RULE

61: SUPPORT PENDETE LITE | 85

Section 1.Application. At the commencement of the proper action

because of the crime. The application therefor may be filed

or proceeding, or at any time prior to the judgment or final order, a

successively by the offended party, her parents, grandparents or

verified application for support pendente lite may be filed by any party

guardian and the State in the corresponding criminal case during its

stating the grounds for the claim and the financial conditions of both

pendency, in accordance with the procedure established under this

parties, and accompanied by affidavits, depositions or other authentic

Rule. (n)

documents in support thereof. (1a)

Section 7.Restitution. When the judgment or final order of the
Section 2.Comment. A copy of the application and all supporting

court

documents shall be served upon the adverse party, who shall have five

support pendente lite is not liable therefor, it shall order the recipient

(5) days to comment thereon unless a different period is fixed by the

thereof to return to the former the amounts already paid with legal

court upon his motion. The comment shall be verified and shall be

interest from the dates of actual payment, without prejudice to the

accompanied by affidavits, depositions or other authentic documents in

right of the recipient to obtain reimbursement in a separate action

support thereof. (2a, 3a)

from the person legally obliged to give the support. Should the

finds

that

the

person

who

has

been

providing

recipient fail to reimburse said amounts, the person who provided the
Section 3.Hearing. After the comment is filed, or after the

same may likewise seek reimbursement thereof in a separate action

expiration of the period for its filing, the application shall be set for

from the person legally obliged to give such support. (n)

hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on

FUNDAMENTALS OF SUPPORT PENDENTE LITE (SCRA)

motions. (4a)
G.R. No. L-2942

December 29, 1949

Section 4.Order. The court shall determine provisionally the

pertinent facts, and shall render such orders as justice and equity may

SILVESTRA COQUIA and LUIS CARANDANG, petitioners,

require, having the regard to the probable outcome of the case and

vs.

such other circumstances as may aid in the proper resolution of the

RODOLFO BALTAZAR Judge of the Court of First Instance of

question involved. If the application is granted, the court shall fix the

Leyte, and GASPARA, FRANCISCA, DIONISIO, ALFREDO, and

amount of money to be provisionally paid or such other forms of

SALVADOR, all surnamed COQUIA, assisted by their mother,

support as should be provided, taking into account the necessities of

MARIA DALORI, as guardian ad litem, respondents.

the applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the

Astilla,

application is denied, the principal case shall be tried and decided as

Jacinto R. Bohol and Pedro B. Talbo for respondents.

De

Veyra,

Aldaba

and

Zosa

for

petitioners.

early as possible. (5a)

OZAETA, J.:
Section 5.Enforcement of order. If the adverse party fails to
comply with an order granting support pendente lite, the court

Respondents Gaspara, Francisca, Dionisio, Alfredo, and Salvador

shall, motuproprio or upon motion; issue an order of execution against

Coquia, assisted by their mother and guardian ad litem Maria Dalori,

him, without prejudice to his liability for contempt. (6a)

filed an action in the Court of the First Instance of Leyte against the
spouses SilvestraCoquia and Luis Carandang to recover the possession

When the person ordered to give support pendente lite refuses or fails

as owner of four parcels of land, of which three belong pro indiviso to

to do so, any third person who furnished that support to the applicant

Alfredo Coquia and his sister, the petitioner SilvestraCoquia, now a

may, after due notice and hearing in the same case obtain a writ of

deceased, upon the allegation that they are acknowledged natural

execution to enforce his right of reimbursement against the person

children and the sole heirs of the latter. The petitioners (defendants

ordered to provide such support. (h)

below) in their answer denied that the respondents are acknowledged

natural children of the deceased Alfredo Coquia.

Section 6.Support in criminal cases. In criminal actions where the

civil liability includes support for the offspring as a consequence of the

Pending the trial of the case said respondents (plaintiff's below) filed a

crime and the civil aspect thereof has not been waived, reserved and

petition for alimony pendente lite which Judge Edmundo S. Piccio

instituted prior to its filing, the accused may be ordered to provide

granted in the sum of P200 a month (subsequently reduced to P100 a

support pendente lite to the child born to the offended party allegedly

month), "considering the legal and equitable rights of said plaintiffs in

RULE 61: SUPPORT PENDETE LITE | 86

the land question in which they have interests and their actual

Moran, C.J., Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor,

destitute situation while the defendants are possessed of considerable

Reyes and Torres, JJ., concur.

real properties," the judge said.

SECOND DIVISION
The

respondent

judge,

Honorable

Rodolfo

Baltazar,

denied

petitioners' motion for reconsideration, holding that the order of Judge

G.R. No. L-59906 October 23, 1982

Piccio for alimony pendente lite was well founded; and, on February
26, 1949, ordered the issuance of a writ of execution against the

BUENAVENTURA SAN JUAN, petitioner,

herein petitioners to collect the sum of P400 corresponding to four

vs.

months of unpaid alimony.

HON. MANUEL E. VALENZUELA, Judge of the Court of First

Instance of Rizal and DOROTEA MEJIA,respondents.

We find the present petition for certiorari to annul the above

mentioned orders to be well founded.

Francisco D. Lozano for petitioner.

Rule 63 of the Rules of the Court, which authorizes the granting of

Manuel Valenzuela in his own behalf.

alimony pendente lite" at the commencement of the proper action, or

at any time afterwards but prior to the final judgment," is not

ESCOLIN, J.:

applicable to this case. The action commenced before the respondent

judge was not for support but for the recovery of the ownership and

Petition for certiorari to annul and set aside the order of respondent

possession of real property. Manifestly such an action is not "the

Judge Manuel E. Valenzuela in Civil Case No. 8874-P of the Court of

proper action" contemplated by said rule The mere fact that the

First Instance of Rizal, Branch XXIX, dated December 24, 1981,

plaintiffs have legal and equitable rights in the property they seek to

ordering petitioner Buenaventura San Juan to give support pendente

recover (Q. E. D. ) does not authorize the court to compel the

lite to respondent Dorotea Mejia and her minor children.

defendants to support the plaintiffs pending the determination of the

suit.

It appears that on September 16, 1981, the marriage between

respondent Mejia and petitioner San Juan, solemnized on October 2,

Moreover, the petitioners, who are sister and brother-in law,

1973, was declared null and void by the Court of First Instance of Rizal

respectively, of the deceased Alfredo Coquia, are not bound to support

on the ground of a prior and subsisting marriage between petitioner

the alleged natural children of the latter. Under the article 143 of the

and one Isabel Bandin. On February 25, 1981, respondent Mejia

Civil Code only the following are bound to support each other: (1)

instituted the instance action against petitioner, docketed as Civil Case

husband and wife: (2) legitimate ascendants and descendants: and (3)

No. 8874- P, seeking support for herself and her two minor children.

parents and acknowledged natural children, and the legitimate

descendants of the latter.

After issues were joined, the respondent judge, on motion of Mejia,

entered the challenged order granting supportpendente lite as follows:

Even in an action for divorce and alimony, it has been held that the
court has no jurisdiction to grant alimonypendente lite where the

IN VIEW OF THE FOREGOING, pursuant to Section

answer to the complaint alleging marriage and praying for divorce

5, Rule 61 of the New Rules of Court and after

denies the fact of marriage, because the right of a wife to support

giving due regard to the necessities of the plaintiff

depends upon her status as such, and where the existence of such

Dorotea Mejia and her children, Rachel San Juan

status is put in issue by the pleading, it cannot be presumed to exist

and Jeffrey San Juan, the application for support

for the purpose of granting alimony. (Yangco vs. Rohde, 1 Phil.,

pendente lite is hereby granted, and the same is

404.)lawphi1.net

fixed at P2,500.00 a month commencing from

January 1, 1982 to be paid to the plaintiff on or

The petition is granted and the orders complained of are hereby set

the 5th day of each month until this case is finally

aside, without any finding as to costs in view of the fact that the

adjudicated. This is without prejudice to any

individual respondents are litigating as paupers.

judgment for support in arrears due the plaintiff if

the evidence will so warrant after trial.

RULE 61: SUPPORT PENDETE LITE | 87

SO ORDERED.

and in behalf of minors FERNANDO LAGOS and LORRAINE

LAGOS, respondents.

Petitioner's motion for reconsideration of the above order on the

grounds that (1) the amount is grossly disproportionate to petitioner's

CONCEPCION, C.J.:

means; (2) petitioner is not obliged to support respondent Mejia as

their marriage is null and void; and (3) no evidence was presented as

This is an original action for certiorari to annul an order of the Court of

to petitioner's present resources, was denied.

Appeals.

Hence, on March 16, 1982, petitioner instituted this petition.

It appears that, assisted by their mother, Felisa Lagos, the minors

Fernando and Lorraine Lagos filed, with the Court of First Instance of

It appears that pending resolution of this petition, petitioner filed with

Batangas, a complaint against Luis T. Ramos, the petitioner herein, for

the trial court a manifestation, dated June 17, 1982, proposing to

support and damages, alleging that she bore said children, born on

settle his obligation of P15,000.00, representing the amount of support

August 27, 1963 and June 21, 1965, respectively, in consequence of

which accrued from January to June, 1982, and to pay the same in

illicit relations with said Ramos, who had failed and refused to support

three equal installments, the first to be paid upon approval by the

said minors, notwithstanding repeated demands, and despite the fact

court of his scheme of payment, and the balance within a period of

that he has, as a municipal mayor, the means therefor, which she does

two (2) months thereafter. This proposal was approved by the court.

not have. Ramos having denied the main allegations of the complaint

In the same manifestation, petitioner sought the reduction of the

and set up a counterclaim for damages, the case proceeded to trial,

amount of support pendente lite to P1,000.00 a month on the ground

after which, on December 18, 1967, said court rendered judgment for

that the sum of P2,500.00 previously fixed by respondent judge is now

the plaintiffs, sentencing Ramos to pay each of said minors the sum of

beyond his means to pay. According to private respondent, the court

P75.00 monthly, in addition to the aggregate sum of "P2,075.00

had not yet acted on petitioner's request for reduction of the monthly

representing the support in arrears for the elder child, that is, from

support because the respondent judge left for abroad.

July 17, 1964, when defendant stopped giving him the support, up to
the filing of the complaint on September 3, 1965," and "the support in

Unquestionably, the petitioner's willingness to pay the amount of

arrears in the amount of P180.00 for the younger child, or from June

support pendente lite in the mariner indicated in his manifestation, and

21, 1965, when she was born, up to September 3, 1965, when the

the approval thereof by the respondent Judge have rendered this

complaint for support was filed," apart from "the sum of P500.00

petition moot and academic.

representing attorney's fees and costs of suit suffered by the

plaintiffs."

As to the factual issue of whether the amount of P2,500.00 previously

fixed by respondent judge is now beyond the means of petitioner, the

Ramos having appealed to the Court of Appeals, plaintiffs-appellees

same should be resolved by the lower court on the basis of the

moved therein for support pendente lite. In a reasoned and signed

evidence to be presented at the proper hearing. The order of

resolution dated November 21, 1969, Ramos was ordered by the Court

December 24 fixing the amount of support pendente lite is not final in

of Appeals to deposit with its Clerk the sum of P4,727.50

character in the sense that it can be the subject of modification,

representing one-half of the amount due under the appealed decision

depending on the changing conditions affecting the ability of the

to the aforesaid plaintiffs "within 15 days from notice, otherwise he

obligor to pay the amount fixed for support. 2

will be cited for contempt. Once the amount is deposited, the Clerk of
this Court is directed to deliver the same to plaintiff-appellee Felisa

WHEREFORE, the instant petition is hereby dismissed for being moot

Lagos." A reconsideration having been denied, Ramos commenced the

and academic. No costs.

present action, alleging that the Court of Appeals had abused its
discretion in issuing the aforementioned resolution: (a) "there having

SO ORDERED.

been neither a recognition of paternity by the petitioner nor its

establishment by final judgment"; (b) his motion for reconsideration

G.R. No. L-31897 June 30, 1972

having been denied without an oral argument requested by him; (c)

the Court of Appeals having granted the minors the sum of P4,727.50,

LUIS T. RAMOS, petitioner,

despite the fact that their mother had merely requested "a monthly

vs.

support of P75.00 for each child;" (d) said Court having denied

HONORABLE COURT OF APPEALS, FELISA LAGOS, for herself

petitioner's request for "a 10-day abeyance in the implementation of

RULE 61: SUPPORT PENDETE LITE | 88

the resolution" granting support pendente lite; (e) the trial court

In the subsequent case of Garcia vs. Court of Appeals, 5 this Court

having denied the motion therein filed by the plaintiffs-appellees for

reversed an order of the Court of Appeals annulling an order of the

support pendente lite; and (f) the Court of Appeals not having required

trial court granting alimony during the pendency of an appeal from the

Felisa Lagos to file a bond, despite the fact that she had offered to put

latter's decision sentencing the defendant therein and petitioner in the

one.

Court of Appeals to acknowledge a natural child. Speaking through

then Chief Justice Bengzon, the Court used the following language:

Upon the filing of the petition herein and approval of the requisite
bond, We issued a writ of preliminary injunction restraining the

The appellate tribunal held that the Cavite court

enforcement of the contested resolution of the Court of Appeals.

had no jurisdiction to issue the questioned order

because the relationship of paternity between

The first ground invoked by the petitioner is predicated upon Yangco

petitioner and his alleged natural father had not

vs. Rohde 1 which is not in point, alimonypendente lite having been

yet been established by final judgment. Petitioner,

granted in that case without any evidence, on the status of the plaintiff

on the other hand, claims that support pendente

as alleged wife of the defendant, who had denied such allegation,

lite being in the nature of a temporary relief, final

unlike the case at bar in which said evidence was introduced and

judgment as to the relationship of the natural

found to be sufficient, although the trial court's decision is still pending

father and child isnot essential. Arguing his point,

appeal. Francisco vs. Zandueta. 2 on which petitioner, likewise, relies

he cites propositions from some decisions of this

merely reiterated the stand taken in the Yangco case, on the

Court; that only prima facie evidence indicative of

impropriety of granting alimony pendente lite on the basis of the bare

such family relation is necessary; that even an

allegations of the complaint, which are disputed by the defendant. It,

authoritative declaration would be sufficient and

however, pointed out the "substantial difference between the capacity

that the obligation to support begins after one is

of a person after the rendition of a final judgment in which that person

compelled to acknowledge by decree of the Court.

is declared to be in possession of the status of a son and his

capacity prior to such time when nothing exists other than his suit or

We think the petitioner's contention accords with

claim to be declared in possession of such a status." In Sanchez vs.

reason and authority.

Zulueta in which the defendant had been compelled to pay a

monthly allowance pendente lite to his wife, the plaintiff, and her child,

Although the law gives the right of support to

after denying him the opportunity, requested by him, to introduce

acknowledged

evidence in support of his defense to the effect that the child had been

Laureano Garcia has not yet been actually

the product of her adulterous relations with another man, after she

acknowledged because the decision has not yet

had abandoned the conjugal dwelling this Court went farther and

become executory, still as the confirmation of the

said:

order of recognition may be said to relate back to

natural

children,

and although

the date of the original decision, it lies within the

We are of the opinion that the Court of Appeals erred in not allowing

discretion of the trial court to direct the father to

the defendant to present his evidence for the purpose of determining

give support pending the appeal. Indeed, there

whether it is sufficient prima facie to overcome the application.

may be instance where, in view of the poverty of

Adultery on the part of the wife is a valid defense against an action for

the child, it would be a travesty of justice to refuse

support (Quintana vs. Lerma, 24 Phil., 285). Consequently, as to the

him support until the decision of the judge is

child, it is also a defense that it is the fruit of such adulterous relations,

sustained on appeal. There being at least prima

for in that case, it would not be the child of the defendant and, hence

facie evidence of the child's right to support, the

would not be entitled to support as such. But as this defense should be

Cavite

established, and not merely alleged, it would be unavailing if proof

court

discretion.

acted

within

its

power

and

thereof is not permitted. It is not of course necessary to go fully into

merits of the case, it being sufficient that the court ascertain the kind

As above indicated, not only had evidence on the alleged relation

of amount of evidence which it may deem sufficient to enable it to

between the minors and Ramos been introduced in the case at bar.

justly resolve the application, one way or take other, in view of the

Judgment had, moreover, been rendered finding that said relation had

merely provisional character of take resolution to be entered.

been duly established, although an appeal from said judgment was

and is still pending in the Court of Appeals. Indeed, the Rules of Court

RULE 61: SUPPORT PENDETE LITE | 89

clearly authorizes the granting of support pendente lite, even prior to

discretionary for said appellate court, as was its authority to grant or

the rendition of judgment by the trial court. Sections 1 and 5 of Rule

deny the aforementioned period of ten (10) days. Furthermore,

61 provide:

petitioner has not shown that he could have adduced substantial

reasons to warrant a reversal of the contested resolution had this
SEC. 1. Application. The plaintiff, at the

period been granted or said oral argument taken place.

commencement of the proper action, or at any

time afterwards but prior to final judgment, may

Again, the grant to the minors who had merely asked "a monthly

file an application for support pendente lite,

support of P75.00 for each child," or P150.00 a month for both, and,

stating the grounds for the claim and the financial

through their mother, had offered to file a bond of the aggregate

conditions

be

sum of P4,727.50, without requiring a bond therefor, did not constitute

accompanied by affidavits, depositions or other

a grave abuse of discretion amounting to excess of jurisdiction, in the

authentic documents in support thereof.

light of the circumstances surrounding the case. Indeed, as stated in

of

both

parties,

and

shall

the appealed decision of the trial court:

xxxxxxxxx
From the evidence presented in this case, the
SEC.

5. Order.

shall

Court does not entertain a doubt that plaintiff and

determine provisionally the pertinent facts, and

defendant had illicit relationship and that the two

shall render such order as equity and justice may

children, namely, Fernando and Lorraine, both

require, having due regard to the necessities of

surnamed Lagos, are the result of this illicit

the applicant, the means of the adverse party, the

relationship. It will be remembered that although

probable outcome of the case, and such other

defendant denied having written any letter to

circumstances as may aid in the proper elucidation

plaintiff, yet when the letters Exhibits "C" to "L",

of the question involved. If the application is

were shown to him the defendant admitted that

granted, the court shall fix the amount of money

the writings in said letters are similar to his.

to be provisionally paid, and the terms of

Moreover,

payment. ... .

The

court

if

the

defendant's

allegation

that

Exhibits "C" to "L" were not written by him, he

could easily hire a handwriting expert to prove

It goes without saying that if, before the rendition of judgment, the

that those letters are not his handwriting. The fact

trial court may "provisionally" grant alimonypendente lite, with more

that he did not present a handwriting expert, to

reason may an appellate court exercise a similar authority, after a full

prove his contention that the letters exhibited are

dress trial and a decision of the trial court on the merits finding that

not his, only goes to show that he is not really

the claim of filiation and support has been adequately proven in the

serious in disproving plaintiff's claims. In fact, it is

case at bar, beyond doubt even if such decision were still pending

not improbable that he did not take the trouble of

appeal taken by the party adjudged to be bound to give such support.

presenting a handwriting expert because he is

afraid that the handwriting expert if presented

Needless to say, the refusal of the trial court to grant, said

would only tell the truth, that is, that those letters

alimony pendente lite did not and cannot deprive the appellate court of

are really defendant's own handwriting. Secondly,

said authority, or even dent the wisdom of the action taken by the

the Court cannot believe the evidence presented

latter, considering that the former did not give any plausible reason for

by the defendant to the effect that it was

its aforementioned refusal and that the same may have, in fact, been

defendant's legal wife who recommended the

due to the appeal taken by the defendant, whose record on appeal

employment of the plaintiff in Manila sometime in

had already been approved.

1962 or 1963, because according to the evidence

of the plaintiff, which has not been rebutted by

Neither did the failure of the Court of Appeals to hear petitioner herein

defendant, the latter and his legal wife were then

on oral argument before denying his motion for reconsideration or to

separated. In fact, from the letters Exhibits "F",

grant him "a 10-day abeyance in the implementation" of said

"H" and "J" it appears that it was the defendant

resolution constitute a grave abuse of discretion, for petitioner is not

who had been promising the plaintiff a job and he

entitled as a matter of right to said oral argument, which was

visits her in Dakota (Exhibit "L"). Thirdly,the

RULE 61: SUPPORT PENDETE LITE | 90

defendant has not adduced an iota of evidence to

Besides, the relief which may be given to a party depends, not so

explain why plaintiff would demand from him the

much upon the prayer in his motion, as upon the allegations thereof

support of her children. Neither has defendant

and the pertinent facts. 9 In the present case, it is not disputed that

presented evidence to explain why the father of

one of the plaintiffs was born on August 27, 1963 and the other on

the

June 21, 1965. On the date of the contested resolution,

plaintiff

had

testified

against

him

10

they were,

when according to the defendant he and the

therefore, 6 and 4 years of age, respectively. The minors are now,

father of the plaintiff were good friends.Finally,

therefore, around 9 and 7 years old, respectively, or of school age. In

there seems to be no valid reason why the plaintiff

addition thereto, they have been litigating since September 5, 1965, or

would choose a Mayor, who under ordinary

almost seven (7) years, and the decision in their favor is still pending

circumstances is difficult to fight with, in his own

appeal. Paraphrasing Garcia v. Court of Appeals,

municipality.

the

obtaining in the present case suggest that this is an instance where, in

view of the poverty of herein private respondents, "it would be a

father of plaintiff's two children only indicates that

travesty of justice" to refuse them support until the decision of the trial

plaintiff is merely stating the truth.

judge "is sustained on appeal."

evidence

particularly the

fact,

therefore,

adduced

letters

that

the circumstances

defendant is named in the instant complaint as the

The

The

11

by

plaintiff,

Exhibits

"C"

to

more

All these factors considered, We do not feel that the Court of Appeals

"L",

has gravely abused its discretion or exceeded its jurisdiction in acting

corroborate the testimony of plaintiff that she was

as it did.

constrained to have amorous relationship with

him.

WHEREFORE, the petition herein should be, as it is hereby, dismissed,

Specifically, in defendant's letter Exhibit "F", he

and the writ prayed for denied, with costs against herein petitioner,

fixed the hour and place of their rendezvous for

Luis T. Ramos. The writ of preliminary injunction issued on May 20,

Manila,

1970 is hereby set aside. It is so ordered.

defendant

after

when

she

said

mahalnamahalkita

lost

letter

herself

states

kaya

to

"Darling,

pagako

iyongkalilimutan

ay
ay

G.R. No. L-46763 February 28, 1978

hindikomalalamanangakinggagawin." Defendant's

letter of July 30, 1962 Exhibit "L", clearly reveals

ANTONIO VASCO, petitioner,

that he often saw Felisa at Dakota St., Manila,

vs.

when he asked in said letter for understanding in

COURT OF APPEALS, LEONOR INES LUCIANO, as Presiding

not seeing her everyday. In short, the evidence

Judge of the Juvenile & Domestic Relations Court, Quezon

presented, clearly shows that there was an

City; NICANOR SALAYSAY, as Sheriff for the Province of Rizal,

amorous

and ANGELINA REYES Y BAJACAN, REYNALDO VASCO and

relationship

between

plaintiff

and

defendant, the latter being a married man, and

LOLITA VASCO, respondents.

that the two children were conceived and born at

the time of this relationship. These two children

Quasha, Asperilla, Ancheta, Valmonte, Pea &Marcoa for petitioner.

possess the status of illegitimate children other

than natural, who are entitled to support and

Alejandro S. Quizon for private respondents.

other successional rights as granted in the Civil

Code (Article 287, New Civil Code). As such

AQUINO, J.:

illegitimate children, defendant has the obligation

to support them. 8

This case is about the trial court's jurisdiction to execute pending

appeal a judgment for support.

Then, too, the sum of P4,727.50, stated in the resolution complained

of, represented merely one-half () of the aggregate amount due

The Juvenile and Domestic Relations Court of Quezon City in a decision

under the decision of the trial court, as of the date of the contested

dated October 5, 1976 found that Reynaldo Vasco and Lolita Vasco

resolution of the Court of Appeals, and the reasons therein adduced by

(born on April 8, 1952 and April 27, 1954, respectively) are the

petitioner herein, as well as those given by him in this petition and

illegitimate children of Antonio Vasco and Angelina Reyes. It ordered

memorandum herein are basically weak, feeble and insubstantial.

Antonio to pay them the sum of P200 as monthly allowance for

RULE 61: SUPPORT PENDETE LITE | 91

support, beginning October, 1976 plus P500 as attorney's fees (Civil

On the other hand, the general rule is that an appeal stays the

Case No. QE-00888, Reyes vs. Vasco).

execution of the judgment (Araneta vs. Gatmaitan, 101 Phil. 328, 338;
Caragao vs. Maceren and Sebellino 92 Phil. 121, 124).

Antonio Vasco appealed to the Court of Appeals from that decision. He

perfected his appeal on January 6, 1977. In its order dated April 21,

In granting execution pending appeal, the lower court relied

1977 the lower court approved Vasco's record on appeal and ordered

upon Garcia vs. Court of Appeals, 114 Phil. 619 andHamoy vs.

the elevation of the record to the Court of Appeals.

Batingolo, 116 Phil. 115. The facts of the two cases are different from
the situation in the instant case.

On June 22, 1977, or two months after the approval of the record on
appeal, Reynaldo Vasco and Lolita Vasco filed a motion for the

The Garcia case refers to support pendente lite which is immediately

execution of the said judgment pending appeal.

executory. The Hamoy case refers to an execution pending appeal

against a person who was not a party to the case and who had a

Antonio Vasco opposed that motion on the ground that the lower court

remedy in the trial court, which issued the writ of execution, even if

had no jurisdiction to grant execution. He invoked section 9, Rule 41 of

the appeal of a party had already been perfected. That is different

the Rules of Court.

from the incident in this case.

The lower court granted the motion in its order of July 13, 1972.

The instant case is governed by the rule that a trial court, in ordering

Antonio Vasco assailed that order of execution in his petition for

(after the approval of the bill of exceptions, now record on appeal) the

certiorari in the Court of Appeals.

execution of a judgment requiring the husband to pay support to his

wife, acted without jurisdiction and, therefore, the order of execution

The Court of Appeals in its decision of August 10, 1977 upheld that

is illegal and void (Marcelo vs. Estacio, 69 Phil. 145; Estacio vs.

order of execution pending appeal in the "interest of substantial

Provincial Warden of Rizal, 69 Phil. 150).

justice" and on the theory that the judiciary is an agency of the State
acting as parenspatriaeand that if the said order is erroneous, the

Contrary to the impression of the Court of Appeals, the trial court's

error is only an error of judgment and is not a grave abuse of

error is not merely an error of judgment. It is clear that the trial court

discretion or an act in excess of jurisdiction.

acted without jurisdiction. Hence, certiorari lies to annul its order of

execution pending appeal.

On August 26, 1977 Antonio Vasco filed in this Court the instant
petition for certiorari.

The Court of Appeals in sustaining the trial court's order of execution

cited the demands of substantial justice and the role of the State

The petition is meritorious because the trial court had no jurisdiction

as parenspatriae protecting the interests of minors (Cabanas vs. Pilapil,

(long after the perfection of the appeal) to issue an order for execution

L-25843, July 25, 1974, 58 SCRA 94).

pending appeal It had no jurisdiction because, after the perfection of

the appeal, "the trial court loses its jurisdiction over the case, except to

It is axiomatic that the courts should endeavor to do substantial justice

issue orders for the protection and preservation of the rights of the

in all cases and that as much as possible technicalities should be

parties which do not involve any matter litigated by the appeal to

eschewed. As has been said, a technicality should be an aid to justice

prove compromises offered by the parties prior to the transmittal of

and not its great hindrance and chief enemy. And, as the saying goes,

the record on appeal to the appellate court, and to permit the

we should dispense compassionate justice which is the hallmark of the

prosecution of pauper's appeals" (Sec. 9, Rule 41, Rules of Court.)

New Society. "For Moses gave us only the Law with its frigid demands
and merciless justice, while Jesus Christ brought us loving forgiveness

An order for execution pending appeal does not fall within the said

as well." (Line 17, Chapter 1, Gospel of Saint John).

exceptions because it is a proceeding involving the very matter

litigated by the appeal (Cabilao vs. Judge of the Court of First Instance

However, we should not forget that procedural rules have their own

of Zamboanga, L-18454, August 29, 1966, 17 SCRA 992, 997).

wholesome rationale in the orderly administration of justice. Justice

has to be administered according to the rules in order to obviate

Before the rendition of the judgment, the plaintiffs could have availed

arbitrariness, caprice or whimsicality.

themselves in the lower court of the provisional remedy of

support pendente lite (Rule 61, Rules of Court). They did not do so.

As to the doctrine of parenspatriae (father of his country), its

relevancy to this case is doubtful because the recipients of the support

RULE 61: SUPPORT PENDETE LITE | 92

granted by the lower court are no longer honors. The doctrine refers

on 11 August 1975 by the Quezon City Juvenile and Domestic

to the inherent power and authority of the state to provide protection

Relations Court.5

of the person and property of a person non sui juries. Under that
doctrine, the state has the sovereign power of guardianship over

On 25 March 1976, or within seven months after the annulment of

persons

considered

their marriage, petitioner gave birth to twins Rica and Rina. According

the parenspatriae of minors. (67 C.J.S. 624; Government of the P. I.

to petitioner, she, with the assistance of her second husband Danny

vs. Monte de Piedad, 35 Phil. 728, 747; 31 Words and Phrases

Mangonon, raised her twin daughters as private respondents had

Judicially Defined, Per. Ed., pp. 99-100).

totally abandoned them. At the time of the institution of the petition,

under

disability.

Thus,

the

state

is

Rica and Rina were about to enter college in the United States of
WHEREFORE, the decision of the Court of Appeals and the lower

America (USA) where petitioner, together with her daughters and

court's order and writ of execution are reversed and set aside. No

second husband, had moved to and finally settled in. Rica was

costs.

admitted to the University of Massachusetts (Amherst) while Rina was

accepted by the Long Island University and Western New England

SO ORDERED.

College. Despite their admissions to said universities, Rica and Rina

were, however, financially incapable of pursuing collegiate education

G.R. No. 125041

because of the following:

June 30, 2006

MA. BELEN B. MANGONON, for and in behalf of her minor

i) The average annual cost for college education in the US is

children REBECCA ANGELA DELGADO and REGINA ISABEL

about US$22,000/year, broken down as follows:

DELGADO. Petitioner,
Tuition Fees US$13,000.00

vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARASALONGA, Presiding Judge, RTC-Makati, Branch 149,

Room & Board 5,000.00

FEDERICO C. DELGADO and FRANCISCO C.

DELGADO, Respondents.

Books 1,000.00

DECISION

Yearly Transportation &

CHICO-NAZARIO, J.:

Meal Allowance 3,000.00

Before Us is a Petition for Review on Certiorari assailing the

Total US$ 22,000.00

Decision1 of the Court of Appeals dated 20 March 1996, affirming the

Order, dated 12 September 19952 of the Regional Trial Court (RTC),

or a total of US$44,000.00, more or less, for both

Branch 149, Makati, granting support pendente lite to Rebecca Angela

Rica and Rina

(Rica) and Regina Isabel (Rina), both surnamed Delgado.

ii) Additionally, Rica and Rina need general maintenance
The generative facts leading to the filing of the present petition are as

support each in the amount of US$3,000.00 per year or a

follows:

total of US$6,000 per year.

On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of

iii) Unfortunately, petitioners monthly income from her 2

her then minor children Rica and Rina, a Petition for Declaration of

jobs is merely US$1,200 after taxes which she can hardly

Legitimacy and Support, with application for support pendente lite with

give general support to Rica and Rina, much less their

the RTC Makati. In said petition, it was alleged that on 16 February

required college educational support.

1975, petitioner and respondent Federico Delgado were civilly married

by then City Court Judge EleuterioAgudo in Legaspi City, Albay. At that
time, petitioner was only 21 years old while respondent Federico was
only 19 years old. As the marriage was solemnized without the
4

required consent per Article 85 of the New Civil Code, it was annulled

iv) Neither can petitioners present husband be compelled to

share in the general support and college education of Rica
and Rina since he has his own son with petitioner and own
daughter (also in college) to attend to.

RULE 61: SUPPORT PENDETE LITE | 93

v) Worse, Rica and Rinas petitions for Federal Student Aid
6

have been rejected by the U.S. Department of Education.

support under Article 199 of the Family Code is not concurrent such
that the obligation must be borne by those more closely related to the
recipient. In this case, he maintained that responsibility should rest on

Petitioner likewise averred that demands7 were made upon Federico

the shoulders of petitioner and her second husband, the latter having

and the latters father, Francisco, for general support and for the

voluntarily assumed the duties and responsibilities of a natural father.

payment of the required college education of Rica and Rina. The twin

Even assuming that he is responsible for support, respondent

sisters even exerted efforts to work out a settlement concerning these

Francisco contends that he could not be made to answer beyond what

matters with respondent Federico and respondent Francisco, the latter

petitioner and the father could afford.

being generally known to be financially well-off.9 These demands,

however, remained unheeded. Considering the impending deadline for

On 24 May 1994, petitioner filed a Motion to Declare Defendant

admission to college and the opening of classes, petitioner and her

(respondent herein) Federico in Default.17 This was favorably acted

then minor children had no choice but to file the petition before the

upon by the trial court in the Order dated 16 June 1994.18

trial court.
On 5 August 1994, respondent Federico filed a Motion to Lift Order of
Petitioner also alleged that Rica and Rina are her legitimate daughters

Default alleging that the summons and a copy of the petition were not

by respondent Federico since the twin sisters were born within seven

served

in
20

his

correct

address.19 Attached

thereto

was

his

months from the date of the annulment of her marriage to respondent

Answer

where he claimed that petitioner had no cause of action

Federico. However, as respondent Federico failed to sign the birth

against him. According to him, he left for abroad and stayed there for

certificates of Rica and Rina, it was imperative that their status as

a long time "[w]ithin the first one hundred twenty (120) days of the

legitimate children of respondent Federico, and as granddaughters of

three hundred days immediately preceding March 25, 1976" and that

respondent Francisco, be judicially declared pursuant to Article 173 of

he only came to know about the birth of Rica and Rina when the twins

the Family Code.10

introduced themselves to him seventeen years later. In order not to

antagonize the two, respondent Federico claimed he did not tell them

As legitimate children and grandchildren, Rica and Rina are entitled to

that he could not be their father. Even assuming that Rica and Rina

general and educational support under Articles 17411 and 195(b)12 in

are, indeed, his daughters, he alleged that he could not give them the

relation to Articles 194(1 and 2)

13

and 199(c)

14

of the Family Code.

Petitioner alleged that under these provisions, in case of default on the

support they were demanding as he was only making P40,000.00 a

month.

part of the parents, the obligation to provide support falls upon the
grandparents of the children; thus, respondent Federico, or in his

Finding sufficient ground in the motion filed by respondent Federico,

default, respondent Francisco should be ordered to provide general

the trial court lifted its Order dated 16 June 1994 and admitted his

and educational support for Rica and Rina in the amount of

Answer.21

US$50,000.00, more or less, per year.

In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to
Petitioner also claimed that she was constrained to seek support

Set Application for Support Pendente Lite for Hearing because Rica and

pendente lite from private respondents - who are millionaires with

Rina both badly needed immediate financial resources for their

extensive assets both here and abroad - in view of the imminent

education.22 This Motion was opposed by respondent Francisco.23 After

opening of classes, the possibility of a protracted litigation, and Rica

both parties submitted supplemental pleadings to bolster their

and Rinas lack of financial means to pursue their college education in

respective positions, the trial court resolved the motion in an Order

the USA.

dated 12 September 1995 in this wise:

In his Answer,15 respondent Francisco stated that as the birth

WHEREFORE, in the light of the foregoing considerations, respondents

certificates of Rica and Rina do not bear the signature of respondent

are hereby directed to provide a monthly support (pendente lite)

Federico, it is essential that their legitimacy be first established as

of P5,000.00 each or a total of P10,000.00 for the education of

"there is no basis to claim support until a final and executory judicial

Rebecca Angela and Regina Isabel Delgado to be delivered within the

declaration

first five days of each month without need of demand.24

has

been

made

as

to

the

civil

status

of

the

children."16 Whatever good deeds he may have done to Rica and Rina,
according to respondent Francisco, was founded on pure acts of

Unsatisfied with the Order of the trial court, petitioner brought the

Christian charity. He, likewise, averred that the order of liability for

case to the Court of Appeals via Petition for Certiorari. The Court of

RULE 61: SUPPORT PENDETE LITE | 94

Appeals affirmed the holding of the trial court and disposed the

US$2,625.00.29 Again, petitioner obtained a loan to cover the

petition in the following manner:

remainder of Rinas school budget for the year.

WHEREFORE, the petition for certiorari is hereby DISMISSED and the

Petitioner concedes that under the law, the obligation to furnish

Order of the lower court dated September 12, 1995 is hereby

support to Rica and Rina should be first imposed upon their parents.

AFFIRMED.25

She contends, however, that the records of this case demonstrate her
as well as respondent Federicos inability to give the support needed

Petitioners Motion for Reconsideration was denied through the

for Rica and Rinas college education. Consequently, the obligation to

Resolution of the Court of Appeals dated 16 May 1996.26

provide support devolves upon respondent Francisco being the

grandfather of Rica and Rina.

Petitioner is now before this Court claiming that the Decision of the
Court of Appeals was tainted with the following errors:

Petitioner also maintains that as respondent Francisco has the financial

resources to help defray the cost of Rica and Rinas schooling, the

RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT

Court of Appeals then erred in sustaining the trial courts Order

RESPONDENT

directing respondent Federico to pay Rica and Rina the amount of

JUDGE

DID

NOT

COMMIT

GRAVE

ABUSE

OF

DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT

award P5,000.00 each as monthly support pendente lite.

PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT A

MEASLEY P5,000.00 PER CHILD.

On the other hand, respondent Francisco argues that the trial court
correctly declared that petitioner and respondent Federico should be

I.

the ones to provide the support needed by their twin daughters

pursuant to Article 199 of the Family Code. He also maintains that

RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE

aside from the financial package availed of by Rica and Rina in the

FINANCIAL INCAPACITY OF RICA AND RINAS PARENTS IN DEFAULT

form of state tuition aid grant, work study program and federal student

OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE

loan program, petitioner herself was eligible for, and had availed

GRANDFATHER.

herself of, the federal parent loan program based on her income and
properties in the USA. He, likewise, insists that assuming he could be

II.

held liable for support, he has the option to fulfill the obligation either
by paying the support or receiving and maintaining in the dwelling

IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE

here in the Philippines the person claiming support.30 As an additional

SUPPORT GRANDFATHER DON PACO IS UNDOUBTEDLY CAPABLE

point to be considered by this Court, he posits the argument that

OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED

because petitioner and her twin daughters are now US citizens, they

IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE

cannot invoke the Family Code provisions on support as "[l]aws

ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT

relating to family rights and duties, or to the status, condition and legal

PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE

capacity of persons are binding upon citizens of the Philippines, even

EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27

though living abroad."31

At the time of the filing of the present Petition, it is alleged that Rica

Respondent Federico, for his part, continues to deny having sired Rica

had already entered Rutgers University in New Jersey with a budget of

and Rina by reiterating the grounds he had previously raised before

US$12,500.00 for academic year 1994-1995. She was able to obtain a

the trial court. Like his father, respondent Federico argues that

tuition fee grant of US$1,190.00 and a Federal Stafford loan from the

assuming he is indeed the father of the twin sisters, he has the option

US government in the amount of US$2,615.00.28 In order to defray the

under the law as to how he would provide support. Lastly, he assents

remaining balance of Ricas education for said school year, petitioner

with the declaration of the trial court and the Court of Appeals that the

claims that she had to secure a loan under the Federal Direct Student

parents of a child should primarily bear the burden of providing

Loan Program.

support to their offspring.

Meanwhile, Rina entered CW Post, Long Island University, where she

The petition is meritorious.

was expected to spend US$20,000.00 for the school year 1994-1995.

She was given a financial grant of US$6,000.00, federal work study
assistance

of

US$2,000.00,

and

Federal

Stafford

loan

of

RULE 61: SUPPORT PENDETE LITE | 95

As a preliminary matter, we deem it necessary to briefly discuss the

thereof, respondent Francisco wrote the names of Rica and

essence of support pendente lite. The pertinent portion of the Rules of

Rina Delgado. He therefore was very well aware that they bear the

Court on the matter provides:

surname Delgado. Likewise, he referred to himself in his letters as

either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989

Rule 61

(Exh. G-21), he said "as the grandfather, am extending a financial help

SUPPORT PENDENTE LITE

of US$1,000.00." On top of this, respondent Federico even gave the

twins a treat to Hongkong during their visit to the Philippines. Indeed,

SECTION 1. Application.- At the commencement of the proper action

respondents, by their actuations, have shown beyond doubt that the

or proceeding, or at any time prior to the judgment or final order, a

twins are the children of Federico.33

verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both

Having addressed the issue of the propriety of the trial courts grant of

parties, and accompanied by affidavits, depositions or other authentic

support pendente lite in favor of Rica and Rina, the next question is

documents in support thereof.

who should be made liable for said award.

x xxx

The pertinent provision of the Family Code on this subject states:

SEC. 4. Order.- The court shall determine provisionally the pertinent

ART. 199. Whenever two or more persons are obliged to give support,

facts, and shall render such orders as justice and equity may require,

the liability shall devolve upon the following persons in the order

having due regard to the probable outcome of the case and such other

herein provided:

circumstances as may aid in the proper resolution of the question

involved. If the application is granted, the court shall fix the amount of

(1) The spouse;

money to be provisionally paid or such other forms of support as

should be provided, taking into account the necessities of the applicant

(2) The descendants in the nearest degree;

and the resources or means of the adverse party, and the terms of
payment or mode for providing the support. If the application is

(3) The ascendants in the nearest degree; and

denied, the principal case shall be tried and decided as early as

possible.

(4) The brothers and sisters.

Under this provision, a court may temporarily grant support pendente

An eminent author on the subject explains that the obligation to give

lite prior to the rendition of judgment or final order. Because of its

support rests principally on those more closely related to the recipient.

provisional nature, a court does not need to delve fully into the merits

However, the more remote relatives may be held to shoulder the

of the case before it can settle an application for this relief. All that a

responsibility should the claimant prove that those who are called upon

court is tasked to do is determine the kind and amount of evidence

to provide support do not have the means to do so.34

which may suffice to enable it to justly resolve the application. It is

enough that the facts be established by affidavits or other

In this case, both the trial court and the Court of Appeals held

documentary evidence appearing in the record.32lavvphi1.net

respondent Federico liable to provide monthly supportpendente lite in

the total amount of P10,000.00 by taking into consideration his

After the hearings conducted on this matter as well as the evidence

supposed income of P30,000.00 toP40,000.00 per month. We are,

presented, we find that petitioner was able to establish, by prima facie

however, unconvinced as to the veracity of this ground relied upon by

proof, the filiation of her twin daughters to private respondents and

the trial court and the Court of Appeals.

the twins entitlement to support pendente lite. In the words of the

trial court

It is a basic procedural edict that questions of fact cannot be the

proper subject of a petition for review under Rule 45 of the 1997 Rules

By and large, the status of the twins as children of Federico cannot be

of Civil Procedure. The rule finds a more stringent application where

denied. They had maintained constant communication with their

the Court of Appeals upholds the findings of fact of the trial court; in

grandfather Francisco. As a matter of fact, respondent Francisco

such a situation, this Court, as the final arbiter, is generally bound to

admitted having wrote several letters to Rica and Rina (Exhs. A, B, C,

adopt the facts as determined by the appellate and the lower courts.

D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom

This rule, however, is not ironclad as it admits of the following

recognized exceptions: "(1) when the findings are grounded entirely

RULE 61: SUPPORT PENDETE LITE | 96

on speculation, surmises or conjectures; (2) when the inference made

Q: It is stated in this letter that "I am making this request to you and

is manifestly mistaken, absurd or impossible; (3) when there is grave

not to your son, Rico, for reasons we both are aware of." Do you know

abuse of discretion; (4) when the judgment is based on a

what reason that is?

misapprehension of facts; (5) when the findings of facts are

conflicting; (6) when in making its findings the Court of Appeals went

A: Yes. The reason is that my son do not have fix employment and do

beyond the issues of the case, or its findings are contrary to the

not have fix salary and income and they want to depend on the lolo.

admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings

x xx xlavvphi1.net

are conclusions without citation of specific evidence on which they are

based; (9) when the facts set forth in the petition as well as in the

Q: Would you have any knowledge if Federico owns a house and lot?

petitioners main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence

A: Not that I know. I do not think he has anything.

of evidence and contradicted by the evidence on record; and (11)

when the Court of Appeals manifestly overlooked certain relevant facts

Q: How about a car?

not disputed by the parties, which, if properly considered, would justify

a different conclusion."35 The case at bar falls within the seventh and

A: Well, his car is owned by my company.39

eleventh exceptions.
Respondent Federico himself admitted in court that he had no property
The trial court gave full credence to respondent Federicos allegation in
his Answer

36

and his testimony

37

of his own, thus:

as to the amount of his income. We

have, however, reviewed the records of this case and found them

Q: You also mentioned that you are staying at Mayflower Building and

bereft of evidence to support his assertions regarding his employment

you further earlier testified that this building belongs to Citadel

and his earning. Notably, he was even required by petitioners counsel

Corporation. Do you confirm that?

to present to the court his income tax return and yet the records of
this case do not bear a copy of said document.38 This, to our mind,

A: Yes, sir.

severely undermines the truthfulness of respondent Federicos

assertion with respect to his financial status and capacity to provide

Q: What car are you driving, Mr. Witness?

support to Rica and Rina.

A: I am driving a lancer, sir.
In addition, respondent Francisco himself stated in the witness stand
that as far as he knew, his son, respondent Federico did not own
anything
"Atty. Lopez:
I have here another letter under the letter head of Mr. & Mrs.
DanyMangonon, dated October 19, 1991 addressed to Mr. Francisco
Delgado signed by "sincerely, Danny Mangonon, can you remember."
x xxx
WITNESS:
A: I do remember this letter because it really irritated me so much that
I threw it away in a waste basket. It is a very demanding letter, that is
what I do not like at all.
ATTY. LOPEZ:

Q: What car, that registered in the name of the corporation?

A: In the corporation, sir.
Q: What corporation is that?
A: Citadel Commercial, Inc., sir.
Q: What properties, if any, are registered in your name, do you have
any properties, Mr. Witness?
A: None, sir."40 (Emphasis supplied.)
Meanwhile, respondent Francisco asserts that petitioner possessed the
capacity to give support to her twin daughters as she has gainful
employment in the USA. He even went as far as to state that
petitioners income abroad, when converted to Philippine peso, was
much higher than that received by a trial court judge here in the
Philippines. In addition, he claims that as she qualified for the federal

RULE 61: SUPPORT PENDETE LITE | 97

parent loan program, she could very well support the college studies of

receiving and maintaining in the family dwelling the person who has a

her daughters.

right to receive support. The latter alternative cannot be availed of in

case there is a moral or legal obstacle thereto.

We are unconvinced. Respondent Franciscos assertion that petitioner

had the means to support her daughters education is belied by the

Under the abovecited provision, the obligor is given the choice as to

fact that petitioner was even forced by her financial status in the USA

how he could dispense his obligation to give support. Thus, he may

to secure the loan from the federal government. If petitioner were

give the determined amount of support to the claimant or he may

really making enough money abroad, she certainly would not have felt

allow the latter to stay in the family dwelling. The second option

the need to apply for said loan. The fact that petitioner was compelled

cannot be availed of in case there are circumstances, legal or moral,

to take out a loan is enough indication that she did not have enough

which should be considered.

money to enable her to send her daughters to college by herself.

Moreover, even Rica and Rina themselves were forced by the

In this case, this Court believes that respondent Francisco could not

circumstances they found themselves in to secure loans under their

avail himself of the second option. From the records, we gleaned that

names so as not to delay their entrance to college.

prior to the commencement of this action, the relationship between

respondent Francisco, on one hand, and petitioner and her twin

There being prima facie evidence showing that petitioner and

daughters,

respondent Federico are the parents of Rica and Rina, petitioner and

correspondences exchanged among them expressed profound feelings

on

the

other,

was

indeed

quite

pleasant.

The

respondent Federico are primarily charged to support their childrens

of thoughtfulness and concern for one anothers well-being. The

college education. In view however of their incapacities, the obligation

photographs presented by petitioner as part of her exhibits presented

to furnish said support should be borne by respondent Francisco.

a seemingly typical family celebrating kinship. All of these, however,

Under Article 199 of the Family Code, respondent Francisco, as the

are now things of the past. With the filing of this case, and the

next immediate relative of Rica and Rina, is tasked to give support to

allegations hurled at one another by the parties, the relationships

his granddaughters in default of their parents. It bears stressing that

among the parties had certainly been affected. Particularly difficult for

respondent Francisco is the majority stockholder and Chairman of the

Rica and Rina must be the fact that those who they had considered

Board of Directors of Citadel Commercial, Incorporated, which owns

and claimed as family denied having any familial relationship with

and manages twelve gasoline stations, substantial real estate, and is

them. Given all these, we could not see Rica and Rina moving back

engaged in shipping, brokerage and freight forwarding. He is also the

here in the Philippines in the company of those who have disowned

majority stockholder and Chairman of the Board of Directors of Citadel

them.

Shipping which does business with Hyundai of Korea. Apart from

these, he also owns the Citadel Corporation which, in turn, owns real

Finally, as to the amount of support pendente lite, we take our

properties in different parts of the country. He is likewise the Chairman

bearings from the provision of the law mandating the amount of

of the Board of Directors of Isla Communication Co. and he owns

support to be proportionate to the resources or means of the giver and

shares of stocks of Citadel Holdings. In addition, he owns real

to the necessities of the recipient.42 Guided by this principle, we hold

properties here and abroad.41 It having been established that

respondent Francisco liable for half of the amount of school expenses

respondent Francisco has the financial means to support his

incurred by Rica and Rina as support pendente lite. As established by

granddaughters education, he, in lieu of petitioner and respondent

petitioner, respondent Francisco has the financial resources to pay this

Federico, should be held liable for supportpendente lite.

amount given his various business endeavors.

Anent respondent Francisco and Federicos claim that they have the

Considering, however, that the twin sisters may have already been

option under the law as to how they could perform their obligation to

done with their education by the time of the promulgation of this

support Rica and Rina, respondent Francisco insists that Rica and Rina

decision, we deem it proper to award support pendente lite in

should move here to the Philippines to study in any of the local

arrears43 to be computed from the time they entered college until they

universities. After all, the quality of education here, according to him,

had finished their respective studies.

is at par with that offered in the USA. The applicable provision of the
Family Code on this subject provides:

The issue of the applicability of Article 15 of the Civil Code on

petitioner and her twin daughters raised by respondent Francisco is

Art. 204. The person obliged to give support shall have the option to

best left for the resolution of the trial court. After all, in case it would

fulfill the obligation either by paying the allowance fixed, or by

be resolved that Rica and Rina are not entitled to support pendente

RULE 61: SUPPORT PENDETE LITE | 98

lite, the court shall then order the return of the amounts already paid
with legal interest from the dates of actual payment.

44

every material allegation contained in the complaint and as a special

defense alleged that he never acknowledged and could not have
acknowledged that he never acknowledged and could not have

WHEREFORE,

premises

considered,

this

Petition

is

PARTIALLY

acknowledged the plaintiff as his son; that he was not present at the

GRANTED. The Decision of the Court of Appeals dated 20 March 1996

baptism of the plaintiff and that he was married at the time it is

and Resolution dated 16 May 1996 affirming the Order dated 12

alleged that the plaintiff was born.

September 1995 of the Regional Trial Court, Branch 149, Makati, fixing
the amount of support pendente lite to P5,000.00 for Rebecca Angela

Notwithstanding this denial of paternity the respondent judge issued

and Regina Isabel, are hereby MODIFIED in that respondent Francisco

the order of May 2, 1935. On May 11, 1935, petitioner moved for the

Delgado is hereby held liable for support pendente lite in the amount

reconsideration of that order on the ground that it was issued in

to be determined by the trial court pursuant to this Decision. Let the

excess of jurisdiction in view of the fact that the civil status of the

records of this case be remanded to the trial court for the

plaintiff was placed in issue by the pleadings; that the plaintiff has no

determination of the proper amount of support pendente lite for

right to monthly support from the defendant until his status as a child

Rebecca Angela and Regina Isabel as well as the arrearages due them

of the latter is finally determined in his favor and that as the

in accordance with this Decision within ten (10) days from receipt

guardian ad litem of the plaintiff admits his lack of means to defray

hereof. Concomitantly, the trial court is directed to proceed with the

even the ordinary expenses of existence it would be impossible for the

trial of the main case and the immediate resolution of the same with

defendant to recover whatever amount he may have advanced to

deliberate dispatch. The RTC Judge, Branch 149, Makati, is further

plaintiff as supportpendente lite, should it finally be decided that he is

directed to submit a report of his compliance with the directive

not the father of the plaintiff.

regarding the support pendente lite within ten (10) days from
The respondent judge, the Honorable Francisco Zandueta, denied that

compliance thereof.

motion, hence the institution of this special proceeding.

SO ORDERED.
This court called upon the respondents to answer the petition. They
G.R. No. L-43794

August 9, 1935

filed a joint answer and alleged, in substance, that case No. 47238 was
set for trial the 29th of April, 1935, and that the attorney for the

LUIS FRANCISCO, petitioner,

defendant in that case filed a motion on April 22, 1935, in which he

vs.

prayed that the trial be transferred; that the hearing on this motion

FRANCISCO ZANDUETA, Judge of First Instance of Manila,

was set for April 27, 1935; that the attorney for the minor filed a

and

motion, on the day set for the hearing of the motion to transfer, in

EUGENIO LEOPOLDO FRANCISCO, represented by his natural

which he prayed that said minor be granted the sum of P30 per month

mother and curator ad litem,

by way of support, pendente lite; that the guardian ad litem opposed

ROSARIO GOMEZ, respondents.

the motion to transfer the trial and that after discussion the attorney of
the herein petitioner in order to secure a transfer agreed that his client

GODDARD, J.:

would pay the minor a pension of P30 per month during the pendency
of that case, No. 47238. The answer of the respondents is supported

This is an original petition for the writ of certiorari whereby the

by the affidavits of the respondent judge and two deputy clerks of the

petitioner, Luis Francisco, seeks to procure the abrogation of an order

Court of First Instance of Manila.

of the respondent judge, dated May 2, 1935, granting the respondent,

Eugenio Leopoldo Francisco, a monthly pension of P30 pendente lite.

In petitioner's reply to respondent's answer, made under oath by the

attorney for the petitioner, in case No. 47238 and in this proceeding, it

It appears that the respondent, Eugenio Leopoldo Francisco, aged two

is alleged that the statements in paragraph for of said answer and

years, through his natural mother and guardian ad litem, Rosario

those in the affidavit, Exhibits A and B, as to the agreement of said

Gomez, instituted an action for support against the herein petitioner in

attorney to the payment of P30 as monthly support, are absolutely

the Court of First Instance of the City of Manila, case No. 47238. In

false.

that case it is alleged that the therein plaintiff is the acknowledged son
of Luis Francisco and as such is entitled to support. The petitioner, as

In order to arrive at a proper solution of this case it is not necessary to

defendant in that case, answered by a general denial of each and

consider the dispute as to whether or not the attorney for the herein

RULE 61: SUPPORT PENDETE LITE | 99

petitioner really agreed that his client should pay P30 per month by

descendants, (3) parents and acknowledged natural children and the

way of support to the plaintiff, pendente lite.

legitimate descendants of the latter, (4) parents and illegitimate

children not having the legal status of natural children and (5) brothers

In the case of Yangco vs. Rohde (1 Phil., 404) the petitioner Yangco

and sisters. In all these cases it is a civil status or a juridical relation

filed in this court a petition for a writ of prohibition, alleging that a

which is the basis of the action for support, the civil status of marriage

complaint

or that of relationship.

had

been

filed,

before

the

respondent

judge,

by

VictorinaObin against the petitioner praying that she be granted a

divorce, a monthly allowance for alimony and attorney's fees during

Paraphrasing the language used in the decision in the Yangco case it

the pendency of the suit; that the said judge ordered the petitioner to

may be said that in the present case the action for support is brought

pay the plaintiff a monthly allowance of two hundred fifty Mexican

by a minor, through his guardian ad litem, who alleges that he is the

pesos; that the plaintiff in the said action owns no property and that

son of the petitioner; therefore it is necessary for him to prove his civil

the respondent judge acted in excess of his jurisdiction in attempting

status as such son. His alleged civil status being in litigation, it is

to oblige the petitioner to pay VictorinaObin said allowance.

evident that nothing can be taken for granted upon the point in issue.
There is no law or reason which authorizes the granting of support to

In that case this court, speaking through Chief Justice Arellano, said:

a person who claims to be a son in the same manner as to a person

who establishes by legal proof that he is such son. In the latter case

In the present case the action for the support or alimony is

the legal evidence raises a presumption of law, while in the former

brought by a woman who alleges that she is a wife;

there is no presumption, there is nothing but a mere allegation, a fact

therefore it is necessary for her to prove possession of the

in issue, and a simple fact in issue must not be confounded with an

civil status of a spouse that is, a marriage, without which

established right recognized by a final judgment. The civil status of

one has no right to the title of husband or wife, . . . .

sonship being denied and this civil status, from which the right to
support is derived, being in issue, it is apparent that no effect can be

This evidence being lacking, and the civil status of marriage

given to such a claim until an authoritative declaration has been made

being in litigation, it is evident that nothing can be taken for

as to the existence of the cause. It is also evident that there is a

granted upon the point in issue. There is no law or reason

substantial difference between the capacity of a person after the

which authorizes the granting of alimony to a person who

rendition of a final judgment in which that person is declared to be in

claims to be a spouse in the same manner as to a person

possession of the status of a son and his capacity prior to such time

who conclusively establishes by legal proof that he or she is

when nothing exists other than his suit or claim to be declared in

such a spouse, and sues for divorce or separation. In this

possession of such a status.

case the legal evidence raises a presumption of law; in the

former there is no presumption, there is nothing but a mere

The Civil Code grants the right of support to a son. This status not

allegation a fact in issue and a simple fact in issue

appearing by a final judgment, the respondent judge was without

must

right

jurisdiction to order the petitioner, as defendant in case No. 47238, to

recognized by a final judgment or based upon a legal

not

be

confounded

with

an

established

pay the plaintiff the sum of P30, or any other amount as monthly

presumption. The civil status of marriage being denied, and

support, pendente lite.

this civil status, from which the right to support is derived,

being in issue, it is difficult to see how any effect can be

In view of the lack of jurisdiction of the respondent judge to grant the

given to such a claim until an authoritative declaration has

plaintiff support, pendente lite, it is evident that the attorney of the

been made as to the existence of the cause. It is evident

defendant in case No. 47283 could not by his alleged consent to the

that there is of necessity a substantial difference between

granting of such support give the trial judge jurisdiction to adjudicate

the capacity of a person after the rendition of a final

such a claim against his client.

judgment in which that person is declared to be in

possession of the status of marriage and his capacity prior to

It is a universal rule of law that parties cannot, by consent,

such time when nothing exists other than his suit or claim to

give a court, as such, jurisdiction in a matter which is

be declared in possession of such status of marriage . . . .

excluded by the laws of the land. In such a case the

question is not whether a competent court has obtained

Under article 143 of the Civil Code the following are bound to support

jurisdiction of a party triable before it, but whether the court

each other: (1) Husband and wife, (2) legitimate ascendants and

itself is competent under any circumstances to adjudicate a

RULE 61: SUPPORT PENDETE LITE | 100

claim against the defendant. And where there is want of

The respondent testified for herself and presented Rodulfo Lopez as

jurisdiction of the subject-matter, a judgment is void as to all

witness. Evidence for the respondent showed that she met the

persons, and consent of parties can never impart to it the

petitioner on December 1, 1992 at the Philippine Commercial and

vitality which a valid judgment derives from the sovereign

Industrial Bank, Maasin, Southern Leyte branch where she had been

state, the court being constituted, by express provision of

hired as a casual employee, while the petitioner worked as accounting

law, as its agent to pronounce its decrees in controversies

supervisor.7 The petitioner started courting the respondent in the third

between its people. (7 R.C.L., 1039.)

week of December 1992 and they became sweethearts in the last

week of January 1993.8 The petitioner gave the respondent greeting

The writ prayed for is granted and the order of the respondent judge

cards on special occasions, such as on Valentines Day and her

of May 2, 1935, ordering the herein petitioner as defendant in case No.

birthday; she reciprocated his love and took care of him when he was

47238 to pay the plaintiff in that case the sum of P30 monthly, as

ill.9

support, pendente lite, is hereby declared null and void, without costs.
Sometime in September 1993, the petitioner started intimate sexual
relations with the respondent in the formers rented room in the

SALAZAR v. SALAZAR (PLEASE FIND CASE)

boarding house managed by Rodulfo, the respondents uncle, on

Tomas Oppus St., Agbao, Maasin, Southern Leyte.10 The petitioner
G.R. No. 165166

rented the room from March 1, 1993 to August 30, 1994.11 The sexual

August 15, 2012

encounters occurred twice a month and became more frequent in June

CHARLES GOTARDO, Petitioner,

1994; eventually, on August 8, 1994, the respondent found out that

vs.

she was pregnant.12 When told of the pregnancy, the petitioner was

DIVINA BULING, Respondent.

happy and made plans to marry the respondent.13 They in fact applied
for a marriage license.14 The petitioner even inquired about the costs
of a wedding reception and the bridal gown.15 Subsequently, however,

VILLARAMA, JR.,*

the petitioner backed out of the wedding plans.16

DECISION
The respondent responded by filing a complaint with the Municipal
Trial Court of Maasin, Southern Leyte for damages against the

BRION, J.:

petitioner for breach of promise to marry.17 Later, however, the

We resolve the petition for review on certiorari, 1 filed by petitioner

petitioner and the respondent amicably settled the case.18

Charles Gotardo, to challenge the March 5, 2004 decision2 and the July
27, 2004 resolution3 of the Court of Appeals (CA) in CA GR CV No.

The respondent gave birth to their son Gliffze on March 9,

76326. The CA decision ordered the petitioner to recognize and

1995.19 When the petitioner did not show up and failed to provide

provide legal support to his minor son, Gliffze 0. Buling. The CA

support to Gliffze, the respondent sent him a letter on July 24, 1995

resolution

demanding recognition of and support for their child.20 When the

denied

the

petitioner's

subsequent

motion

for

petitioner did not answer the demand, the respondent filed her

reconsideration.

complaint for compulsory recognition and support pendente lite.21

FACTUAL BACKGROUND
The petitioner took the witness stand and testified for himself. He
On September 6, 1995, respondent DivinaBuling filed a complaint with

denied the imputed paternity,22 claiming that he first had sexual

the Regional Trial Court (RTC) of Maasin, Southern Leyte, Branch 25,

contact with the respondent in the first week of August 1994 and she

for compulsory recognition and support pendente lite, claiming that the

could not have been pregnant for twelve (12) weeks (or three (3)

petitioner is the father of her child Gliffze.

months) when he was informed of the pregnancy on September 15,

1994.23

In his answer, the petitioner denied the imputed paternity of

Gliffze.5 For the parties failure to amicably settle the dispute, the RTC
6

terminated the pre-trial proceedings. Trial on the merits ensued.

During the pendency of the case, the RTC, on the respondents

motion,24 granted a P2,000.00 monthly child support, retroactive from
March 1995.25

RULE 61: SUPPORT PENDETE LITE | 101

THE RTC RULING

The sole issue before us is whether the CA committed a reversible

error when it set aside the RTCs findings and ordered the petitioner to

In its June 25, 2002 decision, the RTC dismissed the complaint for

recognize and provide legal support to his minor son Gliffze.

insufficiency of evidence proving Gliffzes filiation. It found the

respondents testimony inconsistent on the question of when she had

OUR RULING

her first sexual contact with the petitioner, i.e., "September 1993" in

We do not find any reversible error in the CAs ruling.

her direct testimony while "last week of January 1993" during her
cross-testimony, and her reason for engaging in sexual contact even
after she had refused the petitioners initial marriage proposal. It

We have recognized that "[f]iliation proceedings are usually filed not

ordered the respondent to return the amount of support pendente

just to adjudicate paternity but also to secure a legal right associated

lite erroneously awarded, and to pay P10,000.00 as attorneys fees.

26

with paternity, such as citizenship, support (as in this case) or

inheritance. [In paternity cases, the burden of proof] is on the person

The respondent appealed the RTC ruling to the CA.

27

who alleges that the putative father is the biological father of the
child."31

THE CA RULING
One can prove filiation, either legitimate or illegitimate, through the
In its March 5, 2004 decision, the CA departed from the RTC's

record of birth appearing in the civil register or a final judgment, an

appreciation of the respondents testimony, concluding that the latter

admission of filiation in a public document or a private handwritten

merely made an honest mistake in her understanding of the questions

instrument and signed by the parent concerned, or the open and

of the petitioners counsel. It noted that the petitioner and the

continuous possession of the status of a legitimate or illegitimate child,

respondent had sexual relationship even before August 1994; that the

or any other means allowed by the Rules of Court and special

respondent had only one boyfriend, the petitioner, from January 1993

laws.32 We have held that such other proof of one's filiation may be a

to August 1994; and that the petitioners allegation that the

"baptismal certificate, a judicial admission, a family bible in which his

respondent had previous relationships with other men remained

name has been entered, common reputation respecting [his] pedigree,

unsubstantiated. The CA consequently set aside the RTC decision and

admission by silence, the [testimonies] of witnesses, and other kinds

ordered the petitioner to recognize his minor son Gliffze. It also

of proof admissible under Rule 130 of the Rules of Court."33

reinstated the RTC order granting a P 2,000.00 monthly child

In Herrera v. Alba,34 we stressed that there are four significant

support.28

procedural aspects of a traditional paternity action that parties have to

When the CA denied

29

the petitioners motion for reconsideration,

30

the

petitioner filed the present petition for review on certiorari.

face:

a prima

facie case, affirmative defenses, presumption of

legitimacy, and physical resemblance between the putative father and

the child.35 We explained that a prima facie case exists if a woman

THE PETITION

declares supported by corroborative proof that she had sexual

relations with the putative father; at this point, the burden of evidence

The petitioner argues that the CA committed a reversible error in

shifts to the putative father.36 We explained further that the two

rejecting the RTCs appreciation of the respondents testimony, and

affirmative defenses available to the putative father are: (1)

that the evidence on record is insufficient to prove paternity.

incapability of sexual relations with the mother due to either physical

absence or impotency, or (2) that the mother had sexual relations with

THE CASE FOR THE RESPONDENT

other men at the time of conception.37

The respondent submits that the CA correctly explained that the

In this case, the respondent established a prima facie case that the

inconsistency in the respondents testimony was due to an incorrect

petitioner is the putative father of Gliffze through testimony that she

appreciation of the questions asked, and that the record is replete with

had been sexually involved only with one man, the petitioner, at the

evidence proving that the petitioner was her lover and that they had

time of her conception.38Rodulfo corroborated her testimony that the

several intimate sexual encounters during their relationship, resulting

petitioner and the respondent had intimate relationship.39

in her pregnancy and Gliffzes birth on March 9, 1995.

On the other hand, the petitioner did not deny that he had sexual
THE ISSUE

encounters with the respondent, only that it occurred on a much later

RULE 61: SUPPORT PENDETE LITE | 102

date than the respondent asserted, such that it was physically

considered."43 Evidently, the totality of the respondent's testimony

impossible for the respondent to have been three (3) months pregnant

positively and convincingly shows that no real inconsistency exists. The

already

in

September

pregnancy.40 However,

1994
the

when

petitioner

he

was

failed

to

informed

of

the

respondent has consistently asserted that she started intimate sexual

substantiate

his

relations with the petitioner sometime in September 1993.44

allegations of infidelity and insinuations of promiscuity. His allegations,

therefore, cannot be given credence for lack of evidentiary support.

Since filiation is beyond question, support follows as a matter of

The petitioners denial cannot overcome the respondents clear and

obligation; a parent is obliged to support his child, whether legitimate

categorical assertions.

or illegitimate.45 Support consists of everything indispensable for

sustenance, dwelling, clothing, medical attendance, education and

The petitioner, as the RTC did, made much of the variance between

transportation,

the respondents direct testimony regarding their first sexual contact as

family.

46

in

keeping

with

the

financial

capacity

of

the

"sometime in September 1993" and her cross-testimony when she

no final judgment on the amount of support is made as the amount

stated that their first sexual contact was "last week of January 1993,"

shall be in proportion to the resources or means of the giver and the

as follows:

necessities of the recipient.47 It may be reduced or increased

Thus, the amount of support is variable and, for this reason,

proportionately according to the reduction or increase of the

ATTY. GO CINCO:

necessities of the recipient and the resources or means of the person

obliged to support.48

When did the defendant, according to you, start courting

you?

In this case, we sustain the award of P 2,000.00 monthly child

support, without prejudice to the filing of the proper motion in the RTC

A Third week of December 1992.

for the determination of any support in arrears, considering the needs

of the child, Gliffze, during the pendency of this case.

Q And you accepted him?

WHEREFORE, we hereby DENY the petition for lack of merit. The
A Last week of January 1993.

March 5, 2004 decision and the July 27, 2004 resolution of the Court
of Appeals in CA GR CV No. 76326 are hereby AFFIRMED. Costs

Q And by October you already had your sexual intercourse?

against the petitioner.

A Last week of January 1993.

SO ORDERED.

COURT: What do you mean by accepting?

A I accepted his offer of love.41

G.R. No. 139337

August 15, 2001

MA. CARMINIA C. ROXAS, petitioner,

vs.

We find that the contradictions are for the most part more apparent
than real, having resulted from the failure of the respondent to

HON. COURT OF APPEALS and JOSE ANTONIO F.

ROXAS, respondents.

comprehend the question posed, but this misunderstanding was later

corrected and satisfactorily explained. Indeed, when confronted for her

DE LEON, JR., J.:

contradictory statements, the respondent explained that that portion of

the transcript of stenographic notes was incorrect and she had brought

Before us is a petition for review on certiorari of the Decision1 dated

it to the attention of Atty. Josefino Go Cinco (her former counsel) but

April 21, 1999 and Resolution2 dated July 20, 1999 of the Court of

the latter took no action on the matter.

42

Appeals nullifying the Orders3 dated May 13, 1998, May 19, 1998 and
September 23, 1998 of the Regional Trial Court of Paraaque City,

Jurisprudence teaches that in assessing the credibility of a witness, his

testimony must be considered in its entirety instead of in truncated
parts. The technique in deciphering a testimony is not to consider only
its isolated parts and to anchor a conclusion based on these parts. "In
ascertaining the facts established by a witness, everything stated by
him on direct, cross and redirect examinations must be calibrated and

Branch 260, which found private respondent Jose Antonio F. Roxas

liable to pay support pendente lite and subsequently in contempt of
court after failing to tender the required amount of support pendente

lite.

RULE 61: SUPPORT PENDETE LITE | 103

The antecedent facts are as follows:

incapacity to contribute more than 50% of the childrens

school tuition fees.

On November 4, 1997, petitioner Ma.Carminia C. Roxas filed with the

Regional Trial Court of Paraaque City, Civil Case No. 97-0523, which

The court has painstakingly reviewed the item included in

is an action for declaration of nullity of marriage on the ground of

Exhibit "A", and found the same reasonable, xxx.

psychological incapacity on the part of her husband, Jose Antonio F.

for

Under Art. 49 of the Family Code, there being no written

supportpendente lite for their four (4) minor children. The case was

agreement between the plaintiff and the defendant for the

raffled to Branch 257 of the Regional Trial Court of Paraaque City

adequate support of their minor children xxx, this Court finds

presided by Judge Rolando C. How. But the petitioner, soon thereafter,

the prayer for support pendente lite to be in order.

filed in the said RTC Branch 257 a Notice of Dismissal dated November

Accordingly, the defendant is hereby ordered to contribute

20, 1997, to dismiss the complaint, without prejudice, pursuant to the

to the support of the above-named minors, (aside from 50%

provision of Section 1, Rule 17, of the 1997 Rules of Civil Procedure,

of their school tuition fees which the defendant has agreed

considering that summons has not yet been served and no responsive

to defray, plus expenses for books and other supplies), the

pleading has yet been filed.

sum of P42,292.50 per month, effective May 1, 1998, as his

Roxas,

private

respondent

herein,

with

an

application

share in the monthly support of the children until further

The same complaint, now docketed as Civil Case No. 97-0608, was re-

orders from this Court. xxx. All expenses for books and other

filed on November 25, 1997. It was raffled in due course to Branch

school supplies shall be shouldered by the plaintiff and the

260 of the Regional Trial Court of Paraaque City presided by Judge

defendant, share and share alike. Finally, it is understood

Helen Bautista-Ricafort.

that any claim for support-in-arrears prior to May 1, 1998,

may be taken up later in the course of the proceedings

On May 13, 1998, when the case was called for a pre-trial conference,

proper.

the matter of plaintiffs (petitioners) application for support pendente

lite of their four (4) minor children was taken up. Judge Bautista-

On July 22, 1998, the petitioner filed a manifestation and motion

Ricafort received evidence on the application for support pendente lite.

praying the trial court to cite private respondent in contempt of court

The private respondent and her counsel, Atty. Alberto Diaz,

in accordance with Section 5, Rule 61 of the 1997 Rules of Civil

participated in that proceedings by conducting an extensive cross-

Procedure, after the latter failed to comply with the said Order dated

examination of the petitioner. The trial court then issued its Order

May 19, 1998 of the trial court. Private respondent, through his

dated May 13, 1998 declaring the proceedings on the application for

counsel, Atty. Alberto Diaz, filed a counter-manifestation and motion

support pendenteliteterminated and deemed submitted for resolution;

admitting that "xxx there is really no genuine issue as to his obligation

and as prayed for by the parties, also set the case for pre-trial on June

and willingness to contribute to the expenses for the support of his

15, 1998 at 8:30 a.m.1wphi1.nt

minor children xxx. He simply wants to make sure that whatever funds
he provides for the purpose will go to the expenses for which they are

On May 19, 1998, Judge Bautista-Ricafort, issued an Order4 granting

intended."5Thus, he prayed that the manner and mode of payment of

the application for support pendente lite, the pertinent portion of

his contribution to the expenses of his minor children be modified such

which reads:

that he will pay directly to the entities or persons to which the

payment for such expenses are intended. On September 23, 1998,

xxx

xxx

xxx

Judge

Bautista-Ricafort

issued

an

Order6 directing

the

private

respondent "to comply fully with the Order of this Court dated May 19,
The plaintiff, testifying under oath, submitted Exhibit "A"

1998 by updating payment of his share in the support of the minor

itemizing the expenses incurred for the support of the

children, pendente lite, covering the period May 1998 to September

children over a period of time during their stay at Ayala-

1998, within five (5) days from his receipt hereof xxx under pain of

Alabang; and showed that their total monthly average

legal sanctions if he still fails to do so. xxx."

expense is P84,585.00, or P42,292.50 per month, per

spouse. Interestingly, the defendant did not adduce any

On September 28, 1998, or about four (4) months later, private

evidence to dispute the figures presented to the Court by

respondent, through his new counsel, Atty. Francisco Ma.Guerrerro,

the plaintiff, nor did he present proof of his financial

filed an Omnibus Motion (1) applying to be authorized to discharge

Atty. Alberto Diaz as his counsel and to substitute him with the new

RULE 61: SUPPORT PENDETE LITE | 104

counsel; (2) to re-open hearing on the Motion for Support Pendente

On April 21, 1999, the Court of Appeals rendered a Decision in favor of

Lite; and (3) to temporarily stay execution of the Orders dated May 19,

private respondent, the dispositive portion of which states:

1998 and September 23, 1998. The omnibus motion was set for
hearing on October 2, 1998. Private respondent requested that before

WHEREFORE, being meritorious, the instant petition is

the omnibus motion is heard the May 19, 1998 Order be temporarily

GRANTED. Consequently, all the proceedings/actions taken

suspended. When the presiding judge did not grant that request of

by respondent Judge on the matter of support pendente

private respondent, the latters new counsel refused to proceed with

lite in Civil Case No. 97-0608 (formerly Civil Case No. 97-

the hearing of his omnibus motion.

0523) are hereby declared NULL and VOID, and said CASE is
ordered RETURNED to Branch 257 of the Regional Trial

On October 8, 1998, Judge Bautista-Ricafort issued an Order giving

Court of Paraaque City, for appropriate proceedings.

private respondent ten (10) days to comply with the May 19, 1998
SO ORDERED.8

Order, otherwise, he would be cited for contempt of court.

On October 23, 1998, private respondent filed with the Court of

The appellate court nullified the Orders and the proceedings of the trial

Appeals a petition for certiorari questioning the Orders of the trial

court for the reason that the certificate of non-forum shopping of the

court dated May 19, 1998, September 23, 1998 and October 8, 1998.

petitioner did not mention the prior filing of Civil Case No. 97-0523
before the sala of Judge How and the dismissal thereof without

Meanwhile, on November 27, 1998, Judge Bautista-Ricafort issued

prejudice. The decision of the appellate court elaborated the reasons

another Order,7 the dispositive portion of which reads:

for the granting of the petition, to wit:

xxx

xxx

xxx

xxx

xxx

xxx

Accordingly, and on the strength of the provisions of Sec. 5

While a complaint may be dismissed by the plaintiff by filing

Rule 61 of the 1997 Rules of Civil Procedure, the defendant

a notice of dismissal at any time before service of the

(herein private respondent) is hereby pronounced guilty of

answer (Sec. 1, Rule 17), there is however a need to state

Contempt of Court, and is hereby ordered arrested and

the fact of prior filing and dismissal thereof in the

confined at the City Jail of Paraaque City, Metro Manila,

certification on non-forum shopping, in the event the

without bail, and as long as he has not complied with and

complaint is refiled, as in this case. This must be so in order

obeyed in full the Order of this Court dated May 19, 1998 by

to prevent the plaintiff or principal party from invoking

updating his monthly contribution of P42,292.50 for the

Section 1 of Rule 17 in the hope that, if and when refiled,

period of May 1998 to the date, giving the said amount

the complaint will be raffled to a more sympathetic judge.

directly to the plaintiff, or depositing it with the Clerk of

To the mind of the Court, private respondent availed of

Court, who shall therefor (issue) the corresponding receipts.

Section 1 of Rule 17 not for any other reason or purpose

xxx

xxx

xxx

than to take the case out of the sala of Judge How and to
have it assigned to another. This belief finds support from

Private respondent was arrested by the agents of the National Bureau

the fact that private respondents lawyer and respondent

of Investigation (NBI) on December 14, 1998 but he was released on

Judge were classmates at the UP College of Law.

the following day after the appellate court temporarily enjoined Judge
Bautista-Ricafort from enforcing her November 27, 1998 Order as well

Not only that. While private respondent actually resides in

as her Orders dated May 19, 1998, September 23, 1998, and October

Ayala Alabang, Muntinlupa City, it was made to appear in

8, 1998. When the temporary restraining order lapsed on March 11,

the complaint that she is a resident of Paraaque City,

1998, the respondent was again arrested by virtue of a warrant of

where respondent Judge is one of the RTC Judges. While

arrest issued by Judge Bautista-Ricafort. After depositing with the clerk

the question of venue was not properly raised on time, this

of court of the trial court the amount of support in arrears stated in

circumstance is being cited to support petitioners charge of

the Orders of the trial court, private respondent was released from

forum-shopping.

custody.
xxx

xxx

xxx

RULE 61: SUPPORT PENDETE LITE | 105

Needless to say, forum-shopping merits such serious

IV

sanctions as those prescribed in Section 5, Rule 7 of the

1997 Rules of Civil Procedure. Considering, however, that

DID THE HONORABLE COURT OF APPEALS ERR IN

when

substantial

ORDERING THAT CIVIL CASE NO. 97-0523 RAFFLED TO

proceedings had as yet been taken by the court to which it

JUDGE RICAFORT BE "RETURNED" TO JUDGE HOW OF

was first raffled, and that the dismissal thereof was then a

BRANCH 257 OF THE RTC OF PARANAQUE CITY?

the

complaint

was

withdrawn,

no

matter or (sic) right, the Court is not inclined to impose any

of the said sanctions. Instead, for the peace of mind of

In other words, if a case is dismissed without prejudice upon the filing

petitioner who entertains some doubts on the impartiality of

by the plaintiff of a notice of dismissal pursuant to Section 1 of Rule

respondent Judge, the annulment case should be returned

17, before the service of the answer or responsive pleading, would the

to Branch 257 of the RTC of Paraaque City, to which it was

subsequent re-filing of the case by the same party require that the

originally raffled. And, to enable the Presiding Judge of said

certificate of non-forum shopping state that a case involving the same

Branch to act on the matter of support pendente lite, which

issues and parties was filed and dismissed without prejudice

gave rise to this petition for certiorari and disqualification,

beforehand? Would the omission of such a statement in the certificate

the proceedings/actions taken by respondent Judge relative

of non-forum shopping render null and void the proceedings and

thereto should be set aside, the same having been attended

orders issued by the trial court in the re-filed case?

with grave abuse of discretion.9

It is our considered view and we hold that the proceedings and orders
xxx

xxx

issued

xxx

by

Judge

Bautista-Ricafort

in

the

application

for

support pendente lite (and the main complaint for annulment of

In the instant petition the petitioner poses the following statement of

marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were

issues, to wit:

not rendered null and void by the omission of a statement in the

certificate of non-forum shopping regarding the prior filing and
I

dismissal without prejudice of Civil Case No. 97-0523 which involves

the same parties and issues.

DID THE HONORABLE COURT OF APPEALS ERR IN

HOLDING THE HEREIN PETITIONER GUILTY OF FORUM

Section 5 of Rule 7 of the 1997 Rules of Civil Procedure provides that:

SHOPPING?
SEC. 5. Certification against forum shopping. The plaintiff
II

or principal party shall certify under oath in the complaint or

other initiatory pleading asserting a claim for relief, or in a

DID THE HONORABLE COURT OF APPEALS ERR IN

sworn certification annexed thereto and simultaneously filed

NULLIFYING JUDGE RICAFORTS ORDER OF SUPPORT

therewith: (a) that he has not theretofore commenced any

PENDENTE

IMPLEMENTING

action or filed any claim involving the same issues in any

ORDERS WHICH IT WAS HER JUDICIAL DUTY TO ISSUE

court, tribunal or quasi-judicial agency and, to the best of his

UNDER ART. 49 OF THE FAMILY CODE AND OTHER

knowledge, no such other action or claim is pending therein;

RELATED PROVISIONS OF LAW?

(b) if there is such other pending action or claim, a complete

LITE

AND

HER

RELATED

statement of the present status thereof; and (c) if he should

III

thereafter learn that the same or similar action or claim has

been filed or is pending, he shall report that fact within five

DID THE HONORABLE COURT OF APPEALS ERR IN

(5) days therefrom to the court wherein his aforesaid

NULLIFYING THE PROCEEDINGS ALREADY HELD BEFORE

complaint or initiatory pleading has been filed.

JUDGE RICAFORT AFFECTING HER QUESTIONED ORDERS,

AT THE SAME TIME IMPLIEDLY UPHOLDING THE VALIDITY

Failure to comply with the foregoing requirements shall not

OF THE REST OF THE PROCEEDINGS INCLUDING THE

be curable by mere amendment of the complaint or other

TRIAL ON THE MERITS OF THE CASE FOR ANNULMENT OF

initiatory pleading but shall be cause for the dismissal of the

MARRIAGE?

case without prejudice, unless otherwise provided, upon

motion and after hearing. The submission of a false

RULE 61: SUPPORT PENDETE LITE | 106

certification or non-compliance with any of the undertakings

Civil Procedure. To use the wording of that rule, Judge Hows order is

therein shall constitute indirect contempt of court, without

one merely "confirming the dismissal" of the complaint by the plaintiff

prejudice to the corresponding administrative and criminal

(herein petitioner). Neither is there res judicata for the reason that the

actions. If the acts of the party or his counsel clearly

order of dismissal was not a decision on the merits but a dismissal

constitute willful and deliberate forum shopping, the same

"without prejudice".

shall be ground for summary dismissal with prejudice and

shall constitute direct contempt as well as a cause for

Thus, private respondents apprehension that the case was dismissed

administrative sanctions. (n)

in order to be transferred to the sala of a judge who is allegedly more

sympathetic to the petitioners cause is baseless and not a valid reason

Forum shopping is an act of a party against whom an adverse

to declare the petitioner guilty of forum shopping. First, the petitioner

judgment has been rendered in one forum of seeking and possibly

is not assured that the case would be raffled to a more sympathetic

getting a favorable opinion in another forum, other than by appeal or

judge. There are five (5) RTC branches in Paraaque, namely, branch

the special civil action of certiorari, or the institution of two or more

nos. 257, 258, 259, 260 and 274. Second, Judge Bautista-Ricafort of

actions or proceedings grounded on the same cause on the

RTC of Paraaque, Branch 260, is presumed to be fair and impartial

supposition that one or the other court would make a favorable

despite private respondents claim that she is an alleged law school

disposition. The language of the Supreme Court circular (now the

classmate of the petitioners counsel. In any event, at the slightest

above-quoted Section 5, Rule 7, 1997 Rules of Civil Procedure)

doubt of the impartiality of the said trial judge, private respondent

distinctly suggests that it is primarily intended to cover an initiatory

could have filed before the same judge a motion for her inhibition on

pleading or an incipient application of a party asserting a claim for

that ground. But private respondent did not.

relief.10 The most important factor in determining the existence of

forum shopping is the "vexation caused the courts and parties-litigants

Private respondent is also estopped in questioning the proceedings and

by a party who asks different courts to rule on the same or related

orders of Judge Bautista-Ricafort. He tacitly acknowledged the validity

causes or grant the same or substantially the same reliefs."

11

of the proceedings and the orders issued by the said trial judge by
participating

actively

in

the

hearing

on

the

application

for

Since a party resorts to forum shopping in order to increase his

support pendente lite and by praying for the modification of the Order

chances of obtaining a favorable decision or action, it has been held

of May 19, 1998 in that he should be allowed to directly pay to the

that a party cannot be said to have sought to improve his chances of

persons or entities to which payments of such expenses are intended

obtaining a favorable decision or action where no unfavorable decision

in connection with the required support pendente lite of their minor

has ever been rendered against him in any of the cases he has

children. Private respondent cannot validly claim that he was not ably

brought before the courts.12 Forum shopping exists where the

and sufficiently represented by his first counsel, Atty. Diaz, especially

elements of litispendencia are present, and where a final judgment in

during the hearing on that incident on May 13, 1998 when he himself

one case will amount to res judicata in the other.13 For the principle

was present thereat.

of res judicata to apply, the following must be present: (1) a decision

on the merits; (2) by a court of competent jurisdiction; (3) the decision

It is also too late for the private respondent to claim wrong venue in

is final; and (4) the two actions involve identical parties, subject matter

the Regional Trial Court of Paraaque City as a alleged proof of forum

and causes of action.

14

shopping. He should have raised that ground in his answer or in a

motion to dismiss. But he did not, so it is deemed waived. Besides,

In the case at bar, there was no adverse decision against the

petitioner is also a resident of Paraaque where the family of her

petitioner in Civil Case No. 97-0523 which was the first case filed and

parents reside.

raffled to the sala (Branch 257) of Judge How. The dismissal without
prejudice of the complaint in Civil Case No. 97-0523 at the instance of

Considering that the complaint in Civil Case No. 97-0523 was

the petitioner was pursuant to Section 1, Rule 17 of the 1997 Rules of

dismissed without prejudice by virtue of the plaintiffs (herein

considering that it was done before service of answer

petitioners) Notice of Dismissal dated November 20, 1997 filed

or any responsive pleading. The dismissal does not amount

pursuant to Section 1, Rule 17, of the 1997 Rules of Civil Procedure,

to litispendencia nor to res judicata. There is no litispendencia since

there is no need to state in the certificate non-forum shopping in Civil

the first case before Judge How was dismissed or withdrawn by the

Case No. 97-0608 about the prior filing and dismissal of Civil Case No.

plaintiff (herein petitioner), without prejudice, upon her filing of a

97-0523. In Gabionza v. Court of Appeals,16 we ruled that it is scarcely

notice of dismissal, pursuant to Section 1, Rule 17 of the 1997 Rules of

necessary to add that Circular No. 28-91 (now Section 5, Rule 7 of the

Civil Procedure

15

RULE 61: SUPPORT PENDETE LITE | 107

1997 Rules of Civil Procedure) must be so interpreted and applied as

WHEREFORE, the Decision and Resolution dated April 21, 1999 and

to achieve the purposes projected by the Supreme Court when it

July

promulgated that Circular. Circular No. 28-91 was designed to serve as

hereby REVERSED, and the Orders dated May 13, 1998, May 19,

an instrument to promote and facilitate the orderly administration of

1998 and September 23, 1998 of the Regional Trial Court of

justice and should not be interpreted with such absolute literalness as

Paraaque City, Branch 260, are REINSTATED.

20,

1999

respectively,

of

the

Court

of

Appeals

are

to subvert its own ultimate and legitimate objective or the goal of all
rules or procedure which is to achieve substantial justice as

SO ORDERED.

expeditiously as possible. The fact that the Circular requires that it be

strictly complied with merely underscores its mandatory nature in that

G.R. No. 185595

January 9, 2013

it cannot be dispensed with or its requirements altogether disregarded,

but it does not thereby interdict substantial compliance with its

MA. CARMINIA C. CALDERON represented by her Attorney-In-

provisions under justifiable circumstances.17

Fact, Marycris V. Baldevia, Petitioner,

vs.

Thus, an omission in the certificate of non-forum shopping about any

JOSE ANTONIO F. ROXAS and COURT OF

event that would not constitute res judicataand litispendencia as in the

APPEALS, Respondents.

case at bar, is not fatal as to merit the dismissal and nullification of the
entire proceedings considering that the evils sought to be prevented

DECISION

by the said certificate are not present. It is in this light that we ruled
in Maricalum

Mining

Corp.

v.

National

Labor

Relations

VILLARAMA, JR., J.:

Commission18 that a liberal interpretation of Supreme Court Circular

No. 04-94 on non-forum shopping would be more in keeping with the

Before us is a petition for review on certiorari under Rule 45 assailing

objectives of procedural rules which is to "secure a just, speedy and

the

inexpensive disposition of every action and proceeding."

December 15, 2008 of the Court of Appeals (CA) in CA-G.R. CV No.

Decision1 dated

September

9,

2008

and

Resolution2 dated

85384. The CA affirmed the Orders dated March 7, 2005 and May 4,
For a party to be adjudged guilty of forum shopping in the trial courts,

2005 of the Regional Trial Court (RTC) of Paraaque City, Branch 260

a motion to dismiss on the ground of either litispendencia or res

in Civil Case No. 97-0608.

judicata must be filed before the proper trial court and a hearing
conducted thereon in accordance with Section 5, Rule 7 of the 1997

Petitioner Ma.Carminia C. Calderon and private respondent Jose

Rules of Civil Procedure. The same ground cannot be raised in a

Antonio F. Roxas, were married on December 4, 1985 and their union

petition for certiorari before the appellate court while the main action

produced four children. On January 16, 1998, petitioner filed an

in the trial court is still pending for the reason that such ground for a

Amended Complaint3 for the declaration of nullity of their marriage on

motion to dismiss can be raised before the trial court any time during

the ground of psychological incapacity under Art. 36 of the Family

the proceedings and is not barred by the filing of the answer to the

Code of the Philippines.

complaint.

19

On May 19, 1998, the trial court issued an Order4 granting petitioners
The petition for certiorari in the case at bar on the ground of alleged

application for support pendente lite. Said order states in part:

forum shopping in the trial court is premature for the reason that there
is an adequate and speedy remedy available in the ordinary course of

Accordingly, the defendant is hereby ordered to contribute to the

law to private respondent, i.e., a motion to dismiss or a motion for

support of the above-named minors, (aside from 50% of their school

either litispendencia or res

tuition fees which the defendant has agreed to defray, plus expenses

judicata before the trial court. But private respondent did not file such

for books and other school supplies), the sum of P42,292.50 per

a motion based on either of said grounds. And where the ground is

month, effective May 1, 1998, as his share in the monthly support of

short of res judicata or litispendencia, as in the case at bar, the Court

the children, until further orders from this Court. The first monthly

of Appeals acted with grave abuse of discretion amounting to excess

contribution, i.e., for the month of May 1998, shall be given by the

of jurisdiction when it granted the petition for certiorari filed by herein

defendant to the plaintiff within five (5) days from receipt of a copy of

private respondent. The trial court should have been given an

this Order. The succeeding monthly contributions of P42,292.50 shall

opportunity to rule on the matter of alleged forum shopping in

be directly given by the defendant to the plaintiff without need of any

consonance with the hierarchy of courts.

demand, within the first five (5) days of each month beginning June

reconsideration

on

the

ground

of

RULE 61: SUPPORT PENDETE LITE | 108

1998. All expenses for books and other school supplies shall be

his minor children during the pendency of the action; (5) there is no

shouldered by the plaintiff and the defendant, share and share alike.

proof presented by petitioner that she is not gainfully employed, the

Finally, it is understood that any claim for support-in-arrears prior to

spouses being both medical doctors; (6) the unrebutted allegation of

May 1, 1998, may be taken up later in the course of the proceedings

private respondent that petitioner is already in the United States; and

proper.

(7) the alleged arrearages of private respondent was not substantiated

by petitioner with any evidence while private respondent had duly

x xxx

complied with his obligation as ordered by the court through his

overpayments in other aspects such as the childrens school tuition

SO ORDERED.5

fees, real estate taxes and other necessities.

The aforesaid order and subsequent orders for support pendente lite

Petitioners motion for partial reconsideration of the March 7, 2005

were the subject of G.R. No. 139337 entitled "Ma. Carminia C. Roxas

Order was denied on May 4, 2005.10

v. Court of Appeals and Jose Antonio F. Roxas" decided by this Court

on August 15, 2001.6 The Decision in said case declared that "the

On May 16, 2005, the trial court rendered its Decision11 in Civil Case

proceedings and orders issued by the trial court in the application for

No. 97-0608 decreeing thus:

support pendente lite (and the main complaint for annulment of

marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were

WHEREFORE, judgment is hereby rendered declaring (sic):

not rendered null and void by the omission of a statement in the

certificate of non-forum shopping regarding the prior filing and

1. Declaring null and void the marriage between plaintiff Ma.Carmina

dismissal without prejudice of Civil Case No. 97-0523 which involves

C. Roxas and defendant Jose Antonio Roxas solemnized on December

the same parties." The assailed orders for support pendente lite were

4, 1985 at San Agustin Convent, in Manila. The Local Civil Registrar of

thus reinstated and the trial court resumed hearing the main case.

Manila is hereby ordered to cancel the marriage contract of the parties

as appearing in the Registry of Marriage as the same is void;

On motion of petitioners counsel, the trial court issued an Order dated

October 11, 2002 directing private respondent to give support in the

2. Awarding the custody of the parties minor children Maria Antoinette

amount of P42,292.50 per month starting April 1, 1999 pursuant to the

Roxas, Julian Roxas and Richard Roxas to their mother herein

May 19, 1998 Order.

petitioner, with the respondent hereby given his visitorial and or

custodial rights at [sic] the express conformity of petitioner.

On February 11, 2003, private respondent filed a Motion to Reduce

Support citing, among other grounds, that the P42,292.50 monthly

3. Ordering the respondent Jose Antonio Roxas to provide support to

support for the children as fixed by the court was even higher than his

the children in the amount of P30,000.00 a month, which support shall

then P20,800.00 monthly salary as city councilor.

be given directly to petitioner whenever the children are in her

custody, otherwise, if the children are in the provisional custody of

After hearing, the trial court issued an Order9 dated March 7, 2005

respondent, said amount of support shall be recorded properly as the

granting the motion to reduce support and denying petitioners motion

amounts are being spent. For that purpose the respondent shall then

for spousal support, increase of the childrens monthly support

render a periodic report to petitioner and to the Court to show

pendente lite and support-in-arrears. The trial court considered the

compliance and for monitoring. In addition, the respondent is ordered

following

and

to support the proper schooling of the children providing for the

testimonial evidence: (1) the spouses eldest child, Jose Antonio, Jr. is

circumstances

well-supported

by

documentary

payment of the tuition fees and other school fees and charges

a SangguniangKabataan Chairman and is already earning a monthly

including transportation expenses and allowances needed by the

salary; (2) all the children stay with private respondent on weekends in

children for their studies.

their house in Pasay City; (3) private respondent has no source of

income except his salary and benefits as City Councilor; (4) the

4. Dissolving the community property or conjugal partnership property

voluminous documents consisting of official receipts in payment of

of the parties as the case may be, in accordance with law.

various billings including school tuition fees, private tutorials and

purchases of childrens school supplies, personal checks issued by

Let copies of this decision be furnished the Office of the Solicitor

private respondent, as well as his own testimony in court, all of which

General, the Office of the City Prosecutor, Paranaque City, and the City

substantiated his claim that he is fulfilling his obligation of supporting

Civil Registrar of Paranaque City and Manila.

RULE 61: SUPPORT PENDETE LITE | 109

SO ORDERED.12

to be done by the Court except to await the parties next move (which
among others, may consist of the filing of a motion for new trial or

On June 14, 2005, petitioner through counsel filed a Notice of Appeal

reconsideration, or the taking of an appeal) and ultimately, of course,

from the Orders dated March 7, 2005 and May 4, 2005.

to cause the execution of the judgment once it becomes "final" or, to

use the established and more distinctive term, "final and executory."

In her appeal brief, petitioner emphasized that she is not appealing the
Decision dated May 16, 2005 which had become final as no appeal

x xxx

therefrom had been brought by the parties or the City Prosecutor or

the Solicitor General. Petitioner pointed out that her appeal is "from

Conversely, an order that does not finally dispose of the case, and

the RTC Order dated March 7, 2005, issued prior to the rendition of

does not end the Courts task of adjudicating the parties contentions

the decision in the main case", as well as the May 4, 2005 Order

and determining their rights and liabilities as regards each other, but

denying her motion for partial reconsideration.

13

obviously indicates that other things remain to be done by the Court, is

"interlocutory" e.g., an order denying a motion to dismiss under Rule

By Decision dated September 9, 2008, the CA dismissed the appeal on

16 of the Rules, or granting a motion for extension of time to file a

the ground that granting the appeal would disturb the RTC Decision of

pleading, or authorizing amendment thereof, or granting or denying

May 16, 2005 which had long become final and executory. The CA

applications for postponement, or production or inspection of

further noted that petitioner failed to avail of the proper remedy to

documents or things, etc. Unlike a "final" judgment or order, which is

question an interlocutory order.

appealable, as above pointed out, an "interlocutory" order may not be

questioned on appeal except only as part of an appeal that may

Petitioners motion for reconsideration was likewise denied by the CA.

eventually be taken from the final judgment rendered in the

case.15 [Emphasis supplied]

Hence, this petition raising the following issues:

The assailed orders relative to the incident of support pendente lite
A. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION

and support in arrears, as the term suggests, were issued pending the

and/or REVERSIBLE ERROR WHEN IT RULED THAT THE RTC

rendition of the decision on the main action for declaration of nullity of

ORDERS DATED MARCH 7, 2005 AND MAY 4, 2005 ARE

marriage, and are therefore interlocutory. They did not finally dispose

MERELY INTERLOCUTORY?

of the case nor did they consist of a final adjudication of the merits of
petitioners claims as to the ground of psychological incapacity and

B. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION

and/or

REVERSIBLE

ERROR

WHEN

IT

other incidents as child custody, support and conjugal assets.

DISMISSED

OUTRIGHT THE APPEAL FROM SAID RTC ORDERS, WHEN IT

The Rules of Court provide for the provisional remedy of support

SHOULD HAVE DECIDED THE APPEAL ON THE MERITS?14

pendente lite which may be availed of at the commencement of the

proper action or proceeding, or at any time prior to the judgment or

The core issue presented is whether the March 7, 2005 and May 4,

final order.16 On March 4, 2003, this Court promulgated the Rule on

2005 Orders on the matter of support pendente lite are interlocutory

Provisional Orders17 which shall govern the issuance of provisional

or final.

orders during the pendency of cases for the declaration of nullity of

marriage, annulment of voidable marriage and legal separation. These

This Court has laid down the distinction between interlocutory and final

include orders for spousal support, child support, child custody,

orders, as follows:

visitation rights, hold departure, protection and administration of

common property.

x xx A "final" judgment or order is one that finally disposes of a case,

leaving nothing more to be done by the Court in respect thereto, e.g.,

Petitioner contends that the CA failed to recognize that the

an adjudication on the merits which, on the basis of the evidence

interlocutory aspect of the assailed orders pertains only to private

presented at the trial, declares categorically what the rights and

respondents motion to reduce support which was granted, and to her

obligations of the parties are and which party is in the right; or a

own motion to increase support, which was denied. Petitioner points

judgment or order that dismisses an action on the ground, for

out that the ruling on support in arrears which have remained unpaid,

instance, of res judicata or prescription. Once rendered, the task of the

as well as her prayer for reimbursement/payment under the May 19,

Court is ended, as far as deciding the controversy or determining the

1998 Order and related orders were in the nature of final orders

rights and liabilities of the litigants is concerned. Nothing more remains

RULE 61: SUPPORT PENDETE LITE | 110

assailable by ordinary appeal considering that the orders referred to

Under Section 1, Rule 41 of the 1997 Revised Rules of Civil Procedure,

under Sections 1 and 4 of Rule 61 of the Rules of Court can apply only

as amended, appeal from interlocutory orders is not allowed. Said

prospectively. Thus, from the moment the accrued amounts became

provision reads:

due and demandable, the orders under which the amounts were made
payable by private respondent have ceased to be provisional and have

SECTION 1.Subject of appeal. - An appeal may be taken from a

become final.

judgment or final order that completely disposes of the case, or of a

particular matter therein when declared by these Rules to be

We disagree.

appealable.

The word interlocutory refers to something intervening between the

No appeal may be taken from:

commencement and the end of the suit which decides some point or
matter but is not a final decision of the whole controversy.18 An

(a)

interlocutory order merely resolves incidental matters and leaves

reconsideration;

An

order

denying

motion

for

new

trial

or

something more to be done to resolve the merits of the case. In

contrast, a judgment or order is considered final if the order disposes

(b) An order denying a petition for relief or any similar

of the action or proceeding completely, or terminates a particular stage

motion seeking relief from judgment;

of the same action.

19

Clearly, whether an order or resolution is final or

interlocutory is not dependent on compliance or non-compliance by a

(c) An interlocutory order;

party to its directive, as what petitioner suggests. It is also important

to emphasize the temporary or provisional nature of the assailed

(d) An order disallowing or dismissing an appeal;

orders.
(e) An order denying a motion to set aside a judgment by
Provisional remedies are writs and processes available during the

consent, confession or compromise on the ground of fraud,

pendency of the action which may be resorted to by a litigant to

mistake or duress, or any other ground vitiating consent;

preserve and protect certain rights and interests therein pending

rendition, and for purposes of the ultimate effects, of a final judgment

(f) An order of execution;

in the case. They are provisional because they constitute temporary

measures availed of during the pendency of the action, and they are

(g) A judgment or final order for or against one or more of

ancillary because they are mere incidents in and are dependent upon

several parties or in separate claims, counterclaims, cross-

the result of the main action.

20

The subject orders on the matter of

support pendente lite are but an incident to the main action for

claims and third-party complaints, while the main case is

pending, unless the court allows an appeal therefrom; and

declaration of nullity of marriage.

(h) An order dismissing an action without prejudice;
Moreover, private respondents obligation to give monthly support in
the amount fixed by the RTC in the assailed orders may be enforced

In all the above instances where the judgment or final order is not

by the court itself, as what transpired in the early stage of the

appealable, the aggrieved party may file an appropriate special civil

proceedings when the court cited the private respondent in contempt

action under Rule 65. (Emphasis supplied.)

of court and ordered him arrested for his refusal/failure to comply with
the order granting support pendente lite.21 A few years later, private

The remedy against an interlocutory order not subject of an appeal is

respondent filed a motion to reduce support while petitioner filed her

an appropriate special civil action under Rule 65 provided that the

own motion to increase the same, and in addition sought spousal

interlocutory order is rendered without or in excess of jurisdiction or

support and support in arrears. This fact underscores the provisional

with grave abuse of discretion. Having chosen the wrong remedy in

character of the order granting support pendente lite. Petitioners

questioning the subject interlocutory orders of the RTC, petitioner's

theory that the assailed orders have ceased to be provisional due to

the

arrearages

untenable.1wphi1

incurred

by

private

respondent

is

appeal was correctly dismissed by the CA.

therefore
WHEREFORE, the petition for review on certiorari is DENIED, for lack
of merit. The Decision dated September 9, 2008 and Resolution dated
December 15, 2008 of the Court of Appeals in CA-G.R. CV No. 85384
are AFFIRMED.
With costs against the petitioner. SO ORDERED.