                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2071
                              Filed July 24, 2019


PATEN A. PROESCH,
    Plaintiff-Appellee,

vs.

GILBERT J. EGGERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.




      Gilbert Eggers appeals from a district court order awarding physical care of

his child to the child’s mother, Paten Proesch. AFFIRMED AND REMANDED.




      Joshua J. Reicks and Trista M. Beise of Schoenthaler, Bartelt, Kahler &

Reicks, Maquoketa, for appellant.

      Jeremiah D. Junker and Sherry L. Schulte of Bradley & Riley PC, Cedar

Rapids, for appellee.



      Considered by Potterfield, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

        In June 2017, Paten Proesch petitioned for custody, visitation and child

support. Paten and Gilbert Eggers agreed to joint legal custody of their child and

other issues but could not agree whether the child should be placed in Paten’s or

Gilbert’s physical care.

        The matter was tried in October 2018. The district court entered a thorough

and well-reasoned order finding Paten should have physical care of the child.

Although the court believed both parents would be suitable caregivers for the child,

it found and concluded “Paten is the more appropriate party to be directed to

provide primary physical care for the child” under the unique circumstances of the

case.

        Gilbert appeals the ruling, asserting the district court’s order “was not based

on objective facts but on favoring of Paten as primary care giver.”           He also

maintains the order’s provision requiring the parties to not “speak disparagingly of

the other” violates his First Amendment right to free speech and is therefore

unenforceable. Paten contends, among other things, that Gilbert failed to preserve

his claims for appellate review. Both parties request appellate attorney fees.

        I. Standard of Review.

        Our review on appeal is de novo, which requires that we “make our own

findings of fact.” Iowa R. App. P. 6.907; In re Marriage of Hoffman, 867 N.W.2d

26, 32 (Iowa 2015); Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005). Yet we

recognize that the district court could listen to and observe the parties and

witnesses. See In re Marriage of Zebecki, 389 N.W.2d 396, 398 (Iowa 1986).

Although we are not bound by the factual findings of the district court, we give them
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weight, especially when considering the credibility of witnesses. See Iowa R. App.

P. 6.904(3)(g). Our overriding consideration is the best interests of the child. See

Iowa R. App. P. 6.904(3)(o); In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa

2007).

         II. Discussion.

         A. Error Preservation.

         “Error preservation is a fundamental principle of law with roots that extend

to the basic constitutional function of appellate courts.” State v. Harrington, 893

N.W.2d 36, 42 (Iowa 2017). The doctrine is based on fairness; a trial court should

not be faulted for failing to rule correctly on an issue it was never given the

opportunity to consider. See State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015).

Moreover, “it is unfair to allow a party to choose to remain silent in the trial court in

the face of error, taking a chance on a favorable outcome, and subsequently assert

error on appeal if the outcome in the trial court is unfavorable.” See id. Thus,

requiring error to be preserved both allows the trial “court to correct error without

the necessity of an appeal” and “serves to create a record for appellate review.”

Harrington, 893 N.W.2d at 42. These rules “ensure that the opposing party and

the district court are alerted to an issue at a time when corrective action can be

taken or another alternative pursued.” Top of Iowa Co-op. v. Sime Farms, Inc.,

608 N.W.2d 454, 470 (Iowa 2000). “[B]y avoiding proceedings that would have

been rendered unnecessary had an earlier ruling on the issue been made,”

precious judicial resources are conserved. Id.

         So to preserve an alleged error for appellate review, the “issue must be both

raised and decided by the district court.” In re Det. of Anderson, 895 N.W.2d 131,
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138 (Iowa 2017). This includes issues that implicate constitutional rights. See Taft

v. Iowa Dist. Ct. ex rel. Linn Cty., 828 N.W.2d 309, 322 (Iowa 2013). If the “district

court fails to rule on an issue properly raised by a party, the party who raised the

issue must file a motion [pursuant to Iowa Rule of Civil Procedure 1.904(2)]

requesting a ruling in order to preserve error for appeal.” Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002); see also Taft, 828 N.W.2d at 323. “[M]aking only

general reference to a constitutional provision in the district court and then seeking

to develop the argument on appeal” is not enough. Taft, 828 N.W.2d at 322-23.

       In his appellate brief, Gilbert stated he preserved his appellate claims by

“timely filing a Notice of Appeal.” But the mere filing of a notice of appeal neither

allows a trial court to correct an error nor produces any record of the error for

review. We have stated time and time again, the filing of a notice of appeal does

not preserve error for our review.1            See Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa:            Perspectives on

Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (explaining that “[a]s a

general rule, the error preservation rules require a party to raise an issue in the

trial court and obtain a ruling from the trial court”).        We need not address

unpreserved claims.

       The physical care issue was preserved for our review because it was ruled

on and decided by the district court, but Gilbert’s constitutional claim was not

preserved for lack of a 1.904(2) motion and we do not address it.




1
 We have restated this principle nearly fifty times since reiterating it in our published
opinion of State v. Lange, 831 N.W.2d 844, 846-47 (Iowa Ct. App. 2013).
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       B. Physical Care.

       “Iowa Code chapter 600B [(2017)] confers subject matter jurisdiction upon

the district court to decide cases of paternity, custody, visitation and support

between unmarried parties.” Montgomery v. Wells, 708 N.W.2d 704, 707 (Iowa

Ct. App. 2005). Relevant here, “section 600B.40 grants the district court authority

to determine matters of custody and visitation as it would under Iowa Code section

598.41”—section 600B.40’s counterpart for divorcing or separating parents. See

id.; see also Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 891 n.3 (Iowa 2009).

       “Physical care” is “the right and responsibility to maintain a home for the

minor child and provide for routine care of the child.” Iowa Code § 598.1(8). In

determining whether to award joint physical care or physical care with one parent,

the district court is guided by the factors enumerated in section 598.41(3), as well

as other nonexclusive factors enumerated in In re Marriage of Winter, 233 N.W.2d

165, 166-67 (Iowa 1974), and In re Marriage of Hansen, 733 N.W.2d 683, 696-99

(Iowa 2007) (holding that although section 598.41(3) does not directly apply to

physical care decisions, “the factors listed [in this code section] as well as other

facts and circumstances are relevant in determining whether joint physical care is

in the best interest of the child”). Although we give consideration in any custody

dispute to allowing the child to remain with a parent who has been the primary

caretaker, see Hansen, 733 N.W.2d at 696, the fact that a parent was the primary

caretaker of the child before separation does not assure an award of physical care,

see In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). The

ultimate objective of a physical care determination is to place children in the

environment most likely to bring them to healthy physical, mental, and social
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maturity. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999); In re

Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). As each family is

unique, the decision is mainly based on the particular circumstances of each case.

See Hansen, 733 N.W.2d at 699.

       Here, the district court had the advantage of listening and observing each

witness’s demeanor firsthand. It is clear the district court’s findings turned on its

assessment of the credibility of the witnesses, or, more specifically, the court’s

determination that Paten was more credible than Gilbert. Upon our de novo review

of the record, we defer to the district court’s credibility findings and reach the same

conclusion.

       In considering the relevant factors, the district court found “the past primary

care-giving is not as substantial a factor in this matter as it might be in other

matters,” explaining:

       The child has been in the physical care of each of the parties at
       different times in her short life, including through the shared care
       arrangement agreed to by the parties since the entry of temporary
       orders. For most such periods, however, the party with physical care
       has been residing with others and has been receiving substantial
       assistance from family members in providing primary physical care
       for the child.

Gilbert maintains the court penalized him for his mother’s assistance in caring for

the child. But the court found the factor less important overall, given the outside

assistance and the changing of the physical care arrangements. The record

supports the court’s determination.

       There was a dispute in the record about whether Gilbert withheld some

parenting time from Paten, and the district court resolved the issue in favor of

Paten. Gilbert complains that it was not his responsibility to facilitate a relationship
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between Paten and the child when the child exclusively lived with him, and he

essentially argues Paten should have done more. The court found Paten was a

more credible witness on this point. Paten testified Gilbert unilaterally decided not

to return the child to Paten’s care several times. He did not first discuss it with her,

then he required his permission for her to see the child, and even then, she could

not see the child alone. The court determined Gilbert’s actions did not encourage

regular emotional support and contact by the child with Paten, and he did not

provide a credible explanation for his decision to do so. The court’s determinations

are fully supported by the record.

       Gilbert challenges some of the court’s other findings adverse to him. One

instance of import to the court was a dog bite the child acquired while in his care.

The court found no fault for the bite on Gilbert’s watch—sometimes dogs bite. But

Gilbert’s response to the bite troubled the court:

       Both Gilbert and his mother . . . testified as to what they did following
       the dog biting the child. Although their testimony was not perfectly
       consistent, they each testified that they spoke on the telephone with
       someone at the hospital in Maquoketa (roughly 3 miles from their
       home) who they understood to be a registered nurse; that they
       provided to the nurse information about the cause, nature and size
       of the injury; and that they were provided advice over the telephone
       by a person they understood to be a registered nurse. They both
       testified that the registered nurse advised them it would not be
       necessary (or even advisable) to bring the child to the hospital.
       [Gilbert’s mother] testified that the nurse indicated that the child
       would likely require a stitch or two, based upon the information
       conveyed, but that such medical care was not advised. Gilbert
       testified that the nurse told them that stitches would do more harm
       than good to the child, in scarring and emotional upset. The court
       did not find such testimony by either Gilbert or his mother to be
       credible. The court does not find it to be credible that a licensed
       medical provider given information over the telephone about a young
       child bitten in the face by a dog would advise the person calling, over
       the phone and without ability to properly assess the wound, not to
       travel three miles to the hospital. The court found to be particularly
                                          8


       incredible Gilbert’s testimony such person told them coming to the
       hospital for stiches would do more harm than good. Moreover, even
       if any such hospital employee made such statements, the court finds
       and concludes Gilbert should have exercised better judgment in
       providing care for the child.
               The photographs of the child’s wound . . . support the court’s
       conclusions both that it would not be credible for a medical provider
       to provide such opinions over the telephone about the wounds and
       also that it was an exercise of poor judgment for Gilbert and/or his
       mother to fail to take the child to the hospital only three miles away.
       From the size and location of the wounds, it should have been clear
       to Gilbert that the wounds inflicted by the dog could have resulted in
       poor medical outcomes, including possible infection, scarring or
       perhaps even eye or nerve damage. From the photographs and from
       the testimony of Gilbert and his mother, it is clear that their attention
       to the wounds included only an attempt to clean them with a
       washcloth and to place two Band-Aids on the wounds. They
       apparently simply planned to allow the wounds to try to heal on their
       own.
               Soon after the child was bitten by the dog, Gilbert
       appropriately notified Paten of the wounds prior to her coming to pick
       the child up as scheduled previously for the regular exchange of
       care. Paten testified she took the child home, examined the wounds
       and then took the child to the emergency room. At the emergency
       room treatment for the child included stitches . . . . By the next
       morning, the child’s face had visible swelling. . . .

       The court did not find Gilbert and his mother’s account of calling the hospital

to be credible. The court had a chance to hear the testimony and observe the

witnesses, and we find no reason in the record to disturb the credibility findings.

       In a case in which both parents are suitable caregivers, the physical care

determination is a tough one to make. The district court gave thorough reasons

for why it determined it is in the child’s best interests to place the child in Paten’s

physical care. Considering all of the relevant factors and the court’s credibility

findings, we agree with its determination. So we affirm the court’s order placing

physical care of the child with Paten.
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       C. Appellate Attorney Fees.

       Finally, both parties have requested an award of appellate attorney fees.

On appeal, attorney fees are not a matter of right, but rest in this court’s discretion.

See Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). An award of appellate

attorney fees depends on three factors: (1) the needs of the party making the

request, (2) the ability of the other party to pay, and (3) whether the party making

the request needed to defend the trial court’s decision on appeal. Id.

       Having affirmed the district court’s order in all respects, we deny Gilbert’s

request for appellate attorney fees. Paten is entitled to appellate attorney fees for

having to defend herself on this appeal.        We remand to the district court to

determine the amount of Paten’s appellate attorney fee award.

       III. Conclusion.

       We affirm the district court’s custody order in all respects and remand to the

district court to determine the amount of Paten’s appellate attorney fee award.

Costs on appeal are assessed to Gilbert.

       AFFIRMED AND REMANDED.
