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Cook v. Noriega

Court of Appeals of Iowa

September 27, 2017

CAMERON COOK, Petitioner-Appellant/Cross-Appellee,
v.
TUYET NORIEGA, Respondent-Appellee/Cross-Appellant.

         Appeal from the Iowa District Court for Butler County, DeDra Schroeder, Judge.

         Cameron Cook appeals and Tuyet Noriega cross-appeals the child custody, visitation, and support provisions of the decree establishing paternity, custody, visitation, and support.

          Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.

          Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin, L.L.P., Boone, for appellee.

          Heard by Potterfield, P.J., Mahan, S.J., [*] and Scott, S.J. *

          MAHAN, Senior Judge.

         A father appeals and a mother cross-appeals from the child custody, visitation, and support provisions of the decree establishing paternity, custody, visitation, and support of the parties' two children.

         We affirm the placement of the children in the parties' joint legal custody and in the mother's physical care. We modify the decree to provide the mother with the right of first refusal to provide for the children's care when the father's National Guard duties require his absence during his parenting time.

         I. Background

         Facts and Proceedings.

         Cameron Cook and Tuyet Noriega began a relationship in 2010. Their child, A.C., was born in 2011. Although their personal relationship deteriorated, Cook and Noriega continued to live together, parent A.C. together, and share expenses.

         In 2015, Cook was a police officer for the city of Waterloo, earning about $53, 000; he was also a part-time officer for Aplington making an hourly wage;[1] a volunteer firefighter, for which he is paid $100 per year; and a member of the National Guard, for which he earned an additional $11, 400 per year for his service. Noriega was employed at Ellsworth Community College earning about $44, 000 per year.[2]

         On June 29, 2015, Cook filed a petition to establish paternity, custody, placement, and visitation of A.C. He sought shared physical care of the child. On July 6, 2015, Noriega informed Cook she was pregnant with their second child.[3] Cook did not take the news well and an argument ensued. Noriega and A.C. left the house and went to the home of Noriega's co-worker. Both Noriega and Cook filed complaints with local law enforcement about the incident.

         On September 9, 2015, the district court entered an order on temporary matters pertaining to A.C.-the child was to remain in Noriega's physical care; Cook was to pay $671 per month in support beginning September 15; and Cook would have visitation every Tuesday and Thursday evening from 5:00 p.m. to 8:00 p.m., and every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m.

         Noriega gave birth to a child, C.N., prematurely in January 2016. Cook did not want his name on the birth certificate without proof of his paternity.[4]Noriega filed an application for temporary support for the child, which Cook resisted.

         Noriega suffered medical complications just after being discharged from the hospital and was transported by life-flight to Iowa City, where she remained for two weeks with C.N. Cook cared for A.C. for the two weeks Noriega was in Iowa City. Upon Noriega's release from the hospital, and though she had not seen A.C. for two weeks, Cook refused to allow her to see A.C. until his scheduled visitation time was up.

         On February 12, 2016, a DNA test report indicated Cook was C.N.'s father. On February 18, Cook amended his paternity petition to request joint physical care of C.N. as well.

         The paternity action was tried on March 23 and July 18, 2016. At the time of trial, Cook lived in Aplington and worked for the City of Waterloo forty hours per week at $25.35 per hour. He also worked part-time for the City of Aplington for $13.00 per hour plus $2.00 per hour for on-call pay, and continued to serve in the National Guard.

         Noriega lived and worked in Iowa Falls, approximately twenty-five miles and about a one-half hour drive from Aplington. Noriega worked with students at Ellsworth College, making $33, 518 annually. She provided health insurance for the children, paying $77.08 per month. She stated she had day care expenses of $150 per week.

         Cook testified he and Noriega were both active in A.C.'s care. He complained that Noriega did not encourage his relationship with C.N. and that Noriega did not allow him to take and care for the infant while Noriega was hospitalized. At the time of trial, Cook testified he wanted A.C. to attend school in Ackley because it was half way between Aplington and Iowa Falls. He requested joint physical care of the children, or in the alternative, that physical care of both children be placed with him.

         When asked about not letting Cook take C.N. while she was hospitalized, Noriega observed Cook was denying he was C.N.'s father and noted the infant went with her to the hospital in Iowa City to promote her breast-feeding efforts. She also stated Cook was invited to visit the infant in her home, but she did not allow Cook to take the child away from her presence because it interfered with the child's hourly breastfeeding. Noriega testified that historically she provided the majority of care for A.C. She stated that after their separation and pursuant to an April 2016 temporary order, Cook had parenting time with A.C. every Tuesday and Thursday from 5:00 to 8:00 p.m. and alternating weekends from Friday to Sunday. Noriega explained that once Cook's paternity was established, visits between Cook and the baby had transitioned to Cook having the infant in his care for longer periods as C.N. got older, and he had recently kept C.N. overnight on a Friday he had A.C. in his care, and also during the days on his Saturdays and Sundays. Noriega testified Cook had helped financially with A.C. until July 2015, and then did not pay anything until ordered to by the September temporary order, and Cook had refused to pay any support for C.N.

         Noriega testified she did not think joint physical care would work because she and Cook had difficulty communicating without conflict; most of their communications were by text message; Cook and she did not agree on where A.C. would go to school and where the children should get medical care; there were disagreements about extracurricular activities and who would pay for them; there had been instances of Cook using force against her; and his family did not support her. Noriega expressed that she wanted A.C. ...


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