specially concurring.
I reluctantly concur with the majority’s decision to remand this case for reconsideration of the amount of support payable by R.W. to Gerridee. My inclination was to reverse the trial court, thus denying the modification sought by R.W.
While I agree that despite the parties’ agreement, a court may modify a judgment based on a material change of circumstances, this Court has said that when a decree is based on an agreement, rather than the court’s findings, the trial court should be more reluctant to revise it. Eberhart v. Eberhart, 301 N.W.2d 137, 143 (N.D.1981). I am also of the view that the material change of circumstances should be something that was not contemplated by the parties. As is stated in the majority opinion, it was definitely contemplated by the parties that Gerridee would seek employment. It is also obvious that it was contemplated that her employment might yield her more than $1,290.00 per month. Otherwise, there would have been no purpose for the provision that R.W.’s payments would be reduced by one-third of Gerridee’s gross earnings but said reduction would in no event exceed $430.00 per month. As is pointed out in the majority opinion, Gerri-dee’s income became a great deal more than that. Obviously, at some point the amount of income could rise to a level above that which was contemplated by the parties at the time of the divorce settlement. While I am not sure that I would have so found, had I been the trier of fact in this case, I agree with the majority opinion that the trial court’s finding in this respect is not clearly erroneous.
The next consideration is the modification which was ordered by the trial court in this case. As is stated by Justice Meschke in the majority opinion, quoting from Lipp v. Lipp, 355 N.W.2d at 819: “If a supported spouse is not to be penalized ‘for her initiative and ... incentive for self betterment,’ her agreed support should not be reduced simply because she has improved her financial ability.” This is a matter of concern in this case in that it appears that the trial court overlooked an important provision of the settlement agreement in making its modification. The settlement agreement not only limited the reduction to $430.00 per month — it also contained the limitation that no more than one-third of Gerridee’s salary would serve to reduce R.W.’s support obligation. This provision was obviously placed in the agreement to provide incentive for Gerridee to improve her financial ability. Accordingly, it seems *928to me that the trial court’s modification of support in this case should have limited the reduction of support to one-third of Gerri-dee’s earnings which would have resulted in a maximum reduction of $933.00 (one-third of the $2,800.00 salary) rather than a total reduction of $1,730.00 which was ordered. It appears to me that the order of the trial court would certainly tend to destroy any incentive for Gerridee to strive to better herself financially. Had she sought employment that would have brought her up to the level of only $1,290.00 per month, she would have been receiving almost the same amount of money as she would under the trial court’s order even though she is making $2,800.00 per month. She would be receiving $1,290.00 per month plus $2,000.00 ($2,430.00 minus the $430.00) for a total of $3,290.00. After the trial court’s order, she receives the $2,800.00 salary plus $700.00 per month from R.W. for a total of $3,500.00. Therefore, as a result of her earning an additional $1,510.00 per month, she actually realizes only an additional $210.00 per month. This result certainly conflicts with the obvious purpose of the one-third limitation, that being to provide some incentive for Gerridee to better herself. Accordingly, it is my view that upon remand the trial court should not only consider the retirement needs of Gerridee but also the limitation contained in the divorce agreement which provided that any reduction of R.W.’s support obligation would be limited to one-third of Gerridee’s earnings, therefore leaving her with at least two-thirds of what she earns and, along with that, the incentive to continue to improve herself financially.
LEVINE, Acting C.J., concurs.