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Proesch v. Eggers

Court of Appeals of Iowa

July 24, 2019

PATEN A. PROESCH, Plaintiff-Appellee,
v.
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.

          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 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 ...


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