Page:North Dakota Reports (vol. 48).pdf/269

 fendant the sum of $25, payable February 22d, the sum of $25, payable March 22d.

“VI. That the defendant does not own any real property and does not own any personal property of any value, except her personal effects, and that it will require at least the sum of $25 per month for the support and maintenance of said defendant.”

Pursuant to these findings the court concluded that neither party was entitled to a divorce; that there was due and payable to the defendant from the plaintiff the sum of $50 upon an order awarding temporary alimony; that the defendant had a right to possess and occupy with the plaintiff the home and residence of the plaintiff situated in the city of Mandan, N. D.; that the plaintiff pay to the defendant the sum of $100 for the purpose of buying furnishings and clothing for the defendant, or to furnish such fixtures, furnishings, and clothing as would be equivalent in value to the sum of $100; that the plaintiff pay to the defendant the sum of $25 as permanent alimony or allowance for her support, payable monthly beginning April 22, 1921; and that the plaintiff pay to the defendant the sum of $75 for additional attorney’s fees and costs and disbursements. Judgment was entered in accordance with the findings and conclusions. The appellant challenges the sufficiency of the findings to support the judgment, and bases his principal contention upon the proposition that the court, having denied the divorce, was without power to enter any judgment for permanent or temporary maintenance.

The appellant concedes that the correctness of his contention depends upon the construction and application of § 4401, C. L. 1913. This section reads:

“Though a judgment of divorce is denied the court may in an action for divorce provide for the maintenance of a wife and her children, or any of them, by the husband.”

It will readily be seen that it is the purpose of this section to authorize the decreeing of maintenance to a wife in proper circumstances where a divorce is denied. The question is, what circumstances justify the making of such a provision? Can maintenance be awarded while the wife is living with the husband, or can it only be awarded when, for sufficient cause found by the court and on account of the husband’s fault, she is living separate and apart from him? In construing an identical statutory provision, the California court said:

“The objects of the provision evidently are to enable the court in a proper case to aid in a restoration of domestic harmony, to prevent the