ON MOTION TO VACATE FORMER ORDER FOR ALLOWANCES PENDING APPEAL, ETC. June 6, 1949. 206 P.2d 753. *Page 73 OPINION On March 14, 1949 we granted the motion of the respondent wife for certain allowances pending appeal. As to the facts and circumstances under which the order was made and as to the extent of the order, see our former opinion, 66 Nev. 67, 203 P.2d 614.
1. The appellant husband now asks this court to *Page 74 vacate that order, to relieve the appellant from payment of any further allowances, to order the return to appellant of the sums heretofore paid to respondent under that order, and for a further order changing the custody of the minor child or children now residing with respondent and placing the custody of such child or children with appellant. The grounds of the motion are that the best interests of the child or children would be best served thereby, that respondent is not a fit or proper person to have such custody, that the allowances ordered by our former order were obtained by fraud, fraudulent representations and by the withholding of and concealment of facts which, if presented, would have defeated respondent's application for allowances, thus constituting a fraud upon this court. The facts most strongly relied upon in support of the motion were the marriage of respondent to one David Erquiga on March 16, 1949, two days after our order for allowances of March 14, and six days after the presentation of the argument and motion for allowances. The certificate of said mariage of March 16, 1949 was recorded April 8, 1949. On April 1, 1949 a child was born to respondent, which child, as shown by the birth certificate, was named David Erquiga, Jr. The father is recited to be David Erquiga. The child was accordingly conceived about July 1948. On December 22, 1948 respondent filed her motion and affidavit for allowances, and on March 10, 1949 filed a supplemental affidavit for allowances. During the oral argument counsel for respondent conceded that she would be entitled to no allowances for her support after her mariage to David Erquiga, March 16, 1949, and that our former order for the payment of $250 a month should be vacated so far as the same applied to any sums payable after March 16, 1949. As to such payment, the order is accordingly vacated. It was not made clear whether any of the $250 monthly payments were made after March 16, 1949. If any such *Page 75 were made, it is ordered that the same be refunded by respondent to appellant.
Only one of the minor children of the parties continues to reside with respondent, namely, a daughter Margaret, going on thirteen years of age. We do not believe that a sufficient showing has been made to justify a change in her custody.
Pursuant to our order of March 14, 1949, appellant paid respondent's accrued hotel bill in the sum of $465.41 and paid respondent's attorneys the sum of $1,000 allowed by us as attorney fees on the appeal. Appellant strongly urges that these sums should be refunded, first, because of respondent's misconduct and, secondly, because she was not in necessitous circumstances, the concealment of which facts was a fraud upon this court. It is further urged that we should probably not have made our order of March 14 had we then known that respondent, eight months pregnant with Erquiga's child, had planned her immediate marriage to him.
2, 3. The motion is not without merit. Respondent has made no attempt either to deny or to explain her relations with Erquiga or his paternity of her child. Indeed the marriage certificate and the birth certificate (copies of which are annexed as exhibits to the affidavit supporting appellant's motions) speak for themselves. In support of the claim that it now appears (and would have appeared at the time of our former order but for the alleged fraudulent concealment) that respondent's present husband is financially able to finance respondent's defense of the appeal, appellant has filed an affidavit executed by one of his attorneys on information and belief, to the effect that David Erquiga conveyed certain real property in 1946 for approximately $13,000, of which $6,000 was paid in cash and $7,000 was payable in installments and secured by a deed of trust under which Erquiga received $2,200 in November 1948, and that a balance of $3,000 and interest is still due thereunder, *Page 76 and that he is possessed of other means or securities of considerable value. Such affidavit was filed at the time of the argument of the pending motions and respondent has made no request for an opportunity to file any affidavits in response.
Counsel for both parties appear to agree that the entire matter lies within the sound discretion of this court. Indeed, ever since Lake v. Lake, 17 Nev. 230, 30 P. 878 (see cases cited in footnote to our opinion on the former motion), such has been the rule in this state. We are not called upon to condone respondent's relations with Erquiga. Statements made in the course of the oral argument indicate that the nature of that relationship enters largely into the 600 page record on appeal. We have not read that record, as the merits of the appeal are not before us. Her concealment of the facts that at the time she filed her affidavit in support of her motion for allowances she was in the eighth month of her pregnancy is more serious. That such situation, if it had been brought to our knowledge at the time of the arguments of March 14, 1949 on the motion for allowances would have affected the extent of our order, does not, however, necessarily follow. Since that argument and since our order of March 14, appellant has filed his opening brief on appeal. It is a document comprising ninety-seven typewritten pages. Its index (which is all we have read) indicates that many important and serious points are raised and we are loath to order the return of any part of the $1,000 attorney fee heretofore allowed for the defense of the appeal. We feel the more satisfied in reaching this conclusion for the reason that upon the submission of the appeal upon merits we shall be in position, and the right is hereby reserved, to remedy any inequities that may be shown. Nor are we satisfied (despite the failure of respondent to deny the allegations made by appellant's attorney on information and *Page 77 belief, as to the financial ability of respondent's present husband, and despite her failure to request an opportunity to deny the same) that the affidavit as to Erquiga's ability to pay is sufficient to counteract the effect of respondent's affidavit as to her necessitous circumstances.
On the presentation of respondent's motion to vacate the former orders, etc., appellant applied, on shortened notice, for an order for an additional allowance of $250 attorney fees to defend the present motion. We are not inclined to make an additional allowance for the purpose.
It is accordingly ordered as follows:
1. Appellant's motion for an order changing the custody of the minor child or children remaining with respondent is denied.
2. Appellant's motion to vacate the order for the payment to respondent of $250 per month for her support is granted, as to any future payments.
3. If any of such $250 monthly payments, or any part thereof, has been paid to respondent subsequently to March 16, 1949, the date of her marriage to Erquiga, such payment is ordered refunded to appellant.
4. Appellant's motion for an order for the return of the $1,000 attorney fee paid under our former order and his motion for the return of the sum of $465.41 for respondent's hotel bill are denied.
5. Respondent's motion for the allowance of an additional $250 attorney fee for the opposition of appellant's motion is denied.
6. No allowance of costs or fees will be made on the present motions.
HORSEY, C.J., did not participate. *Page 78