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Oltmanns v. Oltmanns

Court of Appeals of North Carolina

June 2, 2015

PATRICK B. OLTMANNS, Plaintiff,
v.
BABETTE R. OLTMANNS, Defendant

Heard in the Court of Appeals January 6, 2015

Page 348

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Mecklenburg County, No. 10 CVD 26137.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, for plaintiff-appellant.

Jonathan McGirt for defendant-appellee.

BRYANT, Judge. Judges STROUD and HUNTER, Jr., concur.

OPINION

Page 349

Appeal by plaintiff from orders entered 20 February 2012, 7 November 2012, and 31 July 2013 by Judge Christy T. Mann in Mecklenburg County District Court. Heard in the Court of Appeals 6 January 2015.

Page 350

BRYANT, Judge.

Where the record indicates that both an absolute divorce and a divorce from bed and board were granted, plaintiff's argument that the trial court improperly granted a divorce from bed and board is moot. The trial court did not abuse its discretion in its award of child custody and child support where the trial court made findings of fact and conclusions of law in support of its decisions. Where plaintiff failed to rebut the presumption that a depreciation in certain property was not divisible, the trial court acted within its discretion to classify the depreciation of certain property as divisible.

Plaintiff Patrick B. Oltmanns (" plaintiff" ) and defendant Babette R. Oltmanns (" defendant" ) married on 21 December 2001. Two minor children were born of the marriage.

On 28 December 2010, plaintiff filed a complaint against defendant for equitable distribution, post-separation support, alimony, child custody, child support, and attorneys' fees. Defendant filed her answer, defenses, counterclaims, and motions requesting, inter alia, divorce from bed and board, equitable distribution, child support, child custody, post-separation support, alimony, attorneys' fees, Rule 11 sanctions against plaintiff, and a temporary restraining order and preliminary injunction against plaintiff.

Plaintiff failed to reply to defendant's counterclaims. However, plaintiff filed a motion for judgment on the pleadings concerning defendant's counterclaim for divorce from bed and board. On 20 February 2012, the trial court entered an order " grant[ing plaintiff's motion] in favor of Defendant." The trial court also noted in its findings and conclusions that, as plaintiff had not filed a reply to defendant's counterclaims, the allegations in those counterclaims would be deemed admitted. That same day, the trial court entered orders granting defendant's motion to compel discovery and awarding temporary child custody and attorney's fees to defendant.

On 7 November 2012, the trial court entered an order for permanent child custody, granting primary custody to defendant and secondary custody to plaintiff. On 31 July 2013, the trial court entered an order and judgment for permanent child support and equitable distribution, and reserved judgment as to each party's claim for attorney's fees concerning child support. Plaintiff appeals.

Plaintiff raises four issues on appeal as to whether the trial court (I) erred in granting judgment on the pleadings as to defendant's counterclaim for divorce from bed and board; (II) erred in its child custody ruling; (III) erred in its award of child support; and (IV) erred in ...


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