IN RE THE MARRIAGE OF ROBERT JOHN BISPING AND KENDRA LEIGH BISPING Upon the Petition of ROBERT JOHN BISPING, Petitioner-Appellee, And Concerning KENDRA LEIGH BISPING, Respondent-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-071 / 08-1455
Filed May 6, 2009
IN RE THE MARRIAGE OF ROBERT
JOHN BISPING AND KENDRA LEIGH BISPING
Upon the Petition of
ROBERT JOHN BISPING,
Petitioner-Appellee,
And Concerning
KENDRA LEIGH BISPING,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Lawrence H.
Fautsch, Judge.
A mother appeals a dissolution decree granting joint physical care to her
and the children’s father, contending that physical care should have been placed
with her. AFFIRMED.
Robert Sudmeier and Jenny L. Harris of Fuerste, Carew, Coyle, Juergens
& Sudmeier, P.C., Dubuque, for appellant.
Thomas Bitter of Bitter Law Offices, Dubuque, for appellee.
Heard by Vaitheswaran, P.J., and Eisenhauer and Doyle, JJ.
2
VAITHESWARAN, P.J.
Kendra Bisping appeals a dissolution decree. She contends the district
court acted inequitably in refusing to grant her physical care of the children.
I.
Background Facts and Proceedings
Kendra and Robert Bisping married in 2000 and had two children. They
also cared for Robert’s children from prior relationships. When they separated in
early 2007, they structured a joint physical care plan that afforded each parent
alternating weeks with their two children.
Meanwhile, Kendra trained for a
promotional opportunity at work that potentially required relocation from
Dubuque, Iowa, to another city or state.
At trial, Kendra sought physical care of the children while Robert proposed
to continue with the joint physical care arrangement. The district court granted
the parents joint physical care and ordered no child support. Kendra appealed.
II.
Physical Care
Kendra contends the district court should have granted her physical care
of the children. She maintains the district court (A) placed too much emphasis on
the parents’ temporary arrangement, (B) improperly restricted her possible
relocation, and (C) did not properly apply the factors set forth in In re Marriage of
Hansen, 733 N.W.2d 683 (Iowa 2007).
A. Kendra argues the “temporary care arrangement . . . was not a factor
the Court should have considered in its final physical care determination.” She
relies on In re Marriage of Swenka, 576 N.W.2d 615, 617 (Iowa Ct. App. 1998),
which states, “Temporary orders awarding physical custody create no
3
presumption that parent is the preferred parent in a final custody decision.” That
language has no bearing here.
As noted, the parents voluntarily structured an arrangement that afforded
each of them approximately equal time with the children.
This arrangement
worked effectively for eighteen months prior to trial. As the district court stated:
[T]he parties have been exercising shared physical care since
February 1, 2007.
The temporary shared physical care
arrangement was [Kendra’s] proposal. Shared physical care has
worked well. The children are happy and Kayla is doing well in
school.
On our de novo review, we find support for these findings. We conclude the
district court acted within its authority in considering the efficacy of the temporary
arrangement. See Swenka, 576 N.W.2d at 618 (considering the fact that the
parent who was granted temporary physical care of the children “did a good job
caring for [the children] for two years after the temporary order was entered”).
B.
Kendra next takes issue with the district court’s treatment of her
possible relocation. On this question, the court noted that Kendra learned about
a possible move just “a couple of weeks” before trial, and had “no idea at this
time as to what city or state she would be required to relocate to.” The court
suggested that a move would not “offer the children the stability that they
presently enjoy.” Kendra maintains that the court prevented her from “continuing
her career goals.” On this record, we disagree.
At the time of trial, Kendra knew little about the potential relocation and its
effects on the children. See In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa
1984) (noting “the evidence is conflict as to whether such a move will benefit or
harmfully uproot the children”). Because the details were not known, this factor
4
was essentially not ripe for consideration. See In re Marriage of Frederici, 338
N.W.2d 156, 158 (Iowa 1983) (“In determining whether removal should be
prevented, the trial court must consider all of the surrounding circumstances.
They include the reasons for removal, location, distance, comparative
advantages and disadvantages of the new environment, impact on the children,
and impact on the joint custodial and access rights of the other parent.”). In
contrast, the record was clear that the move would deprive the children of regular
contact with their father and half-siblings.
In the absence of countervailing
considerations, we believe the best interests of the children dictated an
arrangement that would maximize their contact with their father.
C. We turn to considerations set forth in Hansen relevant to this appeal.
The court first considered the “historic patterns of caregiving.”
N.W.2d at 697.
Hansen, 733
On this issue, the pre- and post-separation patterns were
significantly different. Before the parents separated, Kendra managed the dayto-day responsibilities of her children as well as her stepchildren. For example,
she bought the children’s clothes, did the laundry, purchased groceries, made
meals, helped the children with homework, and took care of most of the
children’s medical appointments. While Robert was actively involved with the
children and their curricular and extra-curricular activities, we agree with the
district court’s finding that Kendra “was the primary caregiver prior to the
separation of the parties.”
As noted, the parents alternated physical care of the children after the
separation. Robert testified that the arrangement did not adversely affect the
children and their grades did not slip. Although Kendra cited several instances of
5
non-cooperation by Robert, she provided scant evidence that the children were
harmed by this arrangement. For that reason, we agree with the district court
that the parents’ willingness and ability to voluntarily implement a joint physical
care plan overrides Kendra’s prior role as primary caretaker.
We next consider Kendra’s cited examples of non-cooperation, another
factor deemed important in Hansen. See id. at 698 (considering the “ability of the
spouses to communicate and show mutual respect”). Kendra complains that
Robert did not allow her to transfer the children’s clothes from his house to hers,
did not transport one of the children to religious training classes, did not allow her
to switch weeks on one occasion, and would not reimburse her for uninsured
medical expenses absent a court order.
We recognize that divorce comes with a certain amount of discord. See In
re Marriage of Ellis, 705 N.W.2d 96, 103 (Iowa Ct. App. 2005), overruled on other
grounds by In re Marriage of Hansen, 733 N.W.2d 684 (Iowa 2007). Therefore,
we are not surprised that the parents had some differences of opinion during the
eighteen months preceding trial. Despite these differences, they exchanged the
children, divided holidays, and managed most of the children’s daily activities
without court intervention.
See Hansen, 733 N.W.2d at 697–98 (noting that
where both parents have historically contributed to physical care of a child in
roughly the same proportion, joint physical care is most likely in the best interests
of the child). And, Kendra testified that she would be able to “cooperate with Bob
here on whatever physical care or visitation arrangement” was reached. The
parents’ willingness to generally put the children’s needs above their own
militates in favor of joint physical care. See id. at 697 (“[L]ong-term, successful,
6
joint care is a significant factor in considering the viability of joint physical care
after divorce.”).
We find it unnecessary to discuss the remaining evidence highlighted by
Kendra. On our de novo review of the record, we conclude the district court
acted equitably in granting the parents joint physical care of the children. Our
conclusion also makes it unnecessary to address Kendra’s request for child
support, as she does not seriously dispute the district court’s finding that the
parents had essentially equal earnings and she appears to seek support only in
the event the physical care determination is modified.1
AFFIRMED.
1
If Kendra is in fact contesting the district court’s finding that the parents had equal
earnings, we note that the record supports this finding.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.