Tbis is an appeal from a judgment and an order of tbe district court of Ward county, dismissing contempt proceedings against tbe plaintiff and respondent and modifying an original order and decree of divorce.
On May 19, 1916, E. R. Sinkler commenced a divorce action against Curly Sinkler, bis wife. Answer was in due time interposed, denying tbe charge and asking for temporary alimony and counsel fees. On tbe 23rd of March, 1917, tbe defendant in tbe divorce action served an amended answer on tbe plaintiff therein and a cross-complaint alleging desertion, praying for absolute divorce, tbe custody of tbe children and for other relief. On tbe same day, plaintiff answered tbe cross-complaint, denying the allegations thereof generally. On tbe 23d day of March, 1917, tbe action was beard in Ward county. On that date tbe plaintiff and defendant entered into a contract effecting a settlement of their property rights in view of tbe pending divorce action and tbe possibility of a decree. By tbe terms of tbis agreement, tbe defendant in that action released all her interests in the real property of tbe plaintiff; tbe plaintiff agreed to pay to tbe defendant, in tbe event of a divorce, tbe sum of $300 when tbe decree was signed and tbe further sum of $250 to tbe counsel for tbe defendant; plaintiff agreed that bis wife should have as her absolute property certain specific personal property; and be would pay her $225 monthly during the term of her siatural life “as and for permanent alimony.” Tbe defendant, in consideration thereof, agreed to support tbe children and keep a home for rhem without charge to them until they should be twenty-five years of age. It was further, in effect, stipulated that tbe agreement should be construed as a confession of judgment if tbe husband defaulted in any payments and that judgment might be entered in tbe district court of Ward county for each and every instalment in default upon tbe affidavit of Mrs. Sinkler stating tbe amount due and unpaid, which affidavit *1146was to be submitted ex parte to tbe district judge and an appropriate order for judgment made thereon and a judgment entered by the clerk of the district court accordingly. Judgments so entered were to become liens upon the real property of the plaintiff and ordinary execution had thereon. It was further stipulated, in case a decree of divorce were made, that the court should decree in full payment of all claims by defendant against plaintiffs property as permanent alimony to the defendant the sum of $225 monthly, payable as stipulated. The agreement contained the following stipulation: “Neither party shall at any time apply to any court to either decrease or increase said alimony (hereby fixed at the sum of $225 per month).” The contract provide! that the stipulation just quoted should be and it was in fact incorporated in the decree.
On the 23d of March, 1917, the court made findings of facts and conclusions of law generally in favor of Mrs. Sinkler for a divorce on the ground of desertion. The sixth finding is hereinafter set forth. The fifth conclusion of law is as follows:
5. “That as permanent alimony the defendant should-be awarded the sum of $300 payable upon the entry of this decree (and the further sum of $250 as and for counsel fees) and the further sum of $225 for each and every month during the life of the defendant, payable on the first day of each month, commencing with the first day of April, 1917, said monthly payments should not be increased or diminished at anj-' time or by any court upon the application of either party pursuant to the written agreement of the parties of said action, fixing said alimony.”
On the 23d of March judgment was entered in conformity with the finding and the order of the court.
The plaintiff paid the defendant, according to the agreement and the decree, the sum of $300 and $250 to her counsel. Certain other payments were made, but plaintiff defaulted during the years 1921 and 1922, and, acting under the stipulations in the contract, judgments were entered against the husband in AVard county on July 12, 1921 for $525.25, and on December 27, 1921, for $934.82. Executions were issued thereon and levies made on real property of the plaintiff.
On the 17th of January, 1922, the plaintiff being still in arrears under the decree, Mrs. Sinkler applied to the district court for an order *1147requiring plaintiff to show cause why he should not be adjudged guilty of contempt for failure to pay according to the decree. This order was returnable on the 26th of January, 1922. On January 20, 1922, the plaintiff served notice on the defendant that on the return day for the order aforesaid in the contempt proceedings, he would apply to the court for an order modifying the judgment entered in the original divorce action, on the 23rd of March, 1917, and supported such application by his own affidavit and the files in the action. It is not necessary to set out in full the detailed statement of facts in the affidavit upon which the plaintiff asked the court to modify the original decree as to the payment of $225 monthly. In general, it is based upon the allegations that the plaintiff’s earnings as a lawyer have decreased very materially; that his law business has not been lucrative and that he cannot earn an amount sufficient to pay according to the decree and to support himself and his present wife at the same time.
On the 26th of January, on the return day, the defendant replied to the plaintiff’s affidavit, denying generally the allegations of inability made by the plaintiff and asserting that the original decree was based upon a contract fairly entered into and setting up other facts not necessary to detail here.
Upon the affidavit and moving papers aforesaid, the matter was heard on April 28, 1922, and the court made its order dismissing the contempt proceedings and modifying the original decree so as to release the plaintiff from the obligation to pay defendant $225 per month during her natural life and permitting and directing plaintiff to pay instead the gross sum of $6,000, in full as settlement of property rights between the parties. The court found that, because of adverse financial conditions, the plaintiff was unable to earn enough to make payments in accordance with the original decree. The gross sum of $6,000 ordered to be paid included the amount of the two judgments heretofore referred to.
On this order of the court judgment was duly entered on the 21st •of June, 1922 and Mrs. Sinkier, in this appeal, challenges the correctness of the order and of the judgment.
Our statute, § 4405, Oomp. Laws 1913, gives the court control over-divorce decrees, and the authority to modify judgments in divorce actions. The statute reads as follows:
*1148Sec. 4405. Support. “When divorce is granted, the court shall make such equitable distribution of the property of the parties thereto as may seem just and proper and may compel either of such parties to provide for the maintenance of the children of the marriage, and make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.” See Rindlaub v. Rindlaub, 28 N. D. 168, 147 N. W. 725.
Section 4411, Comp. Laws 1913, provides that either husband or wife may enter into contracts with the other and with other persons respecting property to the same extent as if unmarried. After marriage, the wife has the same rights with respect to property, contracts and torts as before marriage. Section 4412, Comp. Laws 1913, gives husband and wife the power to contract with reference to maintenance during separation.
The right of husband and wife to contract with respect to the division of property in the event of a divorce has also been recognized by the courts. The contract entered into in this case would be enforceable in equity between the parties if not incorporated in the decree. Nelson v. Vassenden, 115 Minn. 1, 35 L.R.A.(N.S.) 1167, 131 N. W. 794. The rule is that agreements respecting property rights, the divorce proceedings be pending, are not void as in contravention of good morals or public policy unless their purpose or effect be in some way to facilitate divorce proceedings. Burgess v. Burgess, 17 S. D. 44, 95 N. W. 279; Ward v. Goodrich, 34 Colo. 369, 2 L.R.A.(N.S.) 201, 114 Am. St. Rep. 167, 82 Pac. 701. Such agreements, when reasonable, when fairly entered into, without fraud or misrepresentation, while they are carefully scrutinized by the courts, are, when confined to the adjustment of property rights, binding and will be enforced. Amspoker v. Amspoker, 99 Neb. 122, 155 N. W. 602; Phillips v. Phillips, 39 R. I. 92, 97 Atl. 593, 12 L.R.A.(N.S.) 848, note; Nelson v. Vassenden, supra.
In the Vassenden Oase, Judge Simpson, speaking for the supreme court of Minnesota, says that it is desirable that the parties submit the contract to the court for approval because they are thereby relieved latex” from the necessity of proving that the contract was fairly entered into *1149and was not fraudulent or collusive. That is what the parties did in the case at bar. They submitted the contract to the court, obtained the approval of the court thereon and the incorporation of the material portions of the agreement with reference t.o the division of property in the decree. The defendant and appellant in this action released her claim to any interest in the real property of her husband in consideration of a cash payment, some furniture transferred to her, and certain monthly payments to her during her natural life. She did not ask the court to award her the homestead or any portion of the property at that time owned by her husband who was and is a practising lawyer at Minot. It appears that at that time his practice was lucrative and that his income then was such that to pay her $225 a month did not seem a serious burden to him. It now appears that it has become a burden, because of financial stringencies which may or may not be permanent, for the plaintiff to make such payments. It further appears in the evidence that the property owned by the plaintiff and respondent in Ward County and elsewhere has deteriorated in value and perhaps has ceased to be of substantial value because of circumstances not material to inquire into at this time. Lands have been sold for taxes, tax liens have been permitted to attach, and the like.
The primary question in this case is whether the district court had power to modify the decree of divorce entered in 1917, under all the facts and circumstances of the case; the correctness of the order vacating the contempt order is also challenged.
It is not to be doubted that the court, under the statute and regardless of any contract of the parties to the contrary, at all times retains control of the decree of divorce insofar as the rights of children are concerned. The court likewise may relieve the parties from contempt, if the circumstances require. The trial court, in the exercise of a sound discretion, had the right to relieve Mr. Sinkler from contempt in this case. In this respect no error was committed.
Whether contempt proceedings may, under any circumstances, be maintained against Mr. Sinkler, in view of the stipulation of the parties, on which the decree is founded, and the availability thereunder of the remedy of execution, we do not now decide. That question is not necessarily involved. That question must be answered in the light of the facts and circumstances when it is properly raised.
*1150Is tbe decree made by tbe district court in 1911, one that may be modified fundamentally by tbe court after five years, under § 4405 ? In so far as it relates to tbe support of tbe children or tbeir custody, or to alimony, that is, support for tbe wife, it can. Is not the decree, however, in reality, a judgment distributing tbe property, real and personal, of tbe parties ? If it is, on principle and authority, tbe court erred in modifying it, as it did, in 1922.
In construing a judgment, effect should be given to every word and part of it; of two possible interpretations, that will be adopted which will harmonize with the facts and the law of the case, and which renders it more reasonable, effective and conclusive. A construction acquiesced in by the parties will not be changed without good reason. A judgment should be interpreted with reference to the findings of the court; and if the judgment be ambiguous, recourse may be had to a duly executed stipulation of the parties. 23 Cyc. 1102, 1103; Thayer v. McGee, 20 Mich. 195. With these principles in mind, it becomes necessary to refer to some of the facts bearing upon the intentions of the parties and the real purpose the court intended to accomplish by the decree.
The contract between the parties upon which the award of permanent alimony, so-called, is based, clearly indicates an intention to adjust finally all the property rights of the parties to- the marriage. The contract, in the preamble thereof, recites that the parties have made and intend thereby to make a “full and complete settlement of the property rights between the plaintiff and defendant.” It is further agreed in the contract that the wife shall convey to the husband her interest in specified real property in Minot and also some farm land. The contract further provided that the wife slumld receive certain specified personal property, namely, all of the furniture in the so-called “Sinkler Flat” in Chicago; the husband also agreed to pay in cash the sum of $550 and in addition $225 per month during the life of the wife. The wife, in turn, agreed to maintain a home for the children where they might live without expense to them until they arrived at the age of twenty-five years. Simultaneously with the making of the contract and the decree of the court, the wife conveyed all her interest in the real property described in the contract and she has at all times since maintained a home for the children of the marriage without expense *1151to them. She released her right under § 4406/ Com.p. Laws 1913, as the innocent party, to have the homestead assigned to her, either absolutely or for a limited period.
The court in the findings of fact found as follows:
6. “The court further finds that the property rights of plaintiff and defendant have been adjusted between them by a written instrument duly executed by both plaintiff and defendant and that such adjustment of properly rights between said parties is hereby ratified and confirmed by the court and that the provisions hereinafter set forth as to permanent alimony, counsel fees and suit money is based thereon.”
In the order for judgment the court, further following the contract, says: “Said monthly payments should not be increased or diminished at any time or by any court upon the application of either party, pursuant to the written agreement of the parties to said action, fixing said alimony.” The parties to the contract attempted to waive the right, if any, to apply to the court for a modification of the decree, insofar as the adjustment of property rights was concerned. If the stipulation be construed as a waiver by each party of the right to ash to have the decree modified in this respect, would it be competent for them to do so? See Compton v. Compton, 111 App. Div. 923, 97 N. Y. Supp. 618; would it be in any manner an attempt to oust the courts of jurisdiction? See Palmer v. Lavers, 218 Mass. 286, 105 N. E. 1000. The parties had submitted the contract to a court of competent jurisdiction and obtained an approval of the same. • They had had their day in court and it may be doubted if this stipulation is not binding as a waiver by both parties of asserting the right of review as far as the property settlement is concerned. Children, of course, coidd not be affected. We do not decide what the effect of this stipulation is, however, as it is not necessary in the view we take of the case. In any event, this stipulation, in the interest of repose, is some evidence that the parties themselves intended to effect a complete property adjustment and distribution. See 3 C. J. 661, 662, and note.
The decree followed the findings and the conclusions in all material and substantial particulars.
It seems clear from the foregoing statement of facts that the parties intended to adjust finally and fully all property rights and settle all claims arising out of the marriage relation. It is clear, also, that *1152the court, in making the decree, intended to and did make a final adjustment and settlement of property rights and claims between the parties. It is in other words, evident that, on principle, insofar as the property rights of the parties were adjusted in the decree, the decree rests on the same basis as if the court had awarded a gross or lump sum to the wife in lieu of her interest in the property of her husband, of which the court, in a divorce action, could properly take cognizance. The award to the wife, in view of the findings and of the circumstances, cannot properly be construed as alimony in the true technical sense of the word, namely, an allowance for the support and maintenance of the wife alone. We are clear that the court intended, and that such is the effect of the decree, to settle finally, upon the basis of the agreement submitted to it, all the property rights of the parties. Under such circumstances, justice and a regard for the intent of the parties and the purpose of the court requires that the same effect be given to the decree as if a gross sum had been awarded to the wife, or real and personal property divided or apportioned between them.
Under § 4405, the court may, when divorce is granted, (1) equitably distribute the property of the parties, no distinction being made between real and personal property; (2) compel either party to provide support for the children of the marriage; and (3) make a just allowance to the other party for support, during life or for a shorter period. It is, therefore, clearly the duty of the court, when proper foundation is laid in the pleadings, supported by legally sufficient proof, to distribute equitably the real and personal property of the parties to the marriage. Such portion of the decree, however, is not, in any proper sense, alimony. Our code does not use this well understood “term of art” (Calame v. Calame, 25 N. J. Eq. 549) except in §§ 4402 and 4403, in dealing with support, maintenance or suit money, during the pendency of the divorce proceeding. Alimony is the allowance made to a woman for her support “out of the husband’s estate.” Bl. Com. 441. It is not to be understood as involving a distribution of the estate by force of law. Bouvier’s Dist. title “Alimony.” “A decree for alimony must secure to the wife an annuity or other personal right to maintenance. An absolute right to property cannot be decreed in a case for alimony.” Maguire v. Maguire, 7 Dana, 181.
It seems clear, therefore, that a decree under § 4405, distributing *1153property, awarding support and providing for the children of the marriage, is something more than a decree for alimony, in its proper legal signification. In so far as the court awards money in the decree, whether payable monthly, annually, or at other stated periods, for the support of the wife, such award is in the nature of alimony and, it may be conceded, generally, may be modified as changed circumstances require, under the concluding clause of this section. The same is true with respect to the provisions of the decree for the support or custody of the children of the marriage.
When a court decrees a distribution of the real or personal property-other than money — of the parties, a different situation is presented. It may, and usually will after the lapse of time, become impracticable and often utterly impossible for the court to modify the decree in this respect. Neal property is convoyed or encumbered; personal property is wasted, transferred or completely dissipated. A redistribution of property, under such circumstances, becomes not only theoretically difficult, but practically impossible. The courts have, therefore, held, notwithstanding statutes giving control over the decree with right to modify the same, that a judgment decreeing specific real property or finally distributing the estate, is a final judgment and cannot be modified, except, of course, in the same manner and on the same grounds as other judgments. 19 C. J. 272, and cases cited.
The supreme court of Nebraska in the case of Beard v. Beard, 57 Neb. 754, 78 N. W. 255, says:
“The alimony awarded the wife in this divorce suit was a sum in gross meant, and intended by the court, to be in lieu of her dower, homestead, and all her other rights and claims against the property of the husband. It was, in effect, a decree awarding the wife a money judgment for her share of the common property of the husband and wife upon the dissolution of the marriage; and where the court granting the divorce awards the wife a homestead, or other rights in the husband’s property, and adjourns sine die, such judgment becomes a positive, final, and conclusive one, and cannot be changed or modified after the term at which it was rendered, except for the causes and in the same manner that other judgments may be modified.”
The statutes of Nebraska at the time gave the court the power to modify the divorce decree as to alimony or other allowance for the *1154wife and children, or either of them, substantially to the same effect as § 4405, Comp. Laws 1913. See also 19 C. J. 272; Kraft v. Kraft, 193 Iowa, 602, 187 N. W. 449. The court in the order for judgment and in the decree uses the expression “permanent alimony.” We do not think that the term “alimony” was there used in the technical sense. That would be too narrow a construction to give the decree in view of the findings of the court and the stipulation of the parties. As heretofore pointed out, § 4405 does not use the term. We think that the court, haying in mind and before it the contract of the parties according to the terms of which the wife transferred all her interest in the husband’s property and assumed definite obligations to support the children, had in mind that a decree for the sum of $225, per month, together with the cash payment and the award of specific personal property, with a provision in the contract for the confession of judgment and enforcement thereof by execution as in cases of ordinary judgment, should be considered in legal effect the same as if an allowance of a gross sum had been made, or a judgment entered, making a final distribution of the estate of the parties.
Both sides presented elaborate and able arguments upon the right of the court, under § 4405, to modify the decree when originally based, as far as the provisions therein for the support of the wife are concerned, upon the agreement of the parties entered into without fraud, collusion or undue influence. This interesting question we find it unnecessary to decide. In some, at least, of those jurisdictions where the right to modify the decree entered upon agreement of the parties as to support of the wife, is held to exist, such power of subsequent modification is denied when the judgment decrees real property or is a final adjudication of property rights. This appears in the citations of authorities heretofore made. Some of the authorities cited as tending to support the view that such power of modification does not exist when the decree, with respect to the provisions thereof for the support of the wife, is founded on a valid contract, are as follows: Henderson v. Henderson, 37 Or. 141, 48 L.R.A. 766, 82 Am. St. Rep. 741, 60 Pac. 597, 61 Pac. 136; Pryor v. Pryor, 88 Ark. 302, 129 Am. St. Rep. 102, 114 S. W. 700; Storey v. Storey, 125 Ill. 608, 1 L.R.A. 320, 8 Am. St. Rep. 417, 18 N. E. 329; Julier v. Julier, 62 Ohio St. 90, 78 Am. St. Rep. 697, 56 N. E. 661; Stanfield v. *1155Stanfield, 22 Okla. 574, 98 Pac. 334. See also 13 C. J. 464; 1 R. C. L. 947. Tlie following authorities are frequently cited in support of the contrary view: Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580, 13 Ann. Cas. 293; Blake v. Blake, 68 Wis. 303, 32 N. W. 48; Id. 75 Wis. 339, 43 N. W. 144; Camp v. Camp, 158 Mich. 221, 122 N. W. 521; Warren v. Warren, 114 Minn. 389, 131 N. W. 379, 116 Minn. 458, 133 N. W. 1009.
We are, therefore, of the opinion that the decree of the court entered in 1917 was in fact, and was intended by the court and understood by the parties to be, a final adjustment of their property rights to the same extent as if a gross sum or money judgment had been awarded, or a general distribution of the estate had been made, and that the court is now without power to amend the decree and to wipe out the monthly payment stipulated to the wife and substitute a gross sum therefor.
The judgment of the trial court is reversed and the case is remanded with direction to proceed in conformity with this opinion.
CheistiaNsoN and Nuessle, JJ., concur. Birdzell, J., concurs.