On Motion for Rehearing.
On our original opinion we set forth our construction of the divorce decree, as well as our construction of appel-lee’s motion seeking a modification of that portion of said decree relating to child support. We did not construe appellee’s motion as making an attack upon his contraer tual liability to contribute the sum of $Z00 per month to Alma Sue Mobley for the support of their two minor children until the children finished their schooling. We did construe the motion as one seeking a modification of the order directing the payment of $200 per month for child support under .compulsion of contempt proceedings as provided for in Article 4639a, § 1. Under this article, a person is not required to delay his assertion of' inability to pay the amount provided for in the original decree until he is actually cited for contempt, but may anticipate such action by suggesting a modification of the decree to the court, which, under the statute, has “power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require.”
While a decree or judgment based upon an agreement is generally interpreted like a contract between the parties and an agreement relating to the amount of child support, or one relating to facts from which the court may determine such amount, will be recognized, the power and authority to enforce a support decree by contempt proceedings is derived from the statute and controlled by the provisions thereof. A decree for child support based upon or embodying a contract possesses dual characteristics, but the procedural basis which permits enforcement by contempt proceedings is statutory and not contractual. In that particular, the order is subject to modification in accordance with the provisions of the statute.
In order to obviate any misunderstanding as to our holdings, we have decided to modify the decree appealed from by inserting therein the following proviso: “Nothing contained herein shall affect the obligations assumed by plaintiff, Robert N. Mobley, in the contract bearing date of May 5, 1947, made and entered into by and between said plaintiff and the defendant, Alma Sue Mobley, in contemplation of divorce, but the provisions of this decree shall relate only to the liabilities imposed upon plaintiff under and by virtue of the original decree dated June 3, 1947, and the provisions of Article 4639a, § 1, Vernon’s Ann.Civ.Stats., and which may be enforced by contempt proceedings.”
As this modification simply makes explicit our construction of the-decree, no change will be made in the taxing of costs.
Our order of affirmance will be modified as, above indicated. Appellant’s motion for rehearing is overruled.