concurring:
I concur in the result. However, I find it unnecessary to determine whether the phrase “marital property” in the restraining order was intended to refer to the face amount or to the cash surrender value of life insurance policies owned by one spouse in which the other spouse was named beneficiary. In this case there was no temporary injunction in effect when the decedent changed the beneficiary on his life insurance.
On June 8, 1982, the trial court issued ex parte a temporary injunction restraining Richard L. Lindsey “from dispos*80ing of any marital property or jointly held assets.” This order concluded with the following significant language:
This Preliminary Injunction shall continue until June 11, 1982 at 11:45 a.m. o’clock in Court Room No. 3, Cumb. Co. Court House, Carlisle, Pa. at which time and place a hearing upon Plaintiff’s motion for continuance of this injunction and final Interim Order of Distribution of Equitable [sic] pursuant to Section 401(c) of the Divorce Code shall be heard.
The temporary restraining order, therefore, expired by its own terms on June 11, 1982.1 The record does not disclose any hearing to continue the order; and the record is clear that the restraining order was not extended by further order of the court. Lindsey changed the beneficiary on one of his life insurance policies on July 8, 1982. The beneficiary was changed on the other policy on October 8, 1982. On these dates there was no court order restraining him from changing beneficiaries on his life insurance policies. Therefore, it was error to conclude, as the trial court did, that “the changes [of beneficiary] he made in contravention of the injunction were fraudulent and hence null and void.”
The majority holds that this argument was not raised in the trial court and, therefore, is not properly before this Court for review. A brief review of the proceedings, therefore, is necessary and will reveal the basis for my disagreement with the majority’s analysis. On January 25, 1983, on petition of Judith Lindsey, the trial court issued a special injunction restraining Prudential Insurance Companies of America and Washington National Insurance Company from paying to Mary Ellen Waitkus, the appellant, any proceeds from policies of insurance issued on the life of Richard Lindsey, who died on October 21,1982. Mary Ellen *81Waitkus, who was the named beneficiary on these policies, was permitted to intervene and requested a hearing. A hearing was held, at which the appellee, Judith Lindsey, was the moving party. Her attorney called the appellant, Mary Ellen Waitkus, as of cross-examination. He asked her questions, inter alia, which, together with her answers, were as follows:
Q. Were you aware that that order of court or that an order of court enjoined Mr. Lindsey from disposing of any marital property or jointly-held assets pending resolution of the claim or equitable distribution?
A. Yes, sir. I knew about it.
Q. You did testify earlier that Mr. Lindsey had expressed to you the idea or a feeling that he didn’t want his wife to get that insurance money, is that correct?
A. Well, he didn’t want her to have it all, that’s what he told me after he had done it.
Q. And you said you didn’t know that they were done until after they were done?
A. Yes, sir, that’s right.
The trial court, following the hearing, entered an order which directed the insurance companies to pay the life insurance proceeds to Mrs. Lindsey. The sole and exclusive reason for the court’s order, as already observed, was that the changes had been in contravention of the temporary restraining order and, therefore, were fraudulent and void. On appeal, Mary Ellen Waitkus has argued that this was error, that there was no injunction in effect at the time when the beneficiaries were changed. In my judgment, appellant has done everything possible to preserve this issue, and it is properly before this Court.
The argument, as herein noted, is a valid one. When the decedent changed the beneficiary on the two policies at issue in this case, there was no court order which restrained him from doing so. When the trial court concluded that the change of beneficiary had violated a court issued injunction, the court fell into error. Therefore, I agree with the majority that the order of the trial court should be reversed.
. Pa.R.C.P. 1531(d) provides:
An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct.
See also: Commonwealth, Department of Public Welfare v. Mallory, 51 Pa.Cmwlth. 414, 414 A.2d 749 (1980).