Opinion
No. 5-797 / 05-0329
Filed November 23, 2005
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Gera Lynn Hutchinson appeals from the decree dissolving her marriage to Adam Hutchinson. AFFIRMED.
Ronald L. Wheeler, Des Moines, for appellant.
Adam Hutchinson, Des Moines, pro se.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
In January 2004 Gera Lynn Hutchinson filed a petition seeking dissolution of her marriage to Adam Hutchinson and requesting physical care of their two minor children. A June 2004 "Order Setting Trial" noted the parties expected to litigate both custody and physical care issues. However, a subsequent December 2004 "Order Setting Trial" disclaimed that these issues remained in dispute. Trial was held in January of 2005. The court later entered a decree which dissolved the marriage, ordered joint legal custody, and allocated to Adam the children's physical care.
Gera Lynn claims on appeal that because she understood child custody would not be litigated at trial, she did not adequately prepare to present those issues. Gera Lynn claims she had no notice that child custody issues would be adjudicated, and consequently she contends she was denied due process of law.
First, 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. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) ("issues must be presented to and passed upon by the district court"). Here, Gera Lynn never presented a due process claim to the district court, nor did the court address or rule on such a due process claim. Furthermore, when a district court fails to rule on an issue, the party must file a motion requesting a ruling in order to preserve error for appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). No such post-ruling motion was made here. We conclude Gera Lynn failed to preserve error for our review.
A few brief references to the record will clarify why we believe it is most appropriate to resolve this appeal on the error preservation ground. At least twice during Gera Lynn's testimony she requested the children's physical care be granted to her. The uncontroverted record discloses that Adam did not stipulate to Gera Lynn's custodial request. He testified of his plans to provide care for the children should the court grant him their physical care.
The district court also clearly understood the parties were litigating the physical care issue. Following the presentation of evidence, counsel were requested to prepare and submit alternative child support calculations — one based on the assumption that Gera Lynn would serve as physical care provider and the other assuming Adam would serve in that role. Gera Lynn notably did not object to this request on the ground that the custody issue was not before the court for decision. As noted above, Gera Lynn also failed to raise her due process argument in the district court. Accordingly, we affirm the dissolution decree allocating to Adam the physical care of the children.