The plaintiff appeals from an order denying her motion to punish defendant for a contempt for his refusal to pay installments of alimony directed to be paid by a final decree of absolute divorce. A sufficient demand and refusal are not questioned. The decree of divorce, which was entered on May 16, 1902, awarded alimony to the plaintiff at the rate of $120 a month, which the defendant was directed to pay. On the same day the parties entered into an agreement which recited the above-mentioned decree and the provisions thereof for alimony, and wherein plaintiff agreed, in consideration of the' sum of $5,000, then paid to her, to release “ the defendant of and from all claim for such or any alimony except as provided in Sec. II hereof.” By section 2 the defendant agreed that “ as and for alimony ” he would pay the sum of $40 per month for each of the twelve calendar months immediately succeeding May, 1902; the sum of $50 for each of the next succeeding calendar months, and so on, the payments increasing by $10 per month in each successive year until May, 1810, after which the full sum of $120 per month was to be paid. The contract provided that upon motion of defendant the judgment might be modified at any time to conform to the agreement. Mo such modification, however, appears to have been obtained. The contract then contains this " significant clause: “ This agreement is intended as a contract, which as such, may be enforced by either party against the other by any appropriate remedy in any proper jurisdiction. This clause is not exclusive of plaintiff s right to enforce the payment of her alimony in any mcmner which the law shall allowT The defendant has failed to pay the installments of alimony- as provided by said decree' and modified by the foregoing agreement for the months between September, 1907, and May, 1908, both inclusive. His defense to plaintiff’s demand, in which he has thus far been successful, is that the amount of alimony awarded by the decree would have amounted, at the rate of $120 a month, to only $8,520 up to May, 1908; that *614he had paid up to that time, including the lump sum of $5,000 paid as consideration for the foregoing agreement, the sum of $8,870, whereby as he insists no money whatever is now due to plaintiff. This contention on defendant’s part seems to me to proceed upon an entire misconception of the purpose and effect of the agreement between the parties. It did not purport to substitute the payments therein provided for in place of the alimony granted by the decree. Its effect was to leave that provision for alimony unimpaired, except that the plaintiff, in. consideration of a lump sum, agreed in advance to release defendant from the payment of all of each month’s allowance, except the several amounts specified in the 2d clause of the contract. These amounts he still remained liable to pay, not because of any new agreement to do .so, but because the decree so provided; and as to so much of the prescribed alimony he had not been released. His obligation to pay rests upon the decree; his partial release from that obligation is all that can be found in the contract, by which .he expressly reserves to plaintiff the right to enforce payment of her alimony, i. e., so much thereof as she had not released in any manner which the law shall allow. The contract does not speak of the $5,000 as a prepayment on account of alimony to become due, but even assuming that it was so intended, the parties carefully provided how it should be applied, that is, in.a graded reduction, over a period of ten years, of the monthly payments prescribed by the decree. But for the agreement the defendant would be required to pay the plaintiff much more than she demands. He cannot interpose the agreement as a shield against full liability and repudiate it as to the terms upon which such liability was reduced. If he had taken advantage of the authority reserved to him by the contract to apply for a modification of the decree, he surely could have obtained nothing more than a reduction of the monthly payments in accordance with the terms of the contract. He should not be held to less liability now.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Ingraham, J., concurred.
Order affirmed, without costs.