(partly concurring; partly dissenting). This cause was argued and submitted before this court on October 4th, 1922. This court, as then constituted, in December 30th, 1923, through an opinion of the Honorable George M. McKenna, district judge, sitting in place of Mr. Justice Grace, disqualified, rendered its decision. It ordered that the order and judgment of the lower court so far as it related to a modification of the original decree of divorce entered on the 23d day of March, 1917 be reversed; that the appellant recover costs on this appeal and such additional sum as suit money and attorneys’ fees as the trial court in its discretion may award. The writer, together with another associate justice, then specially concurred in the decision then rendered. This special concurrence was as follows: “I am of the opinion that the contempt proceedings upon the record were within the sound discretion of the trial' court and should not be disturbed. I am further of the opinion that upon the record the judg*1156ment for alimony should not be disturbed. Without deciding whether, upon the contract made, the judgment for alimony entered pursuant thereto may bo modified under the equity powers of the court. I am of the opinion that the evidence is insufficient to warrant interposition of equitable powers to modify the terms of alimony contained in the decree of divorce. The question of the amount of attorneys’ fees and suit money to be allowed the defendant oil account of these proceedings should be referred to the trial court for the exercise of its discretion concerning the amount and the time of payment.”
Pursuant to a petition, this court, as now constituted, on Jan. 30th, 1 923, ordered a rehearing which was had on Peb. 10th, 1923.
I adhere to my. conclusions, heretofore presented. I desire to supplement the same as follows;
In May, 1916, plaintiff instituted an action for divorce. In July, 1916, defendant answered asking for dismissal. On March 23d, 1917, defendant, in an amended answer, set up a cross-complaint. Then, the parties made a written agreement concerning settlement of their respective property rights. Therein, the defendant wife agreed to convey to the plaintiff husband certain real property in Minot. It was agreed that the wife should retain the household furniture in a flat in Chicago. Plaintiff agreed, upon the signing of a decree of divorce, to pay defendant $300 and $250 attorneys’ fees and thereafter $225 monthly (hiring the life of defendant as permanent alimony. Defendant agreed to maintain a home for three children, the issue of the marriage. It was further stipulated and agreed that neither party shall at any time apply to any court to either decrease or increase such alimony. That, in the event of default, the agreement should stand and be construed by the court as a confession of judgment on plaintiff’s part and that judgment might be rendered for each and every installment of alimony due and unpaid upon the affidavit of defendant stating the amount so due and unpaid, and thereupon such amount should become a lien upon all property of plaintiff. It was further agreed that,, in the event that judgment should be entered in defendant’s favor, the court should decree, in full of all claims -against plaintiff’s property, permanent alimony to defendant in the sum of $225 payable monthly, and such decree should continue the provision that the parties to the action had agreed upon the amount of such alimony and that they further had *1157agreed that neither party shall have the right to apply to any court to either increase or diminish such alimony. On the same clay, the divorce proceedings came up for hearing in the district court. Findings were made in favor of the defendant. These findings ratified and confirmed the agreement between the parties heretofore stated. They awarded to defendant custody of the minor children, $2150 attorneys’ fees, $800 in cash, $225 payable monthly during the life of the defendant commencing April 1st, 1917. They provided that such monthly payments shall not be increased or diminished at any time by any court upon the application of either party pursuant to the written agreement of the parties to the action, fixing such alimony. Thus, on the same day, pursuant to these findings a decree of divorce was entered. Plaintiff, after the expiration of ninety days fixed by the decree, re-married and has since resided in Minot following his profession as an attorney. Defendant and the children have resided in Chicago. She has complied with the terms of the decree by providing them with a home and superintending their education. Plaintiff paid to defendant $300 upon entry of the decree, and $250 counsel fees and continued to pay the further sum of $225 per month until the year 1921. He has paid a total of $11,250 including $525 paid in 1921. In addition plaintiff has paid to the children small sums from time to time aggregating $494.50. Plaintiff has paid no amount during the year 1922.
In 1921 defendant instituted proceedings to recover judgments for the alimony then due. Judgments were entered, in June 12th, 1921, for $525.25 and, on December 27th, 1921, for $934.82. An execution was issued upon the first judgment and levy-made upon some 200 acres of plaintiff’s land. The same was sold and sheriff’s certificate issued to defendant. On Jan. 17th, 1922, defendant made application for an order, to show cause why plaintiff should not be adjudged to be in contempt. In response thereto plaintiff moved the court for an order modifying the original decree. As grounds therefor, he alleged that he was practically insolvent and unable to pay his debts; that by reason of the financial stringency he had been unable to earn as much money as formerly. He submitted a property statement showing that he owned some 520 acres of farm lands, mortgaged for $6,800 wherein his equity was about $2,500; also that he owned three dwelling houses in Minot in which he had now an equity of about $2,500. He further *1158stated that the taxes were delinquent for the past three or four years and that he cannot pay the taxes; that he has an equity in some other real estate that does not exceed $2,000; that he is indebted to various persons in the sum of about $5,000; that he is only able, in his law business, to keep his business and household going; that he is able to borrow no more than $5,000 with which to make settlement of all alimony. Defendant resists such application upon the ground that plaintiff was bound by the former contract and decree entered. She controverted the statements that plaintiff was insolvent or unable to pay his debts. She asserted that she was fifty-one years old and under ordinary expectancy would be entitled to receive $30,000 or $40,000 as a lump settlement or payment under the original decree; that she is not able-bodied or able to work and is in poor health through her years of labor as plaintiff’s wife in assisting him to accumulate his property. After a hearing, the trial court, in June 21, 1922, made its findings and order to the following effect:’ That plaintiff had not wilfully or intentionally failed to meet the payments in the original decree; that his failure is due to possession of insufficient cash; that this has been brought about by six successive crop failures in this country and the fact that there is very little money in circulation so that the proceeds of plaintiff’s business has shrunk and is now barely sufficient to provide him with the necessaries of life and to meet current expenses; that by reason of the present financial condition of the country and of the conditions existing in this country during the past six years it is impossible for the plaintiff to meet the payments required in the original decree and he is entitled to have the judgment modified concerning payment of alimony so as to direct plaintiff to pay defendant the full sum of $6,000 as permanent alimony in lieu of the monthly payments originally ordered, to be paid as follows: Plaintiff shall pay the judgments of July 12th, 1921, $525.25, and the judgments of December 27th, 1921, $934.82, and the balance, $1,000 on January 1st, 1923, $1,000 on July 1st, 1923, $1,000 on January 1st, 1924, $1,000 on July 1st, 1924, and $539.93 on January 1st, 1925. It was further found that plaintiff was not in contempt. Accordingly, the original decree was modified.
Defendant, before this court, challenges the order and judgment of the trial court upon three principal grounds:
*1159(1) That the trial court was without jurisdiction to modify the original decree.
(2) That, in any event, it had no authority to modify such decree, not attacked upon grounds of fraud or other equitable grounds.
(3) That, in any event, the trial court erred, upon the record, in awarding a lump sum of $6,000 instead of the monthly alimony fixed in the original decree.
In my opinion it is unnecessary to consider or determine the question, concerning which there is a divergence and variety of authority, namely, whether the court, in any event, has the power to either increase or decrease the permanent alimony awarded in' the decree; Plaintiff is an able lawyer who has been successful financially at the Bar. At the time when the decree was rendered he was enjoying, comparatively considered, a large and lucrative practice. This continued, in varying degrees, until about the years of 1921 and 1922' when payl ments to his wife practically ceased. Until that time the financial ability of-the plaintiff to pay the award was not questioned. It may be noted that the reason for modification of the original decree, pursuant to the order of the trial court, is based upon the fact that the plaintiff has insufficient cash through crop failures and economic conditions existing in the state and country. There is no showing that plaintiff’s earning ability has decreased or that his health has suffered any impairment. Upon the record his earning ability, his legal learning, ripened by years of experience, remains the same. His financial status is impaired at present by reason of surrounding economic conditions. In this regard it may not be overlooked that these press not alone upon the plaintiff. Nevertheless, the trial court, through the modification made, requires plaintiff to pay to defendant the sum of $6,000 in certain payments up to January 1st, 1925, which average, in amount, about $200 monthly, whereas, the original decree provides for the payment of only $225. In other words, although the economic conditions and the present financial status of plaintiff have placed him in a position where he has insufficient cash to meet current monthly payments, yet the court modifies the original decree in such a manner as practically to provide that plaintiff shall, nevertheless, in his present condition, make approximately the same payments, with the further condition that thereafter he shall be relieved from all further liability. *1160In my opinion, wliore a fair and equitable agreement lias been made between the parties without fraud or imposition, which served tO' act as a basis for the distribution of the accumulations of a family during the major portion of an ordinary lifetime, it would be inequitable indeed to set aside an award so based because now plaintiff happens, temporarily, to be in a position of need, and not to recognize a corresponding reward that defendant should have had when plaintiff was in prosperity. Again, it would be inequitable to presume that plaintiff, with his present standing as a lawyer and innate earning ability, would not be able again, under normal conditions, to be as successful and prosperous as he was in the days when the decree was rendered.