The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1923-01-13

disobeyed the court order but was
prevented from doing so because of
his financial embarrassment, and the
court further ordered that he pay
the defendant $4,000 as permanent
alimony in lieu of the monthly pay
ments provided in the original judg-
ment and that same be paid in annual
installments covering period of
three years. The defendant appeals
from this order and judgment:
2. Under section 4405, Rev. c. 1913,
district courts have general authority
to change and modify decree Of
divorce providing for permanent or
temporary alimony, in the exercise
of sound discretion, where same is
not based upon the written contract
OF the contending parties.
3. Where just ground for legal
divorce exists, then contract be-
tween the parties looking to settle
ment of property rights and the pro-
per maintenance of the one not in
fault is in no sense repugnant to
public policy, and is a valid and
binding contract.
4 Where such contract is ac-
cepted by the trial court and is found
by it to be fair under all the cir
cumstances and is made part Of the
decree of divorce, same cannot be
subsequently modified upon the ap-
plication of the husband simply be-
cause of his changed financial con-
dtion SO as to completely abrogate
and annul said contract by giving the
wife a gross sum in lieu of the
monthly payment of alimony for the
term of her natural life as provided
the agreement and the decree,
especially where the contract and de-
/! cree provides that neither party
shall have the right to subs equently
apply to any court for its fodificA-
ton, and where it constitutes con-
fession of judgment for all subse
quent defaults.
5. Where the court had no author
ity to modify the decree in the man
ner, attempted, unnecessary to ex-
anime evidence to see whether under
the evidence there was an abuse of
discretion.
| ~ " hCAC Vic NOO1C VIII NV ulS-
turb the finding of the lower court
that plaintiff was not in contempt
and Diminishing contempt proceed
ings, where there is no apparent
abuse of discretion.
Z. The defendant by applying to
the lower court for. an order upon
plaintiff to show cause as to why
he should not be adjudged guilty of
contempt for failure to make pay
ments of alimony under the original
divorce decree did not thereby give
the court jurisdiction to so modify
the decree as to cancel and annul the
contract of the parties touching
their property settlement upon
such settlement was based, where
the defendant set up and relied up
| on such contract as complete de-
tense.
8. The defendant, having been put
employment of counsel to handle the
litigation arising out of the con-
tempt proceedings, because of the
counter application, and it appear
ing that she Isl without means, is en-
titled to, reasonable allowance as
suit money and attorney fees.
Appeal from district court of Ward
county, Lowe, J.
Defendant appeals from judg-
ment and order dismissing contempt
proceeding and modifying ann origi.
nal decree of divorce.
Reversed in part, affirmed in part
Opinion of the court by Geo. M
McKenna, Judge, third judicial dis
trict, sitting by request, Grace, j.,
disqualified.
Bronson and Robinson, j., special
ly concurring.
Bosard and Twiford, Minot, N. D.;
Murphy & Toner, Grand Forks, N
D., attorneys for appellant i
Greenleaf g. Wooiedge, Minot, n.
D., attorneys for respondents