                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0872
                              Filed February 8, 2017


IN RE THE MARRIAGE OF JOHN MICHAEL MCKIMMY
AND CRYSTAL LYNNE MCKIMMY

Upon the Petition of
JOHN MICHAEL MCKIMMY,
      Petitioner-Appellee,

And Concerning
CRYSTAL LYNNE MCKIMMY,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Howard County, John J.

Bauercamper, Judge.



      A former wife appeals the physical care and spousal support provisions of

the decree that dissolved her marriage. AFFIRMED.



      Jill A. Dillon of Dillon Law, P.C., Sumner, for appellant.

      Mark B. Anderson, Cresco, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.

      Crystal McKimmy appeals the physical care and spousal support

provisions of the decree that dissolved her marriage to John McKimmy. She

claims the court should have awarded her physical care of the children or,

alternatively, placed the children with her mother, the children’s maternal

grandmother. She also claims an award of spousal support is warranted in light

of her disability, and at the very least, a nominal amount of spousal support is in

order to protect her should her government benefits be cut in the future. Finally,

she seeks an award of appellate attorney fees.

I. Physical Care.

      The children at issue in this case, ages fourteen and ten at the time of

trial, had been living with Crystal’s mother in New Hampton for the past ten

years. The children were voluntarily placed with their maternal grandmother by

the parties due to Crystal’s mental health struggles. The parties separated in

2014, and John moved to Elma, some twenty miles from New Hampton. The

parties stipulated to placing the children in the grandmother’s care during the

pendency of the dissolution proceeding, with John exercising visitation every

weekend and paying the grandmother monthly child support. Thus, the children

have not been in either parent’s physical care for ten years.

      The visitation during the dissolution proceedings was marked by difficulty.

Several times the children ran away from John’s home or John’s father’s home in

the middle of the night.    On each occasion, the grandmother picked up the

children and refused to return them to John’s care.             In addition, several

weekends the children refused to attend visitation with John.        The children’s
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grandmother testified she told the children it was up to them if they wanted to

attend visitation with John. Crystal testified the pastor of the church the children

attend and the grandmother’s friends have told the children they can choose

where they go, but Crystal asserted she has told the children they need to go

with their father.

       The district court placed the children in John’s physical care but noted the

long-term reliance on the grandmother to care for the children made it difficult to

award either parent physical care. The court stated placing the children with

Crystal was not in the best interest of the children due to Crystal’s mental and

physical disabilities and placing the children in the grandmother’s care was not

permitted under Iowa Code chapter 598 (2014).1 The court, while noting the

grandmother was in good health, was also concerned with her advanced age and

her interference with John’s visitation rights.

       On appeal, Crystal asserts the children should have been placed in her

care, or alternatively, placed with the grandmother. While Crystal testified her

mental health was improving following the parties’ separation, the mental health

records admitted at trial indicate she still struggles greatly with depression and

anxiety and other mental health diagnoses. In addition, her housing situation

was unstable. The marital home was in foreclosure, and Crystal had not yet

obtained other housing, stating she planned to live with her mother until she was

able to find a place to live. While the court did have the authority to award

custody of the minor children to a stranger to the dissolution proceedings, such

1
  The grandmother did not intervene in the dissolution proceeding. See In re Marriage of
Mitchell, 531 N.W.2d 132, 133 (Iowa 1995) (“[G]randparents are permitted to intervene
in an ongoing dissolution proceeding on the issue of child custody.”).
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as the grandmother in this case, before doing so, the court would have had to

make a finding that both parents were unfit to care for the children. See Mitchell,

531 N.W.2d at 133; see also In re Marriage of Reschly, 334 N.W.2d 720, 723

(Iowa 1983) (finding the presumption of suitability of the parents had been

rebutted and affirming the district court’s decision to award custody of the

children to the grandparents). The court did not do so. Furthermore, the facts in

this case do not support a finding that John is unfit to care for the children. While

there has been conflict between the children and John during visitation leading

up to the trial, particularly with the older child, that conflict appeared to have been

fostered by some of the other adults in the children’s lives. Upon our de novo

review of the record and keeping the children’s best interests as our paramount

concern, we agree with the district court’s physical care decision. See McKee v.

Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010) (stating the standard of review

in child custody actions).

II. Spousal Support.

       Crystal also challenges the district court’s refusal to award her spousal

support.   She notes her only income is supplemental security income in the

amount of $733 per month. This income is provided because she is unable to

work due to her mental health disabilities. Due to Crystal’s limited earnings, the

district court ordered her to pay only $20 per month in child support, and the

court ordered John to provide for the children’s health insurance and cover all

uncovered medical expenses. John works as a truck driver and earned $41,824

in 2015, though he testified this was due to the substantial overtime he was

working, as much as twenty to thirty hours of overtime each week. If he were to
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receive physical care of the children, he anticipated working less overtime so that

he could be home more with the children, which would substantially decrease his

earnings. The parties had no assets from the marriage beyond their personal

property.

       Many factors are considered when determining whether an award of

spousal support is warranted. See Iowa Code § 598.21A(1). However, each

case must be decided upon its own particular circumstances and precedent is of

little value. In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015). In this

case, the marriage was of moderate duration, lasting fifteen years. Crystal has

earned two post-secondary degrees but is unable to work due to her disabilities.

John has training as a truck driver but no other post-secondary education. The

parties lived modestly during the marriage, accumulating no assets.

       The district court denied Crystal’s request for spousal support, noting John

“has a negative net worth, modest income, and has virtually the sole obligation

for the support of the children and provision of their medical care with only

nominal contributions from [Crystal] and no reasonable expectation that she will

ever be able to contribute.” “Where a spouse does not have the ability to pay

traditional spousal support, . . . none will be awarded.” Id. at 412; see also In re

Marriage of Woodward, 426 N.W.2d 668, 670 (Iowa Ct. App. 1988) (declining to

award spousal support to the wife because the husband did “not have income to

meet more than the children’s minimal needs”). In light of John’s limited earnings

and almost sole responsibility to financially support the children, we agree with

the district court’s denial of Crystal’s request for spousal support.
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III. Appellate Attorney Fees.

        Finally, Crystal seeks an award of appellate attorney fees. Such an award

is within our discretion, and we consider “the needs of the party seeking the

award, the ability of the other party to pay, and the relative merits of the appeal.”

In re Marriage of Sulllins, 715 N.W.2d 242, 255 (Iowa 2006) (citations omitted).

Upon our consideration of these factors, we decline to award appellate attorney

fees.

        AFFIRMED.
