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LYALL v. LYALL (03/29/76)

decided: March 29, 1976.

LYALL
v.
LYALL, APPELLANT



Appeal from decree of Court of Common Pleas, Family Division, of Philadelphia, Oct. T., 1972, No. 4264, in case of George W. Lyall, a/k/a George W. Lyall, Jr. v. Mary A. Lyall.

COUNSEL

Herbert Karasin, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Hoffman, J., did not participate in the consideration or decision of this case. Concurring Opinion by Price, J. Concurring and Dissenting Opinion by Van der Voort, J. Cercone, J., joins in this concurring and dissenting opinion.

Author: Spaeth

[ 240 Pa. Super. Page 651]

This is an appeal from the refusal of the court below to approve an agreement for a permanent allowance, stipulated to by both parties to a divorce action. Since the court should have approved the agreement, we remand with instructions to enter an order granting an allowance in accordance with the agreement.

On October 27, 1972, appellee George Lyall instituted an action in divorce a.v.m. on the ground of indignities against appellant Mary Lyall. On March 2, 1973, appellant's attorney filed a petition for appointment of a guardian ad litem for appellant because of her recent psychiatric hospitalizations and her inability to communicate with her attorney and participate in her own defense. Following a court-ordered neuropsychiatric examination, a guardian was appointed.

Two master's hearings were held in July, 1974. At the second, the parties entered into the record a stipulated agreement providing for a permanent allowance for appellant regardless of the outcome of the proceedings. The master subsequently filed a report recommending that a divorce be granted. On September

[ 240 Pa. Super. Page 65226]

, 1974, the court entered a final decree in divorce, but it did not enter an order for permanent allowance.

On October 22, 1974, appellant's attorney petitioned the court for an order providing permanent alimony under Section 45 of the Divorce Law, Act of May 2, 1929, P.L. 1237, § 45, 23 P.S. § 45. Attached to the petition was a proposed order incorporating the terms of the stipulation. The court did not issue the stipulated order but entered a rule upon appellee to show cause why he should not be ordered to pay permanent alimony. The rule was made returnable on November 15, 1974, but in the interim appellant filed this appeal.*fn1

In its opinion, the lower court points out that appellant does not qualify for alimony under Section 45 of the Divorce Law since that section permits the award only when the spouse is insane. Both appellant in her petition and the lower court, however, overlooked Section 48 of the Divorce Law.*fn2 Section 48 provides:

"In case of the application of a spouse for divorce from a spouse who is insane or suffering from serious mental disorder, the court, or a judge thereof to whom the application is made, shall have the power before granting the divorce to decree an allowance for the support of the defendant spouse in such amount as it may direct. The allowance herein provided may be subsequently adjusted to conform to changed conditions." ...


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