Shady v. Shady

• Decision Date: 11 December 2006
• Docket Number: No. 53A01-0605-CV-222.,53A01-0605-CV-222.
• Citation: 858 N.E.2d 128
• Parties: Samer M. SHADY, Appellant-Respondent, v. Sheanin SHADY, Appellee-Petitioner.
• Court: Indiana Appellate Court

858 N.E.2d 128

Samer M. SHADY, Appellant-Respondent, v. Sheanin SHADY, Appellee-Petitioner.

No. 53A01-0605-CV-222.

Court of Appeals of Indiana.

December 11, 2006.

COPYRIGHT MATERIAL OMITTED

Karen A. Wyle, Bloomington, IN, Attorney for Appellant.

Karl L. Mulvaney, Nana Quay-Smith, Kelly R. Eskew, Bingham McHale, LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

On April 4, 2006, the trial court dissolved the marriage of Samer M. Shady (Samer) and Sheanin F. Shady (Sheanin),¹ awarded Sheanin physical and legal custody of A.S., awarded Samer supervised parenting time of A.S., and ordered Samer to pay $47 per week for child support. Samer now appeals, and presents the following restated issues for review:

(1) Did the trial court abuse its discretion by admitting certain evidence, qualifying Sheanin's witness as an expert, or relying upon Sheanin's expert's conclusions?

(2) Did the trial court abuse its discretion by failing to consider certain statutory factors?

(3) Were the trial court's findings and conclusions clearly erroneous?

(4) Did the trial court manifestly abuse its discretion in its parenting time order?

We affirm.

The issues presented are fact sensitive and, therefore, we will provide a detailed recitation of the facts viewed in a light most favorable to the ruling. Samer was born in Egypt on January 3, 1970, as an Egyptian citizen.² Sheanin is an American citizen. In 1994, Sheanin traveled to Egypt in order to study at The American University in Cairo. While in Egypt, Sheanin met Samer. Samer's father died in Egypt in July 1994. Shortly thereafter Sheanin and Samer married in a civil ceremony in Cairo, Egypt on October 9, 1994, and married in an Islamic ceremony a short time later. Following their marriage, Sheanin and Samer remained in Egypt until sometime in 1995, at which point they moved to Bloomington, Indiana. Sheanin and Samer lived with Sheanin's parents in Bloomington for the duration of their marriage.

Samer became a naturalized U.S. citizen on July 27, 2000. On January 28, 2001, A.S., Sheanin and Samer's only child, was born. On October 31, 2003, Sheanin filed a petition for dissolution of the marriage. Also in October 2003, Samer's brother moved from Egypt to Quincy, Massachusetts. On June 18, 2004, Sheanin filed a motion for an emergency order prohibiting Samer from adding A.S. to his Egyptian passport and removing A.S. from Monroe County, Indiana. Sheanin filed the motion because "[a]fter [Samer] was [n]aturalized he mentioned a number of times bringing [A.S.] overseas. . . ." Transcript at 99. Further, Sheanin enrolled A.S. in the U.S. Department of State's passport watch program. Sheanin took these measures because she was concerned that if Samer took A.S. to Egypt, he would not allow A.S. to return to the U.S. On June 29, the trial court issued an order that prohibited Samer from both adding A.S. to his Egyptian passport and removing A.S. from Monroe County.

On September 27, 2004, the trial court issued an order directing Richard Lawlor, Ph.D., to conduct a custody evaluation. Dr. Lawlor submitted his evaluation on November 19, 2004, which revealed the following: Dr. Lawlor met with Sheanin, Samer, A.S., Sheanin's parents, Larry and Hilda McConnaughy, and Sheanin's brother, Sheahan McConnaughy, on October 4, 2004. Dr. Lawlor interviewed Sheanin and Samer individually, Sheanin and A.S. together and Samer and A.S. together, and Larry, Hilda, and Sheahan. Dr. Lawlor administered the Minnesota Multiphasic Personality Inventory-2 (the MMPI-2) test to both Sheanin and Samer.³ The MMPI-2 test results indicated, in relevant part, that:

Sheanin ha[d] two scales, Scales 1 and 2, out of normal range. [Dr. Lawlor did] not think this reflect[ed] any psychiatric diagnosis, but rather significant personality traits.

A 12/21 code type (two highest scales) is a pattern on the [MMPI-2] typically found in individuals who are anxious, tense and nervous. They tend to be high strung and to worry about many things. . . . They are . . . also suspicious and untrusting. They . . . harbor hostility toward people who are perceived as not offering enough attention or support. Sheanin [ ] present[ed] as below average in ability to deal with stress and frustration.... She also ha[d] a high average sense of social responsibility.

The psychological testing on Sam[er] . . . present[ed] [that] . . . he [ ] seem[ed] to be a person with a low sense of self-esteem or self-concept. He ha[d] all scales within normal range but one scale, Scale 6, approaching significance. His highest scale[s] [were] Scale 6 and Scales 4. . . .

People with profiles where Scales 4 and 6 are the two highest scales tend to be immature, narcissistic, and self[-]indulgent individuals. . . . They resent demands made of them. . . . Repressed hostility and anger are characteristics of people with this code type and they are often irritable, argumentative, and are described as "generally obnoxious." They resent authority. People with this pattern deny serious psychological problems and they rationalize and transfer blame for problems onto others. They do not accept responsibility for their own behaviors. They also tend to be somewhat unrealistic and grandiose in their self-appraisals. If a psychiatric diagnosis is warranted it is usually that of passive-aggressive personality disorder. . . . [W]ithin the context of custody or visitation disputes[,] . . . when the elevations are highest on these two scales there are typically problems of pride, willfulness, unreleased resentments and jealousy. Because of that there is potential for problems in the area of temper control as well as [] attempting to control others with threats of losing one[']s temper. Individuals with this pattern have an inability to forgive and forget and because of that are described often as trapped in the past. Insults to the person's public role, and hurts that have been inflicted, must be atoned for and compensated for. Even fairly normal range elevations on Scale 6 are problematic. They tend to denote rigidity or fixity of one's judgments. This often entails developing over-identifying alliances with a child or children but being severe when high parental standards and expectations are not met.

Sam[er] present[ed] as far below average in his ability to deal with stress and frustration and he tend[ed] to over[-]control hostility to an extreme degree. This pattern is consistent with the likelihood of passive-aggressive behaviors . . . .

SUMMARY AND CONCLUSIONS: . . . Sam[er] made the interesting observation . . . of him not being [the kind of person] who [would] abduct[] children and go[] back to [another] country after a divorce. . . . However, . . . [Dr. Lawlor thought] that [Samer] ha[d][the] potential for being th[at] type of person . . . .

[A.S.] has an excellent relationship with both parents and . . . it is important that she have as much contact as is possible with Sam[er]. However, . . . whatever safeguards are recommended by the State Department, as well as by experts in this particular area of International Law, need to be put in place before [A.S.] is allowed to visit with her father outside of Monroe County. . . . [T]hese restrictions should stay in place at least until [A.S.] is old enough to understand what might be going on and would be able to resist on her own should there ever be an attempt to take her outside of the United States without the awareness of [Sheanin].

Appellant's Appendix at 49-51 (emphases in original). Dr. Lawlor also noted there were no allegations of serious domestic violence.

On December 13, 2004, Sheanin filed a "Motion for Order of Supervised Visitation and Notice of Engagement of Expert Witness in Risk Assessments in International Custody-Visitation Cases." Id. at 52. In this motion, citing Dr. Lawlor's evaluation, Sheanin renewed her request that the trial court limit Samer's access to A.S. to supervised visitations because of her ongoing fear that Samer would abduct A.S. and abscond to Egypt. Sheanin also notified the trial court that she retained Maureen Dabbagh, a purported expert in the field of international parental child abduction. The trial court, over Samer's objection, granted Sheanin's motion and ordered Samer's visitations with A.S. to be supervised pending a final dissolution decree and parenting-time order.

On August 18, 2005, the trial court conducted a hearing in order to determine whether Dabbagh was an expert. Dabbagh's formal, post-secondary education consists of "two (2) years of [c]ommunity [c]ollege in the nursing field." Transcript at 24. Dabbagh has worked in international child abduction since 1994. During that time, she has worked with Interpol, the U.S. F.B.I., the U.S. Department of State's Office of Children's Issues, the U.S. Department of State's Diplomatic Security, various U.S. embassies and agencies, and the U.S. Department of Justice. Dabbagh has "also given presentations in the United Nations and Geneva upon invitation. [She has been] [p]art of panels and [C]ongressional testimony in Washington. [She was also] [a]sked to participate in ABA funded research on this topic." Id. at 25. Further, Dabbagh

yearly . . . attend[s] continuing education both [in the U.S.] and abroad on a wide variety of issues from changes in international law to psychiatr[y] or . . . alienation issues. [She] just finished up one [continuing education course in] DNA forensics. . . . It's like ten (10) years of this and it's the only way you can get a formal education that's documented in th[e] field [of international child abduction].

Id. at 24. The training Dabbagh has received, however, "has solely been in regard to international child abduction recovery." Id. at 39

Dabbagh has been involved in over 400 cases of international child abduction. She is the founder and president of "P.A.R.E.N.T.," an "international parent advocacy group. . . . [It is] the first and largest...