PROVISIONAL REMEDIES (Rule 61)

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R U L E 61
SUPPORT PENDENTE LITE
The last provisional remedy is support pendente lite or otherwise known as alimony
pendente lite, allowance or support during the pendency of the main action.
Q: What is the main action?
A: Action for Support.
We know that support is something urgent. The plaintiff needs support during the
pendency of the action. What is the use of winning the case after several years when at
that time you already starved to death? If you cannot wait, you can ask for support
while the case is going on. But you have to prove your right.

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

action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be
filed by any party stating the grounds for the claim and the
financial conditions of both parties, and accompanied by
affidavits, depositions or other authentic documents in support
thereof.

Q: What is the amendment in Section 1?

A: The law now requires the application for support pendente lite to be verified under
oath.
Your application must be accompanied by affidavit, depositions or other authentic
documents such as if the father abandons the child, the child can prove his status by
attaching his birth certificate to his application, the marriage contract plus the
allegation that the plaintiff is not in a position to support himself and the defendant is
very much capable. So, financial condition of the parties must be alleged.
Q: What happens after filing that?
A: The court must give a copy of the application for support and all supporting
documents to the adverse party.

SECTION 2. Comment.- A copy of the application and all

supporting documents shall be served upon the adverse party, who
shall have five (5) days to comment thereon unless a different
period is fixed by the court upon his motion. The comment shall
be verified and shall be accompanied by affidavits, depositions or
other authentic documents in support thereof.

The defendant is given five (5) days to answer the support pendente lite. Do not confuse
this with the answer to the complaint which is 15 days. The answer to the application
for support is 5 days because it is urgent.
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Another innovation introduced by the law is the comment of the defendant must also
be verified.
The comment it must be proved in the same manner as provided for evidence in
motion. So its possible to be affidavits, depositions, authentic documents. Pwede man
ang oral testimony.

SECTION 3. Hearing.- After the comment is filed, or after the

expiration of the period for its filing, the applications shall be
set for 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 motions.
After the comment, 3 days thereafter, the court is obliged to hear the motion.

SECTION 4. Order.- The court shall determine provisionally the

pertinent facts, and shall render such orders as justice and equity
may require, having due regard to the probable outcome of the
case and such other circumstances as may aid in the proper
resolution of the question involved. If the application is granted,
the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into
account the necessities of the applicant and the resources or
means of the adverse party, and the terms of payment or mode for
providing the support. If the application is denied, the principal
case shall be tried and decided as early as possible.
Under section 4, the court will now determine temporarily, provisionally, whether
there is a right to support or not. The hearing of the evidence will come later.
If you are the plaintiff you should not present all your evidence otherwise it will delay
your application. Mga simple lang muna. If the application is granted, the court shall
fix the amount of money to be provisionally paid or such other form of support as may
be provided, that is added by the law based on the needs of the recipient and the
resources of the obligor.
Like for example, kung gusto mong mamalengke, ikaw ang mamalengke. I know of
somebody against whom support pendente lite was filed. He doesn't want to support his
children because of his wife will not give it to the children. So, we asked the court that
instead of money, it is in kind. So, he goes to the market or grocery to buy things for
his children. That is allowed.

SECTION 5. Enforcement of order.- If the adverse party fails to

comply with an order granting support pendente lite, the court
shall, motu proprio or upon motion, issue an order of execution
against him, without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or
fails to do so, any third person who furnished that support to the
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applicant may, after due notice and hearing in the same case,
obtain a writ of execution to enforce his right of reimbursement
against the person ordered to provide such support.

Q: How do you enforce an order for support pendente lite ?

A: Section 5, 1st paragraph. The remedy to enforce an order granting support
pendente lite, is an order of execution against him:
1.) for the unpaid monthly support/ the collection of missed support and,
2.) a possible liability for contempt, that is if the defendant is capable of giving and
he refuses.
Take note that the court can issue motu propio or on motion.
The execution is an exception to the general rule in Section 1 of Rule 39, where
interlocutory orders cannot be the subject of execution, to wit:
Section 1. Execution upon judgments or final orders. Execution shall
issue as a matter of right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied for in the court or origin, on motion of the
judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest
of justice so requires, direct the court of origin to issue the writ of
execution.
General rule: interlocutory order cannot be executed because it is not final.
Exception: order for support pendente lite.
Q: Suppose there is a judgment for support, not an order, and then the defendant
refuses to give support, can the defendant be adjudged liable for contempt ?
A: NO. What is enforceable by contempt is refusal to comply with the order pendente
lite, not judgment for support. It would seem that the only remedy there is execution.
The second part of section 5 is a new provision. Suppose the person ordered to
support refuses to give (pilitin mo muna siya), and the child is in a hurry, naawa ang
kapit-bahay, so he gave the support to the child. Now, he will be the one to execute the
judgment, so he can regain what he has given. This is not found in the old law. Parang
solutio indebiti.

SECTION 6. Support in criminal cases.- In criminal actions where

the civil liability includes support for the offspring as a
consequence of the crime and the civil aspect thereof has not been
waived, reserved or instituted prior to its filing, the accused may
be ordered to provide support pendente lite to the child born to
the offended party allegedly because of the crime. The application
therefor may be filed successively by the offended party, her
parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance
with the procedure established under this Rule.
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Section 6 is also entirely new. Correlate this with article 345 of the RPC.
Q: What are the civil liabilities in rape, seduction, abduction, or acts of lasciviousness,
in case the accused in found guilty?
A: Under Article 345 of the RPC, to support the offspring.
Take note: Support pendente lite can be availed in a criminal case where there is no
reservation of the civil action.
Q: Who can file the application for support ?
A: The offended party, the parents. It depends on the order of preference under Article
345 of the RPC.

SECTION 7. Restitution.- When the judgment or final order of the

court finds that the person who has been providing support
pendente lite is not liable therefor, it shall order the recipient
thereof to return to the former the amounts already paid with
legal interest from the dates of actual payment, without
prejudice to the right of the recipient to obtain reimbursement in
a separate action from the person legally obliged to give the
support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement
thereof in a separate action form the person legally obliged to give
such support.

Q: Suppose the defendant who was ordered to give support turned out after the trial to
be not liable? What is his remedy/remedies?
A: The law says he can:
1) order the recipient to return to him the amount actually paid with legal interest
from the date of actual payment. The recipient can file now an action against his
original father- the one really obliged to give support.
2.) But it is also possible according to Section 7 that the first defendant will be the one
to file a separate action against the real defendant. This provision is not found in
the old law.

-End-

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