowa Code section 598.21(5) in dividing the
parties’ marital property. Mohamed provides us with no authority in support of
his request to modify the property award. We are not persuaded it was
inequitable to award the California real estate and bank account to Amanda.
20
B. Place-Holder Alimony Amount
Finally, Mohamed objects to the spousal-support provision in the decree.
The district court ordered Mohamed to pay “$1 per year in traditional spousal
support to Amanda until she dies, remarries or reaches the age of sixty-five.”
The court found Amanda was “in need of spousal support” but reasoned it could
not “determine Mohamed’s actual earnings.” The court set out: “As with the child
support order, if Amanda obtains information concerning Mohamed’s actual
earnings, that fact shall be a material change of circumstances justifying a
modification in the amount of spousal support.”
We conclude the spousal-support award was justified under the
circumstances. See In re Marriage of Horstmann, 263 N.W.2d 885, 892 (Iowa
1978) (upholding token award of alimony where payor-spouse would have
opportunity to seek limitations on the award if payee-spouse later sought
modification).
VI. Appellate Attorney Fees
Mohamed seeks an award of appellate attorney fees in the amount of
$18,000. Such an award is a matter of discretion with our court. See In re
Marriage of Witherly, 867 N.W.2d 856, 861 (Iowa Ct. App. 2015). Mohamed’s
request is based on the same assertions he advanced at trial that were found to
be incredible by the district court. Moreover, Mohamed generally was
unsuccessful on this appeal. Accordingly, we decline to award him appellate
attorney fees. Costs of the appeal are assessed to Mohamed.
AFFIRMED AS MODIFIED.