Paten A. Proesch v. Gilbert J. Eggers

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.
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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
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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.