VOL. 117, OCTOBER 23, 1982 929 Fundamentals of Support Pendente Lite ANNOTATION FUNDAMENTALS OF SUPPORT PENDENTE LITE By Atty. SEVERIANO S. TABIOS § 1. Introduction, p. 929. § 2. Procedural requirements, p. 930. A. Need for Application and Hearing, p. 930. B. Exercise of Judicial Discretion, p. 931. C. Enforcement of Judicial Order, p. 932. §3. Defenses against support Pendente lite, p. 933. . Denial of Paternity, p. 933. Non-existence of Marriage, p. 934. . Death of Recipient, p. 934. . Improper Conduct of the Person Seeking Support, p. 934, vamp §4. Remedy against denial of support Pendente lite, p. 935. § 1. Introduction Support pendente lite is an amount adjudicated by thetrial court during the pendency of an action for support upon application by plaintiff at the commencement of the proper action or at any time afterwards. It is a remedy recognized by the Revised Rules of Court and classified as a provisional remedy 930 930 SUPREME COURT REPORTS ANNOTATED Fundamentals of Support Pendente rendered by the court as equity and justice may require. As support pendente lite is a provisional remedy, it is not necessary that the court should inquire fully into the merits of the case, it being sufficient that the court ascertain the kind of evidence and the amount thereof that is deemed sufficient to enable it to justly resolve the application one way or the other. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. § 2. Procedural requirements A. Need for Application and Hearing At the commencement of an action for support, or at any time afterwards but prior to final judgment, the plaintiff may file an application for support pendente lite, stating the grounds for the claim and the financial conditions of both parties and supporting the same with affidavits, depositions or other authentic documents. Notice of the application shall then be served upon the adverse party who shall be required to answer within three (3) days, unless a different period of time is fixed by the court. ‘After the answer is received by the court or after the expiration of the time for filing an answer, a day will be set for the hearing of the application.’ whereby the defendant is afforded the opportunity to prove his defense. The facts in issue shall be proved in the same manner as is provided in connection with motions. In this regard, it is not necessary to require the 1 Sections 1 and 5, Rule 61, Revised Rules of Court.2 Reyes vs. Court of Appeals, et. al., L-48219, Feb. 28, 1979, 88 SCRA 803, 809, 8 Sanchez vs. Zulueta, et al., 68 Phil. 110, 112; Reyes vs. Court of Appeals, et. al., L-48219, Feb. 28, 1979, 88 SCRA 803, 809. 4 Section 1, Rule 61, Revised Rules of Court. 5 Section 2, Rule 61, Revised Rules of Court. 6 Section 4, Rule 61, Revised Rules of Court. 7 Sanchez. vs. Zulueta, et. al, 68 Phil. 110; Mangoma vs. Macadaeg, L- 5183, Dee. 10, 1951. 8 Section 4, Rule 61, Revised Rules of Court. 931 VOL. 117, OCTOBER 23, 1982 931 Fundamentals of Support Pendente Lite parties to go fully into the merits of the case, it being sufficient for the court to ascertain the kind and amount of evidence deemed sufficient to enable it to justly resolve the application one way or the other, considering the provisional character of the resolution to be entered. Moreover, where the status or juridical relation alleged by the applicant as ground for his right to support is denied by the adverse party, the evidence therein shall be clear and satisfactory as the lack of proof thereon would render an order granting support pendente lite as having been issued in excess of jurisdiction. Ibis to be noted that under the law the fact that a right to be supported is recognized in favor of the person to be supported such recognition of right does not automatically entitle him to receive support as the obligation to give support shall be demandable from the time the person who has a right to receive the same demands it extrajudicially for maintenance and support. For this purpose, support can be demanded by reason of imperative necessity and the law presumes that such necessity does not exist unless support is demanded." B. Exercise of Judicial Discretion After having determined provisionally the facts, the judge of the court where the principal action for support is pending shall issue such order as equity and justice may require. In this regard, the judge shall give due regard to the necessities of the applicant, the means of the adverse party,the probable outcome of the principal case, and such other circumstances as may aid him in the proper elucidation of the question to be resolved. Correspondingly, if the application is granted, the judge shall fix the amount of money to be provisionally paid and the terms of payment thereof. On the other hand, if the ap- 9 Reyes vs. Court of Appeals, et al., L-48219, Feb, 28, 1979, 88 SCRA 808, 809. 10 Francisco vs. Zandueta, 61, Phil. 752, 757; Herrera vs. Barretto, 25 Phil. 245; Lanzuela-Santos vs. Sweeney, 4 Phil. 79; Yangco vs. Rhode, 1 Phil. 404, 11 Art. 298, New Civil Code. 12 Jocson, et al. vs. Empire Insurance Co., et. al., 55 0.G. 2628. 932 932 SUPREME COURT REPORTS ANNOTATED Fundamentals of Support Pendente Lite plication is denied, the judge shall schedule the trial of the principal case on the merits as early as possible. It is to be understood that the order, whether denying or granting the support pendente lite, is interlocutory and consequently not appealable. However, if the application is granted, the order is immediately executory. Moreover, it has been held that while an order denying or granting support pendente lite is interlocutory and, consequently, nonappealable; if an appeal is nevertheless taken thereon, and no objection is interposed hereto, the appeal shall be entertained as the objection is deemed waived. It may not be amiss to mention, moreover, that in disposing of the question of support pendente lite, the judge may, subject to the requirements of due process, give all such directions and orders as it may deem necessary or expedient. For this purpose, the exercise of judicial discretion is presumed to be performed in accordance with the tenets of justice and fair play and it is incumbent upon the party who alleges abuse of judicial discretion to offset the presumption. C. Enforcement of Judicial Order It has been held that disobedience to an order grantingsupport pendente lite constitutes contempt of court.” However, before he is punished for contempt, the defendant who fails to comply with the court order must show cause why he should not be punished for contempt.” In this regard, should the defendant appear to have means to pay support and refuse to pay, then either an order of execution may be issued or a penalty for contempt may be imposed or both execution and con- 18 Section 5, Rule 61, Revised Rules of Court. 14 Salazar vs. Salazar, [-5828, April 29, 1958 15 Section 5, Rule 61, Revised Rules of Court. 16 Philippine National Bank, et. al. vs. Philippine Milling Co., Inc., et. al., L-27005. January 31, 1969, 26 SCRA 712, 715. 1 Perkins vs. Perkins, 57 Phil. 223, 224; Hashim vs. Concepeion, 42 Phil. 694, 696; Mendoza vs. Parungao, 41 Phil. 271. 18 Section 6, Rule 61. Revised Rules of Court, 933 VOL. 117, OCTOBER 23, 1982 933. ‘Fundamentals of Support Pendente Lite tempt may be ordered.” In this regard, the enforcement order shall depend on the exercise of judicial discretion on how defendant justifies his failure to comply with the court order. It should be underscored that an order for support pendente lite is in its very nature contingent and the dismissal of the main action has the effect of abrogating the order. Thus, where the order to pay alimony pendente lite was issued in an action for support brought by the wife, but, which was later dismissed on hereon motion, the husband cannot be obliged to pay such support pendente lite in a subsequent action brought by the wife for the same purpose, unless it be by an order issued in the second action. § 3. Defenses against support pendente lite A. Denial of PaternityAs the obligation to render support arises from the relationship of parent and child, husband and wife, legitimate ascendants and descendants and brothers and sisters, a denial of the relationship from which the obligation to give support arises will be considered a valid defense against an action for support. Thus, where a minor, through a guardian ad litem, brings an action for support on the ground that he is a son of the defendant, and the defendant denies his paternity, the Supreme Court has declared that the court the court has no jurisdiction to award support pendente lite. In this regard, the Supreme Court observed that as the civil status of being a child has been denied and has therefore become an issue in the case, it would be apparent that no effect could be given to such a claim until an authoritative declaration be made as to the existence of the cause. 19 Section 6, Rule 61, Revised Rules of Court. 20 Saavedra vs, Ibafiez Estrada, 56 Phil. 33. 21 Art, 291, New Civil Code. 22 Francisco vs. Zandueta, 61 Phil. 752. 934 934 SUPREME COURT REPORTS ANNOTATED Fundamentals of Support Pendente Lite B. Non-existence of Marriage Since the obligation tg give support arises from the relationship of spouses, the absence of such relationship would therefore defeat any claim for support. Thus, if the answer of the defendant denies the marriage between him and plaintiff, thus putting in issue the very status of the plaintiff, support pendente lite should not be allowed, until the marriage is established as a fact. It should be remembered that merely asserting the invalidity of a marriage may not be a defense against a support pendente lite because until the marriage is invalidated it will subsists. Thus, while the cessation of marriage will necessarily terminate the obligation to give support and is therefore a defense against an action for support, suport pendente lite may still be ordered duringthe proceedings for the annulment of the marriage, as the obligation of mutual support between spouses will cease after the final judgment of annulment. C. Death of Recipient Under the law, the obligation to give support shall cease upon the death of the recipient. Thus, where a judgment for support was rendered, under which the defendant was to pay to the mother of a child, as support for the latter, a certain sum, the death of the child extinguishes the obligation by the defendant to give support, because the support is not for the benefit of the mother but of the child. D, Improper Conduct of the Person Secking Support The New Civil Code recognizes two instances of improper conduct that would extinguish the obligation to give support, 23 Art, 291, New Civil Code. 2 Yangco vs. Rhode, 1 Phil. 404. 25 Art, 292, New Civil Code. 28 Art, 292, New Civil Code. 27 Art, 303, New Civil Code. 28 Malabanan vs. Abeto, 74 Phil. 13. 935 VOL. 117, OCTOBER 23, 1982 935 ‘Fundamentals of Support Pendente Lite namely: (1) when the recipient, be he a forced hire or not, has committed some act which gives rise to disinheritance; and (2) when the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by the lack of application to work, so long as this cause subsists. For this purpose, a mother who delivered her child to a couple and since then never took care of her, completely abandoning her, can not later ask for support from the child. Similarly, since under the New Civil Code, a spouse may be disinherited when he or she has given cause for legal separation and adultery isa cause forlegal separation,” therefore, in an action for support by a wife who was alleged to have committed adultery, the abandoning husband may interpose adultery as a defense. § 4. Remedy against denial of support pendente lite An order of the court denying an application for pendente lite is not final in character and as such is considered interlocutory and non-appealable. As it is non-appealable, the remedy therefore is an original action for certiorari to annul the order of denial. Thus, in a case where the trial judge denied an application for support pendente lite on the ground that as the legal separation of the spouses which the plaintiff sought has not, as yet been decreed and the children were not parties to the case, support pendente lite would be premature, the Supreme Court in upholding the reversal of the lower court's decision declared that since the order denying support pendente lite is interlocutory, plaintiff would have to wait, for its review by appeal, until the rendition of judgment on the 29 Art, 303, New Civil Code 2 Castillo vs. Castillo, 0.G. March 17, 1941, p. 968. 31 Art, 921, New Civil Code. s2 Art, 97, New Civil Code, 8 Lerma vs. Court of Appeals, et. al., 1L-38354, Dee. 20, 1974, 61 SCRA 440, 445-446; Quintana vs. Lerma, 24 Phil. 285; Sanchez vs. Zulueta, 68 Phil. 110; Mangona vs. Macadaeg, et. al., 90 Phil. 508; Olayvar vs, Olayvar, 98 Phil. 52. 31 San Juan vs. Mejia, et. al., L-59906, Oct. 23, 1982. 88 Salazar vs. Salazar, L-5823, April 29, 1953. 936 936 SUPREME COURT REPORTS ANNOTATED Fundamentals of Support Pendente Lite merits, which may not be forthcoming until months or years later; but since plaintiff and her children needed alimony to live somehow, an appeal would not have been a speedy and adequate remedy. An action for certiorari is fundamentally based on anabuse of discretion on the part of the judge. For this purpose, an abuse of discretion must be grave and patent in order that it would justify the issuance of the writ of certiorari, otherwise the petition for certiorari would likely be denied.” In this regard, an abuse of discretion is considered grave when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Necessarily, where a judge dis-missed an action for support on account of the absence of petitioner and her child in court, even if the lawyer for petitioner was ready to present evidence in support of the complaint the Supreme Court in granting a writ of certiorari declared that the dismissal of a petition for support without any lawful ground or reason for so doing amount to an excess 36 Vinluan vs. Court of Appeals, et. all, 1-25029, August 28, 1968, 24 SORA 787, 788, a7 Section 1, Rule 65, Revised Rules of Court, 8 Moscoso vs. Quiteo, L-29486, Dec. 16, 1970, 36 SCRA 256; Aro vs. Najiawa, L-24168, April 28, 1969, 27 SCRA 1090; Lantin vs. Kapunan, L- 29894, Mar. 28, 1969, 27 SCRA 613; Chieng Hung vs. Tam Tien, L- 21209, Sept. 27, 1967, 21 SCRA 211; Arroyo vs. Mencias, L-21186, Aug. 81, 1965, 14 SCRA 1050; Abig vs. Constantino, L-12460, May 31, 1961, 2 SCRA 299; Samson vs. Yatco, L-15952, Apr. 28, 1961, 1 SCRA 1145, 29 Socorro vs. Ortiz, L-23608, Dec. 24, 1964, 12 SCRA 641; Manalo vs Court of Appeals, 1-27492, July 31, 1967, 20 SCRA 926; Victorias- Manapla Workers Org'n vs. Tabigne, L-19658, Dec. 29, 1964, 12 SCRA 687; City of Davao vs. Dept. of Labor, L-19488, Jan. 30, 1965, 13 SCRA 11. 40 People vs. Marave, L-19023, July 31, 1964, 11 SCRA 618. 937 VOL. 117, OCTOBER 23, 1982 937 Fundamentals of Support Pendente Lite of jurisdiction and abuse of discretion on the part of therespondent court. —o00— 41 Samson vs. Yateo, et. al., L-15952, April 28, 1961, 1 SCRA 1145, 1150, 938 © Copyright 2012 Central Book Supply, Inc. All rights reserved.1084 PHILIPPINE REPORTS In connection with the second ground of their petition, again the ‘error if any, was corrigible by appeal and could not amount to excess of jurisdiction. Petition denied, with costs against petitioners. (No. L-$823. April 29, 1953] Rosita SUELO SaLazak, plaintiff and appellee, vs. IGNacto SaLazar, defendant and appellant. Appeal from an order of the Court of First Instance of Moilo direct- ing the defendant to give the minor children a monthly allow- ance of F200 by way of alimony pendente lite from November 6 1950 until the principal case has been finally decided. As appellant has a monthly income of P1,150, this is a sufficient basis for determining the amount of alimony pendente lite until the contrary is shown when the case is decided on the merits. The order ‘appealed from is affirmed without costs. {No. L-5836, April 29, 1953] Crispin R. RIcAMARA, ET AL,, plaintiffs and appellants, vs. at Noo KI alias Go Si, defendant and appellee.