## Facts

- A wife filed an action for separation from bed and board against her husband.
- The trial court entered a temporary order pending trial that:
  - required the husband to pay temporary support for the wife and minor children;
  - restrained the husband from molesting the wife and children; and
  - required the husband to remove himself and his business from the marital home.
- The husband appealed the temporary order and obtained a partial stay from the trial court as to the removal-from-the-home provision (conditioned on a stay bond).
- The wife moved in the state supreme court to dismiss the appeal as taken from a nonappealable interlocutory order.

## Issues

1. Whether a temporary order in a separation-from-bed-and-board action granting temporary support, prohibitory restraints, and requiring a spouse to vacate the home pending trial is an appealable order.
2. If appealable, whether the trial court abused its discretion in issuing the temporary support, restraining provisions, and the temporary removal-from-the-home requirement on the showing made.

## Decision

- The motion to dismiss the appeal was denied; the temporary support and prohibitory restraining order (including the vacate-the-home requirement) was appealable.
- The temporary order was affirmed on the merits.
- The trial court’s stay of the vacate-the-home provision was set aside.

## Legal Principles

- The right to appeal is statutory; an order is appealable when it falls within legislatively authorized categories, including orders with injunctive character or those affecting substantial rights.
- Trial courts have statutory authority to award temporary support and suit money in divorce and separation-from-bed-and-board actions.
- Trial courts also have inherent equitable authority in domestic relations cases to issue temporary restraining orders and injunctions necessary to protect the court’s jurisdiction, the subject matter, the parties and children, and the effectiveness of eventual decrees.
- Temporary injunctive relief is reviewed for abuse of discretion; reversal requires a showing the trial court disregarded the facts.
- Before temporarily ordering a spouse to vacate the marital home, the moving party must make a proper showing that the health, security, safety, or well-being of the moving party or children might be endangered by the spouse’s continued presence; such relief should not rest on unfounded fears or vague assertions unrelated to specific conduct.

## Conclusion

The court held that temporary support and prohibitory restraining orders in a separation-from-bed-and-board action, including a temporary requirement that a spouse leave the home, are appealable, and it affirmed the trial court’s temporary relief because the record supported the protective measures and no abuse of discretion was shown.


Keller v. Keller, 158 N.W.2d 694 (N.D. 1968)