majority">JOHNSON, Judge.

Defendant presents four assignments of error to support his contentions that the court erred in finding him in contempt for violating the 11 June 1981 order, and that the order of 8 March 1982 should be reversed. First, defendant argues the findings of fact and conclusions of law of the 8 March 1982 order were not supported by sufficient evidence. More specifically, defendant claims finding of fact number 8 which states, “that the Defendant’s failure to make his payments are ordered by this Court has been willful and without legal justification,” is not supported by the evidence. For the reasons that follow, we agree with defendant.

It appears from the record that following the hearing on 29 December 1980, the court took the matter under advisement. Sometime after the hearing but presumably before 5 January 1981, the court rendered a decision and instructed plaintiff’s attorney to draft an order to be entered by 5 January. There is nothing in the record to indicate that the court rendered an oral judgment at the hearing or that defendant or his attorney were ever notified as to whether defendant was to pay child support, in what amount, or under what circumstances. In fact, the record is devoid of any indication as to exactly when the court rendered its decision. Defendant testified that he later learned from his at*720torney that the court had modified the award of custody but claims nothing was said about child support.

Next, it appears defendant’s attorney was notified that the action had been dismissed for the failure of plaintiff’s attorney to draft an order within the time required. The evidence tends to show that defendant was not aware that any orders were issued by the court in the case until he was served with the order to show cause in February 1982. There is no evidence to show that defendant or his attorney were ever notified of plaintiff’s motion to set aside the dismissal or the court orders of 11 June and 29 June 1981. Defendant could not willfully refuse to comply with an order of which he was not aware. Therefore, the court erred in making finding of fact number 8 and in finding defendant in contempt. Thus, the court’s order must be reversed.

Although defendant could not be held in contempt until he received notice of the June 1981 order, the order itself is still valid and defendant is still obligated to make the payments from the date ordered by the court. In the 11 June 1981 order, the court decreed that the defendant must pay $460 per month for child support beginning 1 January 1981 and on the first day of every month thereafter. Therefore, defendant must pay the child support that was due on 1 January 1981 and every month thereafter. If he has not yet done so, the appropriate remedy for plaintiff is to file a new motion in the cause seeking these arrearages.

Defendant also assigns as error the court’s issuance of the 11 June 1981 order when the action had previously been dismissed. He mistakenly argues that since plaintiff’s action had been dismissed pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure, no valid order could be made thereafter in the case. See Collins v. Collins, 18 N.C. App. 45, 196 S.E. 2d 282 (1973). To begin with, plaintiff’s action was not dismissed pursuant to Rule 41, rather it was dismissed pursuant to the court’s inherent power to perform its judicial functions. As the terms of the order clearly indicate, the action was dismissed because of the failure of plaintiff’s attorney to draft the order within the time required, and not because either party made a Rule 41 motion.1

*721Furthermore, the order dated 11 June 1981 was not based on a dismissed action. This order was not entered until after the court set aside the dismissal on 29 June 1981. Once the dismissal was set aside, a valid order could again be entered in the action. Thus, the 11 June 1981 order is valid. It is also clear Judge Bullock had the power to set aside the dismissal as G.S. 1A-1, Rule 60(b) authorizes the court to relieve a party from a final judgment, order or proceeding for any reason justifying relief from the operation of the judgment. G.S. 1A-1, Rule 60(b)(6). A motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion. Sink v. Easter, 288 N.C. 183, 217 S.E. 2d 532 (1975). There is no evidence that Judge Bullock abused his discretion in this matter, thus, we must uphold his decision.

We have considered defendant’s remaining assignments of error and found them to be without merit. Because of this and the fact that it appears unlikely that the alleged errors will occur again, we do not feel it is necessary to discuss them. The order of the court below dated 8 March 1982 is

Reversed.

Judges Hill and Phillips concur.

. In our opinion, the court may have unnecessarily dismissed the action. The more appropriate remedy for the court in a situation such as this, would be for the court to exercise its contempt powers relative to the attorney to secure compliance *721with the court’s order directing counsel to draft and present the order. Litigants should not be so drastically and summarily penalized for the easily correctable oversight of their lawyers.

Citation profile

Relationships

How this case has been treated — in progress