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In re Marriage of EL Krim

Court of Appeals of Iowa

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.

          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 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 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). 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 "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 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 ...

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