                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0815
                            Filed November 26, 2014

Upon the Petition of
JOHN BURDETTE MEYER,
      Petitioner-Appellee,

And Concerning
JESSICA RENEE LEFRANCES SOULES,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Mitchell E.

Turner, Judge.



      A mother appeals the district court’s physical care decision. AFFIRMED.



      James T. Peters, Independence, for appellant.

      Joseph G. Bertroche Jr. of Bertroche Law Office, Cedar Rapids, and

Randy E. Trca, Iowa City, for appellee.



      Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                           2



MULLINS, J.

       Jessica Soules appeals the district court’s decision granting John Meyer

physical care of their daughter. Jessica claims the district court erred by failing to

require John to satisfy the higher burden applicable in custody modification

actions before placing the child in John’s care. She also claims placing the child

in John’s care is not in the child’s best interest. After reviewing the briefs and the

record in this case, we affirm the decision of the district court.

I. Background Facts and Proceedings.

       A daughter was born to Jessica and John in 2003. The parties never

married but lived together for approximately a year after the child was born. In

the fall of 2004, the parties separated, and John moved to a neighboring town.

Both parties worked full time and shared physical care of the child with John

caring for her after work until the next morning when he would return the child to

Jessica’s care. The parties alternated caring for the child on weekends. This

care arrangement continued until 2006 when John went back to school at the

University of Iowa and moved to Iowa City. John voluntarily paid Jessica child

support, and a support order was subsequently entered. However, this order did

not address custody or care.

       Jessica, along with the child, moved in with Nick Soules in 2008, and

Jessica and Nick were married in 2009. Jessica and Nick separated in 2011 and

divorced in 2012. John married Suyapa Yaneth Manueles Ventura (Janet) in

2008, and they have two children, ages five and two at the time of the trial in

this case.
                                            3



        John enlisted in the military to assist in paying for school and in 2010 was

deployed to Afghanistan for a year.         While he was deployed, Jessica was

arrested and convicted of second offense operating while intoxicated.1 The child

was in the vehicle with her at the time, and Jessica received a deferred judgment

on a child endangerment charge as a result. Jessica was found to have failed to

provide proper supervision for the child after a department of human services

(DHS) investigation, and Jessica was placed on the child abuse registry.

        After returning from his deployment, John filed a petition to establish

custody, care, visitation, and support. During the pendency of the case, the

parties filed, and the court approved, a temporary joint stipulation, placing the

child in Jessica’s care subject to John’s weekend visitation. The case proceeded

to trial in April 2014. The district court granted the parties joint legal custody and

placed the child in John’s physical care “after considering the conduct of the

parties, their past decisions, their stability, and their likelihood to promote [the

child’s] relationship with both parents.”

        Jessica now appeals, asserting the court should have required John to

satisfy the higher burden applicable in child custody modification actions rather

than the lower burden applicable in initial custody determinations.         She also

claims the child’s best interests require that the child be placed in her physical

care.




1
  Jessica had an operating while intoxicated conviction in 2008, though the child in
question was staying with John at that time.
                                          4



II. Scope and Standard of Review.

        We review custody decisions de novo as they are heard in equity, but we

give weight to the district court’s factual findings. McKee v. Dicus, 785 N.W.2d

733, 736 (Iowa Ct. App. 2010). Our overarching consideration is the best interest

of the child. Id.

III. Physical Care.

        Jessica asserts on appeal the district court should have applied the higher

burden of proof applicable to custody modification actions.2         John contends

Jessica failed to preserve error on this claim as she did not ask the district court

to apply the modification burden of proof and she did not file a posttrial motion

seeking the district court to rule on what burden of proof was applicable to this

case.

        It is a fundamental doctrine of appellate review that issues must
        ordinarily be both raised and decided by the district court before we
        will decide them on appeal. When a district court fails to rule on an
        issue properly raised by a party, the party who raised the issue
        must file a motion requesting a ruling in order to preserve error for
        appeal.

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We have reviewed the

record and the district court decision and neither the parties nor the district court




2
  In modification actions, the party seeking to change the custodial arrangements must
prove “there has been a substantial change in circumstances since the time of the
decree not contemplated by the court when the decree was entered, which is more or
less permanent and relates to the welfare of the child.” In re Marriage of Malloy, 687
N.W.2d 110, 113 (Iowa Ct. App. 2004). The party must also show the ability to offer
superior care. Id.
                                             5



addressed the issue of whether the modification burden of proof is applicable to

this case. As a result, we find the issue not preserved.3

       Next, Jessica claims it is not in the child’s best interests to be placed in

John’s physical care. She notes the child has attended and thrived in the same

school district most of her life, receiving high marks and participating in

extracurricular activities. She claims a change in the child’s school and home life

would result in trauma and uncertainty. She claims John’s presence in the child’s

life has been sporadic and that she has been the stabilizing influence. Jessica

also points to the proximity of her extended family.            She acknowledges the

court’s concern about her denying John visitation for arbitrary reasons during the

pendency of this case but claims this was due to the stress of the litigation.

       In determining placement with John was in the child’s best interest, the

district court was concerned about the visitation conflicts caused by Jessica and

determined Jessica’s actions spoke poorly of her ability to promote John’s

relationship with the child. The court also determined Jessica inappropriately

involved the child in the details of the custody proceeding, which demonstrated

Jessica’s inability to put the child’s interests before her own.           There was no

evidence to support Jessica’s claim that placing the child with John would have

any lasting detrimental effects.



3
  While we find the issue has not been preserved in this case, it should be noted we
have previously addressed the issue of what burden of proof is applicable where there
has been no previous court decree of custody or care, but the parties have a long
standing custodial arrangement. See McKee, 785 N.W.2d at 736–37. We “consider the
previous pattern of caregiving [as] an important factor,” but the correct burden of proof is
that applicable to initial custody determinations. Id. The district court in this case
applied the correct burden of proof.
                                           6



       The district court was also concerned not only with Jessica operating a

vehicle significantly under the influence of alcohol with the child in the car, but

also with Jessica being in an intoxicated state when John’s parents attempted to

drop off the child to her at the end of their visitation while John was deployed.

Jessica underwent a substance abuse evaluation, which did not recommend any

treatment, but the court found the evaluator was not given accurate information

regarding the extent of Jessica’s alcohol use. Jessica refused to provide the

DHS investigator with a breath test when requested, and she demanded John

provide her with alcohol in order to exercise his visitation. The district court

found Jessica’s testimony that she does not have an alcohol problem to be

“utterly not credible.” We give deference to the district court’s credibility findings.

McKee, 785 N.W.2d at 736 (“[W]e give weight to the factual findings of the district

court, especially when considering the credibility of witnesses.”).

       Based on our de novo review of the record and briefs, we find placing the

child in John’s physical care to be in the child’s best interests in this case. We

therefore affirm the decision of the district court.

       AFFIRMED.
