Victor Daran Descartes v. Devaki Modeste

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-0347 Filed September 23, 2026 _______________ Victor Daran Descartes, Petitioner–Appellee, v. Devaki Modeste, Respondent–Appellant. _______________ Appeal from the Iowa District Court for Polk County, The Honorable Celene Gogerty, Judge. _______________ AFFIRMED AS MODIFIED _______________ Leah Patton of Patton Legal Services, LLC, Ames, attorney for appellant. Cathleen J. Siebrecht of Siebrecht Law Firm, Pleasant Hill, attorney for appellee. _______________ Considered without oral argument by Badding, P.J., Langholz, J., and Telleen, S.J. Opinion by Langholz, J. 1 LANGHOLZ, Judge. Devaki Modeste lives in New York City. Victor Descartes lives in a suburb of Des Moines. And they share a now-five-year-old son. In this case under Iowa Code chapter 600B (2023), they asked the district court to resolve their disputes about their son’s custody, physical care, and support. And after a bench trial, Modeste appeals the court’s custody-and-support order that placed their son in Descartes’s physical care. She challenges: (1) the physical-care placement; (2) her visitation schedule; (3) her obligation to pay for all the visitation travel expenses; and (4) the division of the son’s uncovered medical expenses between the parties. Both parties also request appellate attorney fees. On our de novo review, we agree with the district court that placing the son in Descartes’s physical care is in the son’s best interest. So too does the visitation schedule serve the son’s best interest. But we modify the order to require the parties to share equally the son’s travel expenses. And Modeste failed to preserve error on the district court’s division of uncovered medical expenses. We thus affirm the custody-and-support order as modified. And we decline to award appellate attorney fees to either party. I. Factual Background and Proceedings Modeste and Descartes met remotely in 2020 through one of Descartes’s relatives who was friends with Modeste. Descartes, who serves in the Army, was stationed in Germany at the time. And Modeste was living in New York City. After communicating by phone and other virtual means, they twice met in person while Descartes was visiting the United States. In late 2020, Modeste became pregnant with their son. And Descartes was able to visit in person a few times during the pregnancy. But by the time their son was born in August 2021, the parties’ romantic relationship had ended. 2  Descartes was unable to travel back from Germany for the birth. But his mother was present before and immediately after the birth to assist Modeste for about a week. And the next month, he stayed with Modeste and their son for about ten days. He cared for and bonded with their son— feeding, burping, changing, and bathing him while he was there. Aside from this visit, Modeste cared for the son alone in New York for the first few months of his life. But the parties communicated regularly. And Descartes provided much financial support from abroad. This support included regular purchases of food, baby formula, and supplies—often delivered to Modeste’s door at the last minute when Modeste would tell him that she was about to run out. Then, in late December 2021, Modeste suffered a stroke while she and the son were alone in her apartment. They were both found on the apartment floor “unconscious”—potentially up to a day or two after the stroke—and taken by ambulance to the hospital. The son was released in less than a day. But Modeste remained hospitalized for several weeks before being transferred to a nursing home for rehabilitation. Modeste’s mother came from Georgia to care for the son while Modeste was in the hospital. And Descartes came from Germany to also help care for him for about ten days. Descartes then returned to Germany, and Modeste’s mother returned to Georgia with the son. After Modeste’s release from the nursing home in February 2022, she also traveled to Georgia to live with her mother and son. Descartes communicated with them almost daily through phone and video chat. The living arrangement proved difficult, and in March, Modeste decided that she would move back to New York and their son should live with Descartes’s sister and mother in Texas. Descartes bought plane tickets for his sister to come and pick up the son and take him back to Texas. 3  About a week later, Modeste began expressing doubts about being separated from the son. And after discussions over the next few weeks, Descartes bought another plane ticket for his sister to bring the son to Modeste in New York City in mid-April. But while the son was still living in Texas, Descartes flew from Germany to again spend time with him. Upon the son’s return to her care, Modeste initially had help caring for the son from a friend who was living with her for a couple of weeks. And then, her mother hired a woman to assist caring for him during the days—in part so she could work at home and in part because of her stroke recovery. Despite the distance between Modeste and Descartes, they kept in regular contact and Modeste would continue to often ask Descartes to purchase food and supplies for the son, which he did. He also sent her money. In the summer of 2022, Modeste and their son moved out of her New York City apartment and eventually decided to return to live with her mother in Georgia. During this time living in Georgia, Modeste sometimes traveled back to New York City for job interviews and medical appointments, sometimes leaving their son with her mother. Modeste agreed to let Descartes care for their son during a nearly two-week visit to the United States, mostly in the New York area, in July. But starting a couple of days after Descartes picked him up, she began demanding that Descartes bring him back to her and threatened that she was “going to live abroad” with the son. Descartes completed the visitation as planned and after he returned the son, Modeste seemed to have calmed down, texting him as he flew back to Germany, “You are a great dad and . . . I admire you.” Modeste eventually decided to move back to New York City with their son in October. Shortly after, she began asking Descartes for help in caring for their son in messages and calls. She was also cleared by her doctor to 4 return to work in-person. Despite her requests that he try to return to the United States sooner, Descartes could not. But they ultimately agreed that the son could stay with Descartes’s sister again. So in December, Descartes paid for Modeste and their son to fly to Texas, where she dropped off the son to live with Descartes’s sister until his service in Germany was complete. Again, before long Modeste started asking for her son to be returned to her and saying that she would travel to Texas to pick him up. She did not do so. Descartes moved from Germany to Iowa in January 2023. He was stationed at Camp Dodge. And once he got settled, his sister brought the son to stay with him in mid-February. The son has been living with Descartes in Iowa since then. The parties had originally agreed that the son would stay with Descartes in Iowa for six months before returning to New York in August. This would give the son the chance to spend time with Descartes’s high- school-aged daughter from a prior marriage when she visited in the summer. But in July, Modeste sued in New York state court seeking custody of their son and alleging that Descartes was refusing to return him. According to Modeste, she became worried that Descartes “wanted to keep” their son when he did not answer her repeated questions about a precise date for the return over the summer. Soon after, Descartes filed this proceeding in Iowa. He testified that he had planned to return their son as planned. But after Modeste sued, his attorney advised that he should not do so, and he felt like Modeste had ended their agreement and the court should decide “who is a better parent to raise our son.” After some procedural fights about which court had jurisdiction over the custody dispute, the New York court declined to exercise its jurisdiction 5 “on the ground that New York is an inconvenient forum and the court in Iowa is a more appropriate forum.” And then this case moved forward. The parties eventually stipulated—and the court ordered—that their son would remain in Descartes’s physical care temporarily while this case was pending and that Modeste would have visitation rights, including an extended New York City visit for much of December 2024. The stipulation also provided that the parties would equally split any medical expenses for the son above $250 that are not covered by insurance. After a two-day trial in January 2025, the district court issued a custody-and-support order awarding the parties joint legal custody of their son and placing him in the physical care of Descartes with visitation for Modeste. The court set a visitation schedule authorizing visitation with Modeste every summer for four consecutive weeks, every spring break, and alternating Thanksgiving and winter breaks. In addition, it permitted Modeste to visit the son “in the state where he lives with [Descartes] once every sixty (60) days” and “to have the [son] in her care for up to seven days during such visits.” The court also ordered Modeste to “be responsible for the cost of travel expenses for her and the child for her” visitation. And the court ordered Modeste to pay monthly child support to Descartes and ordered the parties to equally split any medical expenses for the son above $250 that are not covered by insurance. Modeste now appeals. II. Physical Care Modeste first challenges the district court’s placement of the parties’ son in Descartes’s physical care. We review the court’s physical-care decision de novo. Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). “[W]e give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by 6 them.” McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010). We do so because “the district court has a front-row seat to the live testimony, viewing the demeanor of both the witness as she testifies and the parties while they listen, whereas our review is limited to reading black words on a white page of a sterile transcript.” Hora v. Hora, 5 N.W.3d 635, 645 (Iowa 2024). This advantage “greatly help[s]” the district court “in making a wise decision about the parties” and their children. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (cleaned up). Our main consideration is the son’s best interest. And we seek to place the son “in the environment most likely to bring [him] to health, both physically and mentally, and to social maturity.” Hensch, 902 N.W.2d at 824 (cleaned up). To guide our analysis, we look to the factors in Iowa Code section 598.41(3) and those discussed in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). See Iowa Code § 600B.40(2). On our de novo review, we agree with the district court that placing the son in Descartes’s physical care is in the son’s best interest. With one parent in New York City and the other in Iowa, joint physical care is not feasible. And like the district court, we think that Descartes will be best able to provide the stability and continuity that their son needs to develop physically, mentally, and socially while also positively supporting their son’s relationship with Modeste. At the time of trial, their then-three-and-a-half-year-old son had spent more than half his life in Descartes’s care. And the son was thriving—doing well in day care, making friends, and improving with his speech and other developmental milestones. Descartes provides structure and appropriate discipline and has much caregiving experience—both as a parent of an older daughter and from caring for his nephews when his sister was deployed and 7 for his younger siblings when growing up. We recognize that Descartes’s military service means that Iowa will not be a permanent home. But it is the stability of relationships more than geography that matters. See In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa Ct. App. 2000) (“Our case law places greater importance on the stability of the relationship between children and their primary caregiver than on the physical setting of the children.” (cleaned up)). Descartes has also shown that he is more likely to encourage a positive relationship between the son and Modeste than vice versa. True, as Modeste emphasizes, she was their son’s primary caregiver at first. And until January 2023 when the son moved into Descartes’s care, Descartes had only had a few short visits with him. But aside from the first four months before Modeste’s stroke, the son’s time outside of Descartes’s care was tumultuous. He moved repeatedly from caregiver to caregiver without the stability and continuity that a child needs. While some of those changes were outside of Modeste’s control, others were the result of erratic changes of opinion and instability in her own plans. And even before the son was in Descartes’s care, Descartes had as much contact as he could, arranged for care with his family when needed, and provided extensive financial support to keep Modeste and the son fed and supplied. We have no doubt that Modeste loves their son. And she will continue to play an essential role in his growth and development. But in selecting the most suitable home, we agree with the district court that Descartes will best serve the son’s interest. We thus affirm the physical-care placement. III. Visitation Schedule Modeste alternatively argues that if their son remains in Descartes’s physical care, her visitation schedule should be increased to provide eight weeks of visitation in the summer rather than the four provided in the order. 8 She claims that the court’s order only provides a total of “six weeks of in- person visitation with the child, which does not ensure maximum and continuing contact between her and the child.” Like the physical-care placement, we review the district court’s visitation schedule de novo. See In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). Our focus remains on what is best for the child. See id. at 695; Iowa Code § 598.41(1)(a). And we recognize that children are often best served by “stability and continuity.” Hansen, 733 N.W.2d at 696. So while “liberal visitation is the benchmark,” we review visitation schedules through the lens of the child’s best interest, rather than the lens of “the parent seeking visitation.” In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994). On our de novo review, we agree that the visitation schedule set by the district court is in the son’s best interest. To start, the visitation schedule is not so limited as Modeste contends. True, it includes about six weeks when their son may travel to be in Modeste’s care—four consecutive weeks every summer, every spring break, and alternating Thanksgiving and winter breaks. But that’s not all. The schedule also provides up to six more one-week visits (once every sixty days) with their son in her care in the state where he and Descartes are living, provided that she ensures he attends his normal school and extracurricular activities during the visit. Modeste discounts this additional six weeks of visitation time because of her concerns about the financial feasibility of paying for all her and her son’s travel expenses. But that is a distinct issue that we will address below. So we consider the full schedule of up to nearly twelve weeks of visitation ordered by the district court. While we understand Modeste’s desire for a longer period of summer visitation, and why she might prefer that to taking advantage of the additional 9 visitation for which she must travel to their son during the year, we focus on the son’s best interest. Particularly at this young age, two months away from his primary home would have a significant “disruptive effect.” In re Marriage of Wahlert, 400 N.W.2d 557, 561 (Iowa 1987) (rejecting request to increase one-month summer visitation to three months); see also In re Marriage of Bartlett, 427 N.W.2d 876, 877–78 (Iowa Ct. App. 1988) (affirming out-of-state visitation schedule of four consecutive weeks and another week over Christmas in alternating years when coupled with more flexible in-state visitation). Considering the unfortunate geographic distance between the parties, and the other eight weeks of potential visitation throughout the year, the visitation schedule best serves the son’s interest, including maximum contact with both parents, continuity, and stability. We thus affirm the district court’s visitation schedule. IV. Visitation Travel Expenses Relatedly, Modeste challenges the provision of the district court’s order making her “responsible for the cost of travel expenses for her and the child for” all her visitation. At trial, she testified that she wanted to continue the parties’ practice of splitting the cost of their son’s travel between the parties for visitation. And now on appeal, she argues that we should modify the order to require the parties to equally share all “the transportation expense[s] for the mother’s in-person visits with the child.” As with the other parts of the order, we review the district court’s decision on the responsibility for visitation travel expenses de novo. See Wahlert, 400 N.W.2d at 559, 561. Our precedents have not established any “bright line rule for assigning the responsibility for transportation expenses to one or both parents.” In re Marriage of Disney, No. 98-1915, 2000 WL 278543, at *2 (Iowa Ct. App. Mar. 15, 2000). Rather, a court must decide 10 what is equitable based “on the facts of each case.” Vastine v. Keough, No. 25-1145, 2026 WL 1329746, at *4 (Iowa Ct. App. May 13, 2026). In deciding what is equitable, we have often considered the parties’ respective financial circumstances—including their income, expenses, and other obligations under the order or decree, such as child support. See, e.g., In re Marriage of Bonnette, 492 N.W.2d 717, 722–23 (Iowa Ct. App. 1992) (considering child-support obligation in affirming equal split of travel expenses); Collins v. Natera, No. 18-2060, 2019 WL 6358431, at *6–7 & n.5 (Iowa Ct. App. Nov. 27, 2019) (considering income and expenses, including one party’s access to inexpensive standby airline tickets as an employment perk); In re Marriage of Worzala, No. 09-1191, 2010 WL 2757127, at *1–2 (Iowa Ct. App. July 14, 2010) (comparing the parties’ income and expenses). So too have we considered the parties’ past travel or payment practices and the distance between the parties and corresponding cost of travel. See In re Marriage of Galleger, No. 20-0302, 2020 WL 6480120, at *5 (Iowa Ct. App. Nov. 4, 2020) (considering parent’s past payment for her own visitation travel expenses in refusing to require sharing of those expenses); Disney, 2000 WL 278543, at *2 (considering past practices). When one party voluntarily moves away from the other, thus causing or increasing the cost of visitation travel, we have sometimes weighed that factor in favor of requiring that party to pay the travel expenses—especially when the moving party also has a greater ability to pay. See, e.g., Vastine, 2026 WL 1329746, at *4 (affirming that it was equitable to assign “the brunt” of the responsibility to party who “voluntarily moved to Missouri,” “has a slightly greater income,” and was “past due” on child-support obligations); In re Marriage of Yazigi, No. 13-1553, 2015 WL 1046129, at *3 (Iowa Ct. App. Mar. 11, 2015) (modifying equal-split provision to require parent who chose 11 to move to Canada “to pay for all of the children’s travel costs necessary to facilitate visitation” when he had substantial income and lower expenses and the other parent had “negligible income” and had to pay child support). But even when one party causes the move, we have still regularly found it equitable for the parties to share travel expenses. See Wahlert, 400 N.W.2d at 561 (rejecting argument that custodial parent moving to Arizona should have to pay all visitation travel expenses but still modifying the decree to require parties to split expenses equally rather than requiring the noncustodial parent to pay all expenses); Galleger, 2020 WL 6480120, at *5 (“Although [the father] is the party who moved, it is equitable for the parties to share visitation expenses.”); In re Marriage of Gossweiler, No. 99-1470, 2000 WL 564200, at *1, *3 (Iowa Ct. App. May 10, 2000) (modifying decree that required moving parent to pay for all expenses to instead require the parties to share them equally); Disney, 2000 WL 278543, at *2 (affirming equal sharing despite one party’s choice to move when, among other factors, the parties “had a long-standing plan” for that out-of-state move). Mindful of this legal landscape, we conclude that it is inequitable to require Modeste to be responsible for all the visitation travel expenses. The parties live far apart—in New York City and Iowa—so the expense of travel is significant. Neither party moved to cause the need for this travel—they have never resided near each other. It has been their practice to equally share the expense of the son’s travel for visitation. And the parties’ respective financial circumstances show that Descartes has a greater ability to pay—he has a significantly higher income and a lower cost of living than Modeste, and she has also been ordered to pay Descartes $831 in monthly child support further increasing the disparity. 12  True, as the district court factored in, the parties are each responsible for any childcare expenses while the son is in their care—somewhat narrowing the disparity in the parties’ financial circumstances. But this single factor is not enough to tip the equities in favor of requiring Modeste to bear all travel expenses for their son—especially considering that ultimately, “[f ]acilitating the visitation arrangement” by ensuring that there are financial resources available to make the visitation possible is not merely for the “convenience” or benefit of one parent or the other but for the best interest of the child. In re Marriage of Kremer, No. 99-2054, 2001 WL 195284, at *3 (Iowa Ct. App. Feb. 28, 2001). Still, we do not go so far as Modeste requests in seeking to require Descartes to also share in her travel expenses for the more frequent visitation that she is authorized in the state where Descartes and their son are living. Because of the discretion given to Modeste as to whether and how to exercise this visitation, the lack of similar established expense-sharing practices, and the potential for conflict between the parties over the expenses Modeste chooses to incur for herself, it is appropriate for her to maintain responsibility for her visitation travel expenses. This limitation is also consistent with our approach in similar past cases. See Galleger, 2020 WL 6480120, at *5 (declining noncustodial parent’s request to modify the decree to require sharing of her travel expenses when the other parent was already sharing in the child’s travel expenses for summer and school-break visitation); In re Marriage of Moyer, No. 11-1695, 2012 WL 2412075, at *6 (Iowa Ct. App. June 27, 2012) (modifying decree to require equal sharing of child’s travel expenses for visitation over summer and school breaks but not for the noncustodial parent’s weekend or other extra visitation). And given this added financial burden placed on Modeste for her travel, it makes sharing the son’s travel expenses all the more equitable. 13  We thus modify the custody-and-support order to require that going forward—after this appeal is final upon the issuance of procedendo—the parties shall share equally in their son’s travel expenses for the visitation during spring break, summer break, and the alternating Thanksgiving and winter breaks. Modeste shall remain solely responsible for the travel expenses for any of the visitation that she chooses to exercise once every sixty days in the state where Descartes and their son are living. V. Medical Expenses Modeste also challenges the uncovered-medical-expense provision of the order, arguing that the court failed to divide the parties’ obligations to pay beyond the first $250 “in proportion to their respective net incomes” without making written findings supporting a variance as required by the child-support guidelines. Iowa Ct. R. 9.12(5) (2025). But this issue is not properly preserved for our review because Modeste failed to raise this claim in the district court. Before we can consider a claim of error on appeal, a party must first preserve error by raising the issue in—and getting a ruling from—the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). This allows the district court an opportunity to address the error itself “at a time when corrective action can be taken.” In re Marriage of Heiar, 954 N.W.2d 464, 470 (Iowa Ct. App. 2020) (cleaned up). And it ensures that we are acting as a court of appeals, reviewing a decision already made by the district court rather than considering it for the first time on appeal. See Meier, 641 N.W.2d at 537. This error-preservation requirement applies even to equitable chapter 600B custody-and-support proceedings that we review de novo. Cf. In re Marriage of Huston, 263 N.W.2d 697, 699–700 (Iowa 1978) (explaining the same for equitable dissolution proceedings). 14  We see no discussion of the proper division of medical expenses at trial or otherwise in the record, except for the parties’ stipulation of temporary matters, in which the parties agreed to an equal split of uncovered medical expenses—the same division ultimately ordered by the district court.1 And even after the court included the challenged provision in the order, Modeste did not move for reconsideration or amendment under Iowa Rule of Civil Procedure 1.904(2). See In re Marriage of Gensley, 777 N.W.2d 705, 718–19 (Iowa Ct. App. 2009) (holding that error was not preserved regarding issue only apparent from text of the decree when neither party filed rule 1.904(2) motion). Had she done so, the court could have adjusted the division or entered written findings explaining why it was varying from the guidelines— all without expending party and judicial resources to address the issue for the first time on appeal. Because Modeste has not preserved error, we do not consider the merits of this claim. VI. Attorney Fees Finally, both parties request appellate attorney fees. We have discretion to award attorney fees to “the prevailing party” in chapter 600B custody-and-support cases. Iowa Code § 600B.26; see also Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005). When exercising that discretion, we consider “the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the 1 In her reply brief, Modeste contends that she raised the issue by “request[ing] that the trial court calculate child support per the guidelines.” Assuming such an argument would preserve this specific claim of error about the division of medical expenses, the cited pages of the trial transcript show no such argument made. Modeste’s testimony never mentioned the child-support guidelines—it focused on her lack of concern about child support and her understanding the court would still be required to enter an order addressing child support. 15 trial court’s decision on appeal.” Markey, 705 N.W.2d at 26 (cleaned up). Considering these factors, including the partial success of each party, we decline to award either party appellate attorney fees. Appellate costs are assessed to each party equally. AFFIRMED AS MODIFIED. 16