# Stewart v. Stewart

> Indiana Court of Appeals · April 20, 1988 · 521 N.E.2d 956

URL: https://www.frixlaw.com/law-library/cases/9738041

## Case

- **Full name:** Thomas R. STEWART, Appellant (Petitioner Below), v. Debra R. STEWART, Appellee (Respondent Below)
- **Court:** Indiana Court of Appeals
- **Decided:** April 20, 1988
- **Citations:** 521 N.E.2d 956; 86 A.L.R. 4th 191; 1988 Ind. App. LEXIS 344; 1988 WL 35426
- **Precedential status:** Published
- **Opinion:** Dissent by Conover
- **Judges:** Miller, Sullivan, Conover
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9738041

## How later opinions describe it (automated extraction)

- holding that trial court could not restrict noncustodial father’s visitation with his 2-year-old daughter on the sole basis that the father had AIDS, relying upon evidence that communication of virus by household contact was not a recognized method of transmission
- holding that preponderance standard applied to party seeking to terminate visitation rights in dissolution proceeding "[b]ecause the private interest at stake, although great, is not permanently terminated and the state is not the initiator of the termination"

## Opinion text

CONOVER, Judge,
dissenting.
I respectfully dissent because I do not believe the trial court has manifestly abused its discretion in this matter.
As Chief Judge Ratliff recently said
When reviewing a trial court's determination concerning visitation by a non-custodial parent we may reverse only upon a showing of a manifest abuse of the trial judge's discretion. In re Julien (1979), Ind.App., 397 N.E.2d 651 .
Such an abuse of discretion will not be found unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Our function on appeal is 'to examine the decision of the trial court and determine whether the record discloses evidence or reasonable inferences to be drawn therefrom which serve as a rational basis to support the finding of the trial court.! We will not reweigh the evidence or judge the credibility of the witnesses. *967 [Citations omitted]. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749, 755 .
Carter v. Dec (1985), Ind.App., 480 N.E.2d 564, 566 . Thus, the question becomes what is the breadth of a trial court's discretion concerning the grant or withholding of visitation rights of the non-custodial parent in this case? Our legislature has clearly defined those parameters. IND.CODE 31-1-11.5-24 provides in part
SEC. 24. (a) a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the parent might endanger the child's physical health....
(b) the court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation might endanger the child's physical health.... (Emphasis supplied).
Our legislature has determined as a matter of public policy the best interests of the child are paramount, and trial courts are to deny non-custodial parents visitation if such visitation might endanger the child's physical health.
I do not agree with the majority we are to restrict the meaning of "might" as used in the statute to mean visitation may be restricted only when it "would" endanger the child's physical well being. Such was not the intent of the legislature in my opinion. Had it so intended, that body would have used appropriate language such as "probably will", "reasonably may" or words of similar import. It is apparent to me the legislature intended "might" as used in the statute to carry its ordinary meaning which includes the "possibility" of an event occurring.
Our sole function on appeal is to determine whether the trial court's decision constituted a manifest abuse of discretion. The experts in this case testified to essentially two degrees of certainty as to methods by which the AIDS virus may be transmitted. First, it is reasonably certain the AIDS virus with which appellant Thomas is infected may be transmitted to third parties through sexual intercourse, the sharing of hypodermic needles, and blood transfusions.
Secondly, it is theoretically possible for a parent to infect a child with the AIDS virus while extracting a child's tooth 1 Under these circumstances, a parent "might" infect his child with AIDS. Because the statute clearly invests the trial court with a broad discretion in this area, I believe the trial court did not manifestly abuse its discretion by denying appellant his visitation rights under these circumstances.
We may not weigh the evidence nor determine the credibility of witnesses on appeal. While we might have decided the matter differently had we been sitting as the trial court, that reason standing alone does not authorize reversal.
In sum, I would affirm because the trial court did not manifestly abuse its discretion.
. Admittedly, a poor example upon which to 'base a hypothesis, but that was the evidence before the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9738041. Public record. Not legal advice.