Dechert v. Dechert

[142] By the Court, Coleman, J.: This is an appeal from an order made after a final decree granting the plaintiff a divorce and making an allowance for her own support and for the support of a minor child. Something more than a year after the decree mentioned had been entered, a motion was made to change its terms so as to disallow the item of $100 per month for the support of the child. Four grounds are stated in the motion in support thereof, namely: (1) That counsel for the defendant was instructed by the defendant not to consent to the allowance by the trial court of the item complained of; (2) that the said item so allowed by the court is in violation of the terms of an agreement made between the parties, prior to the trial of the case, settling the question of allowance for the wife and child; (3) that it is in violation of the terms of a certain trust deed executed by the defendant to secure a compliance with the terms agreed upon in said agreement settling the question of allowance for the wife and child; and (4) that the plaintiff committed a fraud upon the court. The court, after a full hearing on the motion, denied the same; hence this appeal. A motion has been [143] interposed to affirm the judgment, for the reason that there is no bill of exceptions in the record. The decree of divorce provides that it may be modified as to the allowance mentioned, and hence the court would have authority to modify it upon a proper showing (Sweeney v. Sweeney, 42 Nev. 431, 179 Pac. 638); but there is a wide difference between the modification of a decree in respect to such a matter upon the ground of changed conditions of the parties and the entry of a.different decree. This is an application to change the decree itself, and not to modify it because of changed conditions of the parties, or either of them. As to the first ground of the motion, it is not even here contended that the attorney who appeared for the defendant at the trial of the case violated his instructions. The query naturally arises whether the court, upon an application of this kind, can revamp its decree and enter a different one; also, whether the court is bound by an extrajudicial agreement of the parties as to an allowance for a minor child. But we do not think we can consider the appeal upon its merits. From the very nature of the application — that is, of the grounds thereof — to change the terms of the decree, it is apparent that no reliance can be based upon the record proper to sustain it, since none of the matters relied upon appear therefrom, or could appear therefrom; hence these matters must be brought to our attention, if at all, by a duly settled bill of exceptions. The purpose of a bill of exceptions is to bring into and make a part of the record the evidence taken and relied upon at the trial of a case. Unless the evidence is made a part of the record by a duly settled bill of exceptions, it cannot be considered by this court. This being an appeal from an order made after final judgment, the bill of exceptions must be settled as pointed out in Stats. 1915, sec. 6, c. 142, p. 165, which may be either by stipulation of the parties, or order of the trial j udge or of the court. There is no bill of exceptions in the record on appeal in this matter; hence we [144] cannot consider the appeal upon the evidence. Corcoran v. Dodge, 45 Nev. 406, 204 Pac. 879, and cases cited therein. No error appearing from the record proper, it is our duty to affirm the order appealed from. It is accordingly so ordered.