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In re Upon Petition of Thomas

Court of Appeals of Iowa

October 11, 2017

Upon the Petition of CHARLES WILLIAM THOMAS, Petitioner-Appellee/Cross-Appellant, And Concerning TYNE WESTFALL, Respondent-Appellant/Cross-Appellee.

         Appeal from the Iowa District Court for Warren County, John D. Lloyd, Judge.

         Tyne Westfall appeals and Charles Thomas cross-appeals from the decree establishing paternity and determining custody and child support with respect to their child, D.A. AFFIRMED ON BOTH APPEALS.

          Becky S. Knutson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.

          Tara M. Elcock of Elcock Law Firm, P.L.C., Indianola, for appellee.

          Heard by Danilson, C.J., and Tabor and McDonald, JJ.

          DANILSON, CHIEF JUDGE.

         Tyne Westfall appeals and Charles Thomas cross-appeals from the decree establishing paternity and determining custody and child support with respect to their child, D.A. Westfall contends joint physical care is not in D.A.'s best interests and seeks physical care. Westfall also challenges the district court's determination that the child will have the surname "Westfall-Thomas." On cross-appeal Thomas asserts the district court erred in ordering Thomas to pay half of the medical costs for Westfall's pregnancy and D.A.'s birth and fifty-two percent of D.A.'s medical expenses thereafter, and in failing to give Thomas credit for support already paid to Westfall when calculating the past-due child support. Both parties request appellate attorney fees.

         We find the district court's determination the parties will have joint physical care and the care schedule imposed are in D.A.'s best interests and affirm. We also affirm the determination D.A. will have the surname "Westfall-Thomas" because it is in D.A.'s best interests. We conclude the district court properly ordered Thomas to pay a portion of the pregnancy and birth-related medical costs, future medical expenses, and back child support, and affirm such orders. We find neither party is entitled to appellate attorney fees.

         I. Background Facts and Proceedings.

         Westfall is thirty-one years old and works for a bank in the client services group. Westfall works Monday through Friday from 8:00 a.m. to 5:00 p.m. The district court determined Westfall's gross annual income, including her bonus, to be $60, 500. Westfall has a college degree from Simpson College in economics. After D.A. was born, Westfall moved from her home in Des Moines to Urbandale. Westfall shares her home in Urbandale with her aunt. Westfall testified she made the decision to move to Urbandale for D.A.'s benefit due to her belief it was a safer neighborhood and better school system.

         Thomas is thirty-five years old and works as a telecommunications lead technician. Thomas has a bachelor's of science in computer science and has obtained a number of professional certifications. Thomas also provides help on his parents' farm. When D.A. was born, Thomas had a job that required frequent out-of-town travel and overtime. Thomas testified he began looking for a new job so that he could be available to parent D.A. Thomas began his current job in August 2014. In his current job, Thomas works from 7:00 a.m. to 4:00 p.m. Monday through Friday and is not required to travel often. Thomas' current job provides less salary than his previous job. The court determined Thomas' gross annual income, including his farm income, to be $65, 400. Thomas lives in Indianola in a home with a house mate and longtime friend, Terry King.

         Prior to D.A.'s birth in May 2014, Westfall and Thomas were friends but not in a relationship and never lived together. When Westfall first learned she was pregnant, she informed Thomas it was likely, but not certain, he was the father. Thomas maintained contact with Westfall throughout her pregnancy and attended one doctor's appointment. Thomas was present for D.A.'s birth. In June 2014, Thomas was confirmed as D.A.'s father via DNA testing.

         For two months following D.A.'s birth, Thomas had sporadic visitation with D.A. at Westfall's home whenever his demanding work schedule would allow. After Thomas started his new job in August 2014, he began having regular visitation every Tuesday evening for about one and a half hours. Thomas maintains that he continuously asked Westfall for more time with D.A. but she refused his requests. Thomas was not afforded a traditional amount of visitation-one evening during the week and every other weekend-until after the parties engaged in mediation.[1]

         Thomas testified he initiated this action in November 2014 because Westfall continuously rebuffed his requests for additional time with D.A. Trial on this matter was held on September 10, 11, and 15, 2015. The district court entered its findings of fact, conclusions of law and orders on September 24, 2015, and its formal decree on April 26, 2016. With respect to custody, the district court held:

In this case, the court sees no way to maximize the child's contact with both parents without some type of shared care, in light of [Westfall]'s consistent resistance to [Thomas'] exercise of his parental rights with respect to the child. It is in the best interests of this child to have as much contact with both of his parents as is possible. There is no indication of any kind in this record of any risk to the child when he is with [Thomas] and it appears that the court needs ...

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