PATEN A. PROESCH, Plaintiff-Appellee,
GILBERT J. EGGERS, Defendant-Appellant.
from the Iowa District Court for Linn County, Sean W.
Eggers appeals from a district court order awarding physical
care of his child to the child's mother, Paten Proesch.
AFFIRMED AND REMANDED.
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.
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.
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.
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.
Standard of Review.
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).
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