                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                     CHANTLER V. CHANTLER


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                  GARY ROGER CHANTLER, APPELLEE AND CROSS-APPELLANT,
                                          V.
                 SUE ELLEN CHANTLER, NOW KNOWN AS SUE ELLEN DECHENNE,
                             APPELLANT AND CROSS-APPELLEE.



                              Filed May 14, 2013.     No. A-12-707.


       Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR, Judge.
Affirmed in part, and in part reversed and remanded with directions.
     Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier &
Lonowski, P.C., L.L.O., for appellant.
       Jane F. Langan and Sheila A. Bentzen, of Rembolt Ludtke, L.L.P., for appellee.


       SIEVERS, PIRTLE, and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        Sue Ellen Chantler, now known as Sue Ellen DeChenne, appeals and Gary Roger
Chantler cross-appeals from the decision of the district court for Lancaster County. Sue argues
the district court erred in determining that Gary’s child support obligation with respect to the
parties’ older child ended in June 2010 and in awarding Gary a credit for overpayment of child
support. We find the district court did not abuse its discretion in terminating Gary’s child support
as of June 2010. However, we find it was an abuse of discretion for the district court to award
Gary a credit for overpayment and reverse and remand that portion of the order.
        Gary argues on cross-appeal that the district court erred in denying his request for
physical custody of the parties’ younger child. Because we find the district court’s refusal to
modify custody was supported by the evidence, we affirm that portion of the order.



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                                        BACKGROUND
        The State of Washington dissolved Sue and Gary’s marriage in December 2003. Sue was
awarded physical custody of the parties’ two minor children: Jessica Chantler, born in 1991, and
Heather Chantler, born in 1997, subject to Gary’s parenting time. Gary was ordered to pay child
support “until the child(ren) reach(es) the age of 18 or as long as the child(ren) remain(s)
enrolled in high school, whichever occurs last.”
        Several months after the divorce was finalized, Gary moved from Washington to New
Mexico because he received a “very good” job offer there. His girlfriend moved to New Mexico
that summer to be with him. A few years later, Sue moved with the children to Oregon so she
could obtain her “Ph.D. . . . from Oregon State University.”
        Jessica suffers from lupus and was hospitalized for a month during her senior year of
high school due to a “lupus flare.” Because of her hospitalization, she fell behind in school and
was unable to complete all of the required credits by the time her class graduated. Her school
made an exception for her and allowed her to walk in the graduation ceremony in June 2010,
because she had been on track to graduate before getting sick and had made significant progress
toward completing her requirements after getting out of the hospital.
        Shortly after the graduation ceremony, Sue and Heather moved to Lincoln, Nebraska,
because Sue accepted a job with the University of Nebraska-Lincoln. Jessica remained in Oregon
and enrolled in college courses that summer which counted both for college credit and toward
completing her remaining high school requirements. She enrolled in an online course in the fall
of 2010 to complete her final high school course, in addition to attending courses at Oregon State
University for college credit.
        Despite these attempts, Jessica was unable to complete her courses because she had
another complication from lupus in January 2011, which required surgery on her hip. The
surgery was unsuccessful, so 2 months later, she had a hip replacement. Jessica lived with Sue in
Nebraska while recovering from the surgeries but was able to return to her online course in April
2011 and completed it that summer. She moved back to Oregon in June 2011. Gary continued to
pay child support for Jessica until September 2011.
        Jessica’s high school diploma is dated June 2010. Her high school transcript indicates
that she received her diploma on June 24, 2011, and Jessica testified that although she received a
certificate of attendance at the graduation ceremony in June 2010, she did not receive her actual
diploma until June 2011.
        Because all of the parties have relocated from Washington, Gary filed a complaint in
Lancaster County District Court asking the court to register the decree and child support order
from Washington. He also requested that the court terminate his child support obligation with
respect to Jessica and award him physical custody of Heather. Sue responded, seeking an
increase in Gary’s child support for Heather and a modification of his parenting time. Trial was
held on these issues, as well as other financial-related issues and attorney fees.
        Gary testified at trial that he would like physical custody of Heather because he believes
he can provide stability and a good life for her. Gary has lived in the same home since moving to
New Mexico in 2004, and Heather has a good, close relationship with his live-in girlfriend. New
Mexico would provide good educational opportunities for Heather because of Gary’s job.



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Heather would have the opportunity for an internship to work with the scientists at the laboratory
where Gary works, and if Heather were to graduate from high school in New Mexico, she would
get a scholarship to any university in the state.
         Since 2005, Gary has had parenting time with Heather for 6 weeks in the summer, during
her spring break, and for Thanksgiving or Christmas on alternating years. Gary testified that
during the time Heather has spent in New Mexico, she has formed friendships, she goes to
church, and she participates in a theater group. However, Gary admitted that after moving to
New Mexico, he rarely, if at all, traveled to Washington or Oregon to see his daughters’ school
events and has never attended a parent-teacher conference.
         Heather testified that she is doing well in school, earning almost all A’s. She is involved
in dance and cheer, plays the violin, and participates in a youth group at her church. While she
gets along “pretty well” with Sue, Heather testified that she wants to live with Gary and that she
has been telling him that for the past year. When asked why she would prefer to live with Gary,
Heather stated that she does not really have a “firm foundation” with Gary and that she would
like to “get that firm foundation.” In addition, Heather stated that if she were to live with Gary,
she knows she would not be moving again because Sue “moves a lot. A lot.”
         Sue testified that her current job in Nebraska is a 2-year position that is supposed to end
in July 2012 but could be renewed. At the time of trial, Sue had applied for new employment at
various universities and was waiting for a response. Her first choice would be a position at
Illinois State University. Sue wants Heather to continue living with her and did not think Heather
would have a problem adjusting if they had to move again, because Heather has shown that she
is good at adjusting to new communities.
         Sue testified that Gary has not exercised all of the parenting time that has been afforded
to him with Heather and has never come to Nebraska to see her. When asked to characterize
Gary’s involvement with the children since the divorce, Sue responded that “when they’re down
there, he’s involved with them; when they’re not, he’s not.” She stated that she would have
concerns if Gary was awarded custody of Heather because of his lack of investment in her
childhood, as he seems to not contact her or be very involved with her when she is not in New
Mexico with him.
         After trial, the district court entered an order making various findings. The court
registered the dissolution decree, child support order, and parenting plan from Washington. The
court declined to modify custody of Heather but adopted a parenting plan in accordance with
Nebraska law.
         The court found that Jessica was no longer enrolled in high school after June 30, 2010,
and that therefore no expense sharing for Jessica was required after that date. Moreover, the
court awarded Gary a $6,735 credit for his child support overpayment from July 2010 through
September 2011. The court calculated this amount by multiplying the amount of child support
Gary had paid for Jessica per month by the number of months Gary had overpaid. The court also
increased the amount of child support Gary owes for Heather to $759 per month. The net result
of the district court’s findings was a judgment in favor of Gary in the amount of $4,800.
         Sue filed a motion for a new trial, which the court denied. Sue then appealed, and Gary
cross-appealed.



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                                   ASSIGNMENTS OF ERROR
        On appeal, Sue alleges that the trial court erred (1) in determining that Jessica was no
longer enrolled in high school as of June 30, 2010, and that no expense sharing for Jessica was
due after that date and (2) in determining that Gary should receive a credit for overpayment of
child support.
        On cross-appeal, Gary alleges that the trial court erred in failing to award him physical
custody of Heather.
                                            ANALYSIS
Child Support and Expense Sharing for Jessica.
        Modification of child support is entrusted to the discretion of the trial court. Rutherford v.
Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009). An appellate court reviews proceedings for
modification of child support de novo on the record and will affirm the judgment of the trial
court absent an abuse of discretion. Id. A judicial abuse of discretion exists when reasons or
rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition. Id.
        Sue argues the trial court erred in determining that Jessica was no longer enrolled in high
school after June 2010. Jessica was on track to graduate with her class in June 2010 until she was
hospitalized. Although she was several credits short of the graduation requirements, she
participated in the graduation ceremony with her class. Jessica’s high school diploma is dated
June 2010. After that time, Jessica never registered for or attended any classes at her high school.
She completed her coursework by taking college courses and applying the credits to her high
school requirements. Because the record supports a finding that Jessica was no longer enrolled in
high school after June 2010, we find the district court did not abuse its discretion in concluding
that no child support or expense sharing was due after that date.
Credit for Overpaid Child Support.
        Sue argues the district court erred in determining that Gary should receive a credit for
overpayment of child support. The general rule is that no credit is given for voluntary
overpayments of child support, even if they are made under a mistaken belief that they are
legally required. Jameson v. Jameson, 13 Neb. App. 703, 700 N.W.2d 638 (2005). However,
“[e]xceptions are made to the ‘no credit for voluntary overpayment rule’ when the equities of the
circumstances demand it and when allowing a credit will not work a hardship on the minor
children.” Griess v. Griess, 9 Neb. App. 105, 115, 608 N.W.2d 217, 224 (2000).
        In Griess, supra, an obligor grossly and unwittingly overpaid child support by relying on
inaccurate child support computations done by the obligee’s lawyer and erroneously approved by
the trial judge. This court determined that the obligor was entitled to a credit against future
payments because doing so would not work a hardship on the minor children and the obligor had
timely paid in accordance with the erroneous order.
        In Jameson, supra, we refused to award an obligor credit for voluntarily overpaying child
support by nearly $20,000 even though the obligor subsequently became unemployed and
remained so at the time of the hearing. We reasoned that the amounts the obligor had overpaid




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were not unreasonable and that there was no evidence in the record that giving a credit would not
work a hardship on the children.
         We find the situation at hand more similar to Jameson than Griess. The amount Gary
overpaid was not due to an erroneous court calculation, and the amount paid from July 2010
through September 2011 was not unreasonable. Gary maintains the same employment he had at
the time of the overpayments, and in fact, his salary has increased since that time. Additionally,
there is no evidence in the record that awarding Gary a credit for the overpayment would not
work a hardship on Jessica or Heather. The record establishes that Gary earns a higher salary
than Sue, and Sue’s employment future was uncertain at the time of trial.
         The equities of the circumstances here do not demand that a credit be given, and we find
nothing in the record to support deviating from the general rule. The fact that the district court
modified Gary’s child support obligation with respect to Heather has no bearing on whether Gary
is entitled to a credit for overpaying child support for Jessica. The increase in Heather’s support
is due to a material increase in Gary’s income as he owes an equal duty to contribute to the
support of his children in proportion to his income. See Neb. Ct. R. § 4-201. We therefore find
that the district court abused its discretion in awarding Gary a $6,735 credit for voluntarily
overpaying child support from July 2010 through September 2011.
         The net result of the district court’s order was a judgment of $4,800 in favor of Gary.
Without the $6,735 credit, the net result is a $1,935 judgment in favor of Sue. We reverse and
remand this part of the district court’s order with directions to enter an order consistent with our
findings.
Modification of Custody of Heather.
        On cross-appeal, Gary argues the district court erred in denying his request for a change
of custody of Heather. Gary bases his assertions primarily on Sue’s previous relocations and
desire to move again in contrast with Gary’s long-term stability. We find no abuse of discretion
by the district court.
        Child custody determinations are matters initially entrusted to the discretion of the trial
court, and although on appeal the issue is reviewed de novo on the record, the decision of the
trial court will be affirmed absent an abuse of discretion. Adams v. Adams, 13 Neb. App. 276,
691 N.W.2d 541 (2005). Ordinarily, custody of a minor child will not be modified unless there
has been a material change in circumstances showing that the custodial parent is unfit or that the
best interests of the child require such action. Id. The party seeking modification of child custody
bears the burden of demonstrating such a material change in circumstances, which requires a
showing of the occurrence of something which, had it been known to the dissolution court at the
time of the initial decree, would have persuaded the court to decree differently. See id.
        On a de novo review of the record presented, there was no material change of
circumstances demonstrated. The only thing demonstrated was that Sue has moved twice since
the divorce and may or may not move again. While Gary has lived in the same home in New
Mexico for the last 8 years, it was Gary who initially moved away from the children shortly after
the divorce was finalized. Sue testified that if Gary had remained in Washington, she would not
have moved the children away from him. Gary moved to further his career, and so did Sue.




                                               -5-
        Although Heather testified that she wants to live with Gary, the evidence indicates that
she is thriving while living with Sue. She is doing well in school, has a lot of friends, and is
involved in extracurricular activities. After Heather testified, the trial judge commented on “what
a seemingly bright, attractive, witty young girl” Heather was and that she is “just a very nice
young lady.” We find that Gary failed to demonstrate a material change in circumstances, and
therefore, this assignment of error is meritless.
                                         CONCLUSION
        We conclude the district court did not abuse its discretion in determining that Jessica was
no longer enrolled in high school after June 2010 and refusing to award Gary physical custody of
Heather. We therefore affirm these portions of the district court’s order. However, we find it was
an abuse of discretion for the district court to award Gary a credit for overpayment of child
support, and therefore, we reverse that part of the district court’s order and remand the cause
with directions to enter an order consistent with this opinion.
                                                        AFFIRMED IN PART, AND IN PART REVERSED
                                                        AND REMANDED WITH DIRECTIONS.




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