Page:North Dakota Reports (vol. 48).pdf/267

 JOSEPH PULKRABEK, Appellant, v. OLIVE PULKRABEK, Respondent.

Divorce—maintenance money to wife may be awarded where divorce denied.

1. In an action for divorce the defendant answered denying the existence of grounds alleged in the complaint and affirmatively pleaded grounds for divorce against the plaintiff, praying for divorce and permanent alimony. At the conclusion of the trial the court found the evidence of both parties insufficient and denied the divorce. In addition it found that the paintiffplaintiff [sic] owned property worth $10,000; that he had failed and neglected to provide the defendant with the necessaries of life and had neglected to pay the temporary alimony. It is held:

Under § 4401, C. L. 1913, where a divorce is denied, the court may award maintenance money to the wife.

may award maintenance money to the wife.

Divorce—statutory award of maintenance may be made upon showing of reasonable necessity.

2. An award of maintenance under § 4401, C. L. 1913, is not contingent upon the existence of grounds for divorce or upon the wife living apart from her husband without her fault, but the award may be made upon facts showing reasonable necessity for action on the part of the court.

Appeal from district court, Morton County, Pugh, J.

Affirmed.

Sullivan, Hanley & Sullivan, for appellant.

“When a decree of divorce is denied, the findings of the Trial Court must show that the parties are living apart, and that the wife needed, or would need alimony for her support and maintenance.” § 4401 Comp Laws, 1913. Peyre v. Peyre, (Cal.) 21 Pac. 838; California Civil Code. € 136; Volkmar v. Volkmar, 147 Cal. 175, 85 Pac., 413; Bensen v. Bensen, 129 Pac. 596, (Cal.).

Under the New York statute the Court must further find that even under this section the wife can be granted alimony only on the event that she is entitled to a decree. Davis v. Davis, 75 N. Y. 221; Robinson v.