Oltmanns v. Oltmanns

773 S.E.2d 347, 241 N.C. App. 326, 2015 N.C. App. LEXIS 441
Court of Appeals of North Carolina·Decided June 2, 2015·No. No. COA14–690.·Published·Cited by 4 cases

Opinion

BRYANT, Judge.

*328Where 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, *329defenses, 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.

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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 classifying the post-separation depreciation of two houses as marital property.

I.

Plaintiff argues that the trial court erred in granting judgment on the pleadings as to defendant's counterclaim for divorce from bed and board. We disagree.

Plaintiff contends the trial court erred in granting judgment in favor of defendant on plaintiff's motion for judgment on the pleadings as to defendant's counterclaim for divorce from bed and board. Plaintiff's argument first claims error based upon the trial court's deeming the allegations of defendant's counterclaim as to divorce from bed and board to be true based upon plaintiff's motion for judgment on the pleadings, since N.C. Gen.Stat. § 50-10(a) provides that the "material facts" of the *330counterclaim are "deemed to be denied ... whether the same shall be actually denied by pleading or not [.]" N.C.G.S. § 50-10(a) (2014). Plaintiff further argues that defendant's counterclaim for divorce from bed and board became moot after rendition and that the trial court should not have entered judgment upon the claim for divorce from bed and board because, in the time between rendition and entry, the parties had been granted an absolute divorce. We address plaintiff's second argument first as we find the issue of mootness to be dispositive, although not exactly in the manner as claimed by plaintiff.

The trial court heard the motion for judgment on the pleadings on 3 January 2012, *351and rendered the ruling in open court that same day. Judgment for an absolute divorce was entered on 16 February 2012. The written order granting judgment on the pleadings for divorce from bed and board was entered on 20 February 2012.

Plaintiff's argument that the 20 February 2012 order is moot highlights the difference between "rendition" of judgment and "entry" of judgment.

Under Rule 58 of the North Carolina Rules of Civil Procedure, a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. Announcement of judgment in open court merely constitutes 'rendering' of judgment, not entry of judgment. Entry of judgment by the trial court is the event which vests jurisdiction in this Court.

Mastin v. Griffith, 133 N.C.App. 345, 346, 515 S.E.2d 494, 494-95 (1999) (citations and quotations omitted).

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Oltmanns v. Oltmanns, 773 S.E.2d 347, 241 N.C. App. 326, 2015 N.C. App. LEXIS 441 (N.C. Ct. App. 2015).

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