delivered the opinion of the court.
In this divоrce action by Olive A. Low against Arthur B. Low, the final decree in her favor dissolving the marriage relation and awarding alimony was entered April 27,1923. The only provision in the deсree as to alimony is an award to her of the sum of $150 per month, to be paid the first of each month thereafter. On the next proceeding day there was filed in the сause an agreement of the parties which was made by them August 3, 1922, which recited that the same was in settlement of their property rights. It provided that as a full settlement оf all claims for alimony on the part of the plaintiff, the defendant will pay to her, beginning August 1, 1922, the sum of $150 per month, payable on the first day of each month thereafter, рayments to continue until the marriage of the plaintiff. In addition to this monthly salary the defendant agreed to pay to the plaintiff the sum of $2,000 out of the proceeds оf the sale of their home or, if such sale should not be made within the period of a year, the plaintiff agrees to relinquish by deed or otherwise all right and title in the proрerty upon the payment to her by the defendant of the sum of $2,000. Defendant is to pay the court costs and plaintiff’s attorney’s fees in the sum of $200. Such payments of monthly alimоny and the lump sum are to be in full of all demands of every kind which the plaintiff makes or could make against the defendant in con *410 sideration of which she agrees to release all such claims and demands against him and his estate.
November 7,1924, the defendant filed a petition in the cause for a modification of alimony and based the same upon the claim that the situation and circumstances of both parties had materially altered since the award was made, and that it is no longer just or equitable that the defendant should be called upon to pay this amount to the plaintiff. This petition was traversed by the plaintiff and as a special defense she pleаded the foregoing agreement as a bar both to the reduction of alimony and to the power of the court to modify its decree without her consent which she refused to give. Testimony was taken by both parties and the court modified the original award by reducing the monthly payments to $75 to be paid on the first day of each month until further order of the court. The plaintiff is here with her writ of error.
Three questions or points are presented and assigned as error: (1) That as the award of alimony was based uрon an agreement of the parties which was, as well, a settlement of their property rights, it could not be modified or changed to the injury of the wife without her consent. (2) If the court has jurisdiction to modify an alimony decree generally, the petition here does not state any ultimate facts, but only conclusions of the pleadеr, which do not invoke this discretionary power. (3) That the evidence does not sustain or justify the court’s reduction.
1. Notwithstanding the decisions of this court in
Stevens v. Stevens,
Even in the Henderson case, which probably is the best reasoned of the cases relied upon by plaintiff in error, the agreement of parties, upon which the alimony decree was based, was called to the attention of the court at the time and was carried into thе decree itself practically in its entirety. In the instant case the agreement of the parties in its entirety is not carried into the alimony decree. Only that part which provides for the payment of $150 monthly alimony appears therein and other material provisions of the contract are not even referred to. If the decree, and the agreement upon which the alimony award is based, are not harmonious or in conflict, and that they are not in unison is apparent, of coursе the decree would prevail over the
*412
contract. Under the facts of the case we do not, however, find it necessary to pass upon the main contеntion here. We are inclined to the view that the weight of authority is against the contention of the plaintiff in error and that inferentially, at least, it is contrary to our own сases above cited and to
Hobbs v. Hobbs,
2. It is doubtful if sufficient facts are set up in the petition to invoke the jurisdiction of the court. But assuming, for our present purpose, that sufficient faсts are alleged, and if the court has the power to reduce alimony, we pass at once to the third assignment.
3. In exercising jurisdiction to change or modify an alimony decree courts should, and usually do, proceed with caution; and unless the evidence clearly shows that the original decree, which is presumed to have been made upon mature consideration, is no longer fair and just, it should not be changed. The ground here relied upon is a change in the financial condition of both parties. Some change in that condition, so far as it concerns the wife, was shown. At the time of the hearing she was employed as a teacher in the public schоols át a salary of $112.50 per month. There was change also in the financial condition of the husband, the petitioner, *413 but it was better, not worse, at tbe time of tbe hearing for reduction than it was at tbe time tbe original award was made. After tbe decree of divorce was granted the husband remarried and one of tbe points be sought to bring out is that tbe second wife is more economical in conducting bis household than was bis former wife. Possibly this is something which tbe court should consider in such applications. It is enоugh here and now to say that according to tbe petitioner’s own testimony, bis net income is greater now than it was when tbe divorce decree was entered and bis рresent wife’s economy has contributed to that end, and, therefore, she is not as great a burden upon him as bis former wife bad been to tbe extent of tbe savings resulting from suсh economy. This of itself betters bis financial condition. Although tbe former wife is receiving salary as a teacher in tbe public schools, she bolds tbe position on prоbation only, and it is uncertain bow long her employment will continue. There is evidence in the record that if tbe bus-band, whose source of income is largely from royalties on a patent, applied himself as diligently to useful labor or business as tbe former wife has done, bis income would probably be enhanced in possibly greater proportion than hers has been increased from teaching. We are convinced, after reading carefully tbe evidence, that tbe trial court was not justified in reduсing tbe alimony and, under good practice, tbe case is one for this court to interfere to set aside its findings. See 19 O. J. p. 273, sec. 619; p. 274, sec. 620, note 69 and cases cited.
Judgment reversed with instructions to dismiss tbe petition.
Me. Justice Dexisox not participating.