RUDOLPH
J.
This is
an appeal from an order modifying a decree of divorce. The
original divorce action was brought by the appellant, Amanda
E. Shoop, against the respondent, Howard Wilbur Shoop. The
divorce was granted upon the proof of willful desertion.
While the divorce action was pending, an instrument entitled
"Settlement Agreement" was entered into by the
parties, which agreement was as follows:
"It is hereby stipulated by and between the above named
plaintiff and defendant that the property matters and claims
for alimony, suit money and costs involved in the above
entitled action are settled as follows: Subject to the
approval of the Court.
"1. The defendant herein agrees to pay to the plaintiff
herein in cash on the 21st day of each month, beginning
January 21, 1927, the sum of $25.00 per month, which shall be
in full for all claims for alimony existing between the
parties and the Order of the Court approving the settlement
agreement shall be of the same effect as entering an order
for payment of permanent alimony as provided in this
paragraph.
"2. The plaintiff is to have the sole title and
possession of the real estate described as Lots 13, 14, & 15
of Block 2 of the Village of Vivian, in Lyman County, South
Dakota, and defendant herewith executes and delivers to the
plaintiff a warranty deed conveying said title to her. The
defendant as a part of this agreement is to pay the last
one-half of the 1925 taxes and all prior taxes upon the above
described real estate, but the 1926 taxes and subsequent
taxes are to be paid by the plaintiff.
"3. It is agreed that the real estate described as All
of Section 20, Township 104 North, range 79, W. 5th P. M., in
Lyman County, South Dakota, shall be and remain as security
for the performance of the payment of alimony as hereinbefore
agreed upon by the parties excepting that in case of a sale
of the same it is agreed that the defendant may make such
sale as he desires to make provided that the sum of $3000.00
in actual cash is paid to the plaintiff at the time of making
such sale and such payment when so made is to be in full
settlement of all alimony and alimony payments under this
agreement are to then cease. The defendant is unable to
encumber or transfer the said real estate without the consent
of the plaintiff, but the quit claim deed of the plaintiff
thereto shall be deemed a complete release of the said real
estate from this agreement.
"4. All other real estate owned by the defendant at this
time shall be fully and completely released from all lien
force and effect of the marriage relationship existing
between the parties and from any claims of the plaintiff
thereon whatsoever and the plaintiff is to release the
Injunctional Order of the Court heretofore entered against a
portion of said real estate preventing encumbrance or the
conveyance thereof by the defendant.
"5. Plaintiff is to surrender and cancel and return to
the defendant as fully paid, a certain promissory note
heretofore executed and delivered by the defendant to the
plaintiff in the approximate sum of $786.00 as a part of the
consideration for the mutual promises and covenants of this
agreement.
"6. All other property, real or personal which either
party may own or possess in her or his individual name or
estate at this time is to belong to the party now having said
property in his or her individual name or estate, free and
clear of any right, interest or title of the other party and
each party hereby agrees to execute and deliver to the other
party at any time, good and sufficient deed to convey or
release any interest in any property which either of the
contracting parties may have in the property of the other,
excepting however, the real estate described as All of
Section 20, Township 104 North, Range 79, W. 5th P. M., and
Lot 13, 14 & 15, Block 2 of the
Village of Vivian, South Dakota, and excepting also the
household furniture, furnishings, equipment and supplies now
located upon and in the real estate described in paragraph
two and all of said equipment, furniture and supplies are to
belong absolutely to the party Amanda E. Shoop as her own
individual property, free and clear of any claim of Howard
Wilbur Shoop.
"7. This instrument is intended to be a full and
complete settlement of all property rights, of all claims for
suit money, alimony and support existing between the parties
at this time and each party is to pay their own expenses and
attorneys fees with the exception of the amount heretofore
advanced by Howard Wilbur Shoop which is not to be
changed."
The
trial court on January 10, 1927, entered a decree of divorce,
the material parts of which are as follows:
"And it appearing to this Court that the parties to this
action have heretofore on this 10th day of January, 1927,
made a complete settlement of their property rights and
claims for alimony and having heretofore entered its
findings, Now, therefore, on Motion of Miller & Lund,
Attorneys for the Plaintiff:
"It is ordered, adjudged and decreed, that the bonds of
matrimony heretofore existing between the plaintiff, Amanda
E. Shoop, and the defendant, Howard Wilbur Shoop, be hereby
dissolved and they each be granted an absolute divorce from
the other.
"It is further ordered, adjudged and decreed, that the
defendant be required to pay to the plaintiff, the sum of
$25.00 per month in the form of alimony, such alimony to be
payable on the 21st day of each month subsequent to the
entering of this Order, but this Decree of monthly alimony
shall not be nor have the effect of a judgment lien upon any
real estate owned by the defendant or to which he may
hereafter acquire title, excepting All of Section 20,
Township 104, North, Range 79, W. 5th P. M., Lyman County,
South Dakota, and provided further however, that the
plaintiff shall at all times have the right to proceed in any
action at law against any property of the defendant for
enforcement of this alimony decree.
"It is further ordered, adjudged and decreed, that the
property settlement date January 10, 1927, and herein entered
and filed and marked Exhibit "A" is in all respects
confirmed and approved by the Court as a property, alimony
and suit money settlement between the parties upon the issues
involved in this action.
"Dated this 10th day of January, 1927.
"By the Court:
"John
G. Bartine, Judge."
The
defendant paid the $25 per month required of him to be paid
by said decree, until the month of October, 1927. On
September 24, 1927, Amanda E. Shoop, the plaintiff, was
remarried to a man of some considerable means, after which
remarriage of the plaintiff, the defendant obtained from the
trial court an order to show cause why he should not be
relieved from all liability to pay the alimony awarded by the
decree of divorce, which had accrued since the date of the
plaintiff's marriage, and to discharge him from all
further liability to make any further payments of alimony to
the plaintiff. After a hearing upon the order to show cause
the trial court entered its order decreeing that the
defendant pay to the plaintiff the sum of $325, which amount
was the alimony payments accruing from November, 1927, to
November, 1928, inclusive, and it further ordered: "That
the decree of divorce made by this court in the above
entitled action and dated January 10, 1927, be and the same
is hereby modified to the effect that the defendant herein is
hereby relieved and discharged from any and all liability to
make any payments of alimony to the plaintiff, accruing
subsequent to December 8, 1928, and that all payments of
alimony provided by said divorce decree of this court under
date of January 10, 1927, accruing subsequent to December 8,
1928, are hereby canceled." It was further ordered that
the real estate described in the decree of divorce above
referred to, be released from any claim on said real estate
as security for any alimony accruing subsequent to December
8, 1928. It is from this order modifying the decree of
divorce that the plaintiff has appealed.
Section
165, Rev. Code 1919, provides as follows: "Where a
divorce is granted for an offense of the husband, the court
may compel him to provide for the maintenance of the children
of the marriage, and to make such suitable allowance to the
wife for her support during her life, or for a shorter
period, as the court may deem just, having regard to the
circumstances of the parties respectively; and the court may
from time to time modify its orders in these respects."
Under the provisions of this section the court may compel a
husband, where a divorce is granted because of his offense,
to make a suitable allowance to the wife for her support
during her life and "the court may from time to time
modify its order" in this respect.
The
appellant contends, first, that the payment of "$25.00
per month in the form of alimony" provided in the decree
of divorce does not come within the meaning of an allowance
to the wife for her support provided for in said section 165.
With this contention we are unable to agree. In this state
strictly speaking, there is no such thing as permanent
alimony, but it is "allowance" or "permanent
allowance" for maintenance. Warne v. Warne, 36
S.D. 573, 156 N.W. 60. The term "alimony," however,
has a general and accepted meaning, which brings it entirely
within the meaning of the term "allowance" as used
in section 165. The...
