¶1concurring in the result.
¶2The simple problems raised by the motions involved in this appeal were inordinately confused by the parties and court inappropriately treating them as though they were complaints or other statements of a claim subject to the requirements of Rule 12, N.C. Rules of Civil Procedure, and by treating the hearings thereon as though they were non-jury trials under the provisions of Rule 41. Except for modifications that might be required by a change of circumstance affecting the welfare of the child or defendant’s financial ability, this action for alimony, child custody, and possession of the marital property was resolved by the consent order; and after it was entered, no claim or cause of action was left to either evaluate or try. Defendant’s “Motion to Divide Undivided Marital Property” instead of undertaking to state a claim or cause of action, as the plaintiff and the court assumed, was simply a motion for relief from a judgment or order under the provisions of Rule 60; for the order recited that the property of the parties had been finally distributed to their satisfaction and the motion asserted that through mistake the child’s pictures had not been divided and that such a division should be made. Rather than decide from the pleadings and the separation agreement whether the motion stated “a claim upon which relief can be granted,” the court should have determined from evidence whether a mistake about the pictures had been made. But this error and the equally erroneous finding that followed in its wake— that the motion had no good faith basis and attorney’s fees should be awarded plaintiff — is beyond correction since under the circumstances the order was a final one and no appeal was taken within the time designated.