PROVREM RULE 61 1

FUNDAMENTALS OF SUPPORT PENDENTE LITE

By Atty. SEVERIANO S. TABIOS
1. Introduction
Support pendente lite is an amount adjudicated by the trial court
during the pendency of an action for support upon application by
plaintiff at the commencement of the proper action or at any time
afterwards. It is a remedy recognized by the Revised Rules of Court
and classified as a provisional remedy rendered by the court as
equity and justice may require. 1 As support pendente lite is a
provisional remedy, it is not necessary that the court should inquire
fully into the merits of the case, it being sufficient that the court
ascertain the kind of evidence and the amount thereof that is
deemed sufficient to enable it to justly resolve the application one
way or the other. 2 Mere affidavits may satisfy the court to pass upon
the application for support pendente lite.
2. Procedural requirements
A. Need for Application and Hearing
At the commencement of an action for support, or at any time
afterwards but prior to final judgment, the plaintiff may file an
application for support pendente lite, stating the grounds for the
claim and the financial conditions of both parties and supporting the
same with affidavits, depositions or other authentic documents. 4
Notice of the application shall then be served upon the adverse party
who shall be required to answer within three (3) days, unless a
different period of time is fixed by the court.5
After the answer is received by the court or after the expiration of the
time for filing an answer, a day will be set for the hearing of the
application. 6 whereby the defendant is afforded the opportunity to
prove his defense. 7 The facts in issue shall be proved in the same
manner as is provided in connection with motions. 8 In this regard, it
is not necessary to require the parties to go fully into the merits of
the case, it being sufficient for the court to ascertain the kind and
amount of evidence deemed sufficient to enable it to justly resolve
the application one way or the other, considering the provisional
character of the resolution to be entered. 9 Moreover, where the
status or juridical relation alleged by the applicant as ground for his
right to support is denied by the adverse party, the evidence therein
shall be clear and satisfactory as the lack of proof thereon would
render an order granting support pendente lite as having been
issued in excess of jurisdiction.

accordance with the tenets of justice and fair play and it is

incumbent upon the party who alleges abuse of judicial discretion to
offset the presumption. 16
C. Enforcement of Judicial Order
It has been held that disobedience to an order granting support
pendente lite constitutes contempt of court. 17 However, before he is
punished for contempt, the defendant who fails to comply with the
court order must show cause why he should not be punished for
contempt. 18 In this regard, should the defendant appear to have
means to pay support and refuse to pay, then either an order of
execution may be issued or a penalty for contempt may be imposed
or both execution and contempt may be ordered. 19
In this regard, the enforcement order shall depend on the exercise of
judicial discretion on how defendant justifies his failure to comply
with the court order. It should be underscored that an order for
support pendente lite is in its very nature contingent and the
dismissal of the main action has the effect of abrogating the order.
Thus, where the order to pay alimony pendente lite was issued in an
action for support brought by the wife, but, which was later
dismissed on hereon motion, the husband cannot be obliged to pay
such support pendent lite in a subsequent action brought by the wife
for the same purpose, unless it be by an order issued in the second
action.20
3. Defenses against support pendente lite
A. Denial of Paternity
As the obligation to render support arises from the relationship of
parent and child, husband and wife, legitimate ascendants and
descendants and brothers and sisters, 21 a denial of the relationship
from which the obligation to give support arises will be considered a
valid defense against an action for support. Thus, where a minor,
through a guardian ad litem, brings an action for support on the
ground that he is a son of the defendant, and the defendant denies
his paternity, the Supreme Court has declared that the court the
court has no jurisdiction to award support pendente lite. In this
regard, the Supreme Court observed that as the civil status of being
a child has been denied and has therefore become an issue in the
case, it would be apparent that no effect could be given to such a
claim until an authoritative declaration be made as to the existence
of the cause. 22
B. Non-existence of Marriage

It is to be noted that under the law the fact that a right to be

supported is recognized in favor of the person to be supported such
recognition of right does not automatically entitle him to receive
support as the obligation to give support shall be demandable from
the time the person who has a right to receive the same demands it
extrajudicially for maintenance and support.11 For this purpose,
support can be demanded by reason of imperative necessity and the
law presumes that such necessity does not exist unless support is
demanded. 12
B. Exercise of Judicial Discretion
After having determined provisionally the facts, the judge of the court
where the principal action for support is pending shall issue such
order as equity and justice may require. In this regard, the judge
shall give due regard to the necessities of the applicant, the means
of the adverse party, the probable outcome of the principal case, and
such other circumstances as may aid him in the proper elucidation of
the question to be resolved. Correspondingly, if the application is
granted, the judge shall fix the amount of money to be provisionally
paid and the terms of payment thereof. On the other hand, if the
application is denied, the judge shall schedule the trial of the
principal case on the merits as early as possible. 13 It is to be
understood that the order, whether denying or granting the support
pendente lite, is interlocutory and consequently not appealable.
However, if the application is granted, the order is immediately
executory. Moreover, it has been held that while an order denying or
granting support pendente lite is interlocutory and, consequently,
nonappealable; if an appeal is nevertheless taken thereon, and no
objection is interposed hereto, the appeal shall be entertained as the
objection is deemed waived. 14
It may not be amiss to mention, moreover, that in disposing of the
question of support pendente lite, the judge may, subject to the
requirements of due process, give all such directions and orders as
it may deem necessary or expedient. 15 For this purpose, the
exercise of judicial discretion is presumed to be performed in

Since the obligation to give support arises from the relationship of

spouses, 23 the absence of such relationship would therefore defeat
any claim for support. Thus, if the answer of the defendant denies
the marriage between him and plaintiff, thus putting in issue the very
status of the plaintiff, support pendente lite should not be allowed,
until the marriage is established as a fact. 24 It should be
remembered that merely asserting the invalidity of a marriage may
not be a defense against a support pendente lite because until the
marriage is invalidated it will subsists. Thus, while the cessation of
marriage will necessarily terminate the obligation to give support and
is therefore a defense against an action for support, suport pendente
lite may still be ordered during the proceedings for the annulment of
the marriage, 25 as the obligation of mutual support between
spouses will cease after the final judgment of annulment. 26
C. Death of Recipient
Under the law, the obligation to give support shall cease upon the
death of the recipient. 27 Thus, where a judgment for support was
rendered, under which the defendant was to pay to the mother of a
child, as support for the latter, a certain sum, the death of the child
extinguishes the obligation by the defendant to give support,
because the support is not for the benefit of the mother but of the
child.28
D. Improper Conduct of the Person Seeking Support
The New Civil Code recognizes two instances of improper conduct
that would extinguish the obligation to give support, namely: (1)
when the recipient, be he a forced hire or not, has committed some
act which gives rise to disinheritance; and (2) when the recipient is a
descendant, brother or sister of the obligor and the need for support
is caused by his or her bad conduct or by the lack of application to
work, so long as this cause subsists. 29 For this purpose, a mother
who delivered her child to a couple and since then never took care
of her, completely abandoning her, can not later ask for support from

PROVREM RULE 61 2
the child. 30 Similarly, since under the New Civil Code, a spouse
may be disinherited when he or she has given cause for legal
separation 31 and adultery is a cause for legal separation, 32
therefore, in an action for support by a wife who was alleged to have
committed adultery, the abandoning husband may interpose adultery
as a defense. 33
4. Remedy against denial of support pendente lite

G.R. No. L-2942

December 29, 1949

SILVESTRA COQUIA and LUIS CARANDANG, petitioners,

vs.
RODOLFO BALTAZAR Judge of the Court of First Instance of Leyte,
and GASPARA, FRANCISCA, DIONISIO, ALFREDO, and
SALVADOR, all surnamed COQUIA, assisted by their mother,
MARIA DALORI, as guardian ad litem, respondents.

An order of the court denying an application for pendent lite is not

final in character 34 and as such is considered interlocutory and
non-appealable. 35 As it is non-appealable, the remedy therefore is
an original action for certiorari to annul the order of denial. Thus, in a
case where the trial judge denied an application for support
pendente lite on the ground that as the legal separation of the
spouses which the plaintiff sought has not, as yet been decreed and
the children were not parties to the case, support pendent lite would
be premature, the Supreme Court in upholding the reversal of the
lower court's decision declared that since the order denying support
pendente lite is interlocutory, plaintiff would have to wait, for its
review by appeal, until the rendition of judgment on the merits, which
may not be forthcoming until months or years later; but since plaintiff
and her children needed alimony to live somehow, an appeal would
not have been a speedy and adequate remedy. 36 An action for
certiorari is fundamentally based on an abuse of discretion on the
part of the judge.37 For this purpose, an abuse of discretion must be
grave and patent in order that it would justify the issuance of the writ
of certiorari, 38 otherwise the petition for certiorari would likely be
denied. 39 In this regard, an abuse of discretion is considered grave
when there is a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or where the power is exercised in
an arbitrary or despotic manner by reason of passion, prejudice or
personal hostility, amounting to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. 40

Astilla, De Veyra, Aldaba and Zosa for petitioners.

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

Necessarily, where a judge dis-missed an action for support on

account of the absence of petitioner and her child in court, even if
the lawyer for petitioner was ready to present evidence in support of
the complaint the Supreme Court in granting a writ of certiorari
declared that the dismissal of a petition for support without any
lawful ground or reason for so doing amount to an excess
respondent court.

The respondent judge, Honorable Rodolfo Baltazar, a denied

petitioners' motion for reconsideration, holding that the order of
Judge Piccio for alimony pendente lite was well founded; and, on
February 26, 1949, ordered the issuance of a writ of execution
against the herein petitioners to collect the sum of P400
corresponding to four months of unpaid alimony.

OZAETA, J.:
Respondents Gaspara, Francisca, Dionisio, Alfredo, and Salvador
Coquia, assisted by their mother and guardian ad litem Maria Dalori,
filed an action in the Court of the First Instance of Leyte against the
spouses Silvestra Coquia and Luis Carandang to recover the
possession as owner of four parcels of land, of which three belong
pro indiviso to Alfredo Coquia and his sister, the petitioner Silvestra
Coquia, now a deceased, upon the allegation that they are
acknowledged natural children and the sole heirs of the latter. The
petitioners (defendants below) in their answer denied that the
respondents are acknowledged natural children of the deceased
Alfredo Coquia.
Pending the trial of the case said respondents (plaintiff's below) filed
a petition for alimony pendente lite which Judge Edmundo S. Piccio
granted in the sum of P200 a month (subsequently reduced to P100
a month), "considering the legal and equitable rights of said plaintiffs
in the land question in which they have interests and their actual
destitute situation while the defendants are possessed of
considerable real properties," the judge said.

We find the present petition for certiorari to annul the above

mentioned orders to be well founded.
Rule 63 of the Rules of the Court, which authorizes the granting of
alimony pendente lite" at the commencement of the proper action, or
at any time afterwards but prior to the final judgment," is not
applicable to this case. The action commenced before the
respondent judge was not for support but for the recovery of the
ownership and possession of real property. Manifestly such an
action is not "the proper action" contemplated by said rule The mere
fact that the plaintiffs have legal and equitable rights in the property
they seek to recover (Q. E. D. ) does not authorize the court to
compel the defendants to support the plaintiffs pending the
determination of the suit.
Moreover, the petitioners, who are sister and brother-in law,
respectively, of the deceased Alfredo Coquia, are not bound to
support the alleged natural children of the latter. Under the article
143 of the Civil Code only the following are bound to support each
other: (1) husband and wife: (2) legitimate ascendants and
descendants: and (3) parents and acknowledged natural children,
and the legitimate descendants of the latter.
Even in an action for divorce and alimony, it has been held that the
court has no jurisdiction to grant alimony pendente lite where the
answer to the complaint alleging marriage and praying for divorce
denies the fact of marriage, because the right of a wife to support
depends upon her status as such, and where the existence of such
status is put in issue by the pleading, it cannot be presumed to exist
for the purpose of granting alimony. (Yangco vs. Rohde, 1 Phil.,
404.)lawphi1.net
The petition is granted and the orders complained of are hereby set
aside, without any finding as to costs in view of the fact that the
individual respondents are litigating as paupers.

PROVREM RULE 61 3
G.R. No. L-59906

October 23, 1982

BUENAVENTURA SAN JUAN, petitioner,

vs.
HON. MANUEL E. VALENZUELA, Judge of the Court of First
Instance of Rizal and DOROTEA MEJIA, respondents.

G.R. No. L-31897

June 30, 1972

LUIS T. RAMOS, petitioner,

vs.
HONORABLE COURT OF APPEALS, FELISA LAGOS, for herself
and in behalf of minors FERNANDO LAGOS and LORRAINE
LAGOS, respondents.

Francisco D. Lozano for petitioner.

Ceferino Inciong for petitioner.
Manuel Valenzuela in his own behalf.
Jerry P. Rebutoc for private respondents.
ESCOLIN, J.:
Petition for certiorari to annul and set aside the order of respondent
Judge Manuel E. Valenzuela in Civil Case No. 8874-P of the Court of
First Instance of Rizal, Branch XXIX, dated December 24, 1981,
ordering petitioner Buenaventura San Juan to give support pendente
lite to respondent Dorotea Mejia and her minor children.
It appears that on September 16, 1981, the marriage between
respondent Mejia and petitioner San Juan, solemnized on October
2, 1973, was declared null and void by the Court of First Instance of
Rizal on the ground of a prior and subsisting marriage between
petitioner and one Isabel Bandin. On February 25, 1981, respondent
Mejia instituted the instance action against petitioner, docketed as
Civil Case No. 8874- P, seeking support for herself and her two
minor children.
After issues were joined, the respondent judge, on motion of Mejia,
entered the challenged order granting support pendente lite as
follows:
IN VIEW OF THE FOREGOING, pursuant to Section 5, Rule 61 of
the New Rules of Court and after giving due regard to the
necessities of the plaintiff Dorotea Mejia and her children, Rachel
San Juan and Jeffrey San Juan, the application for support pendente
lite is hereby granted, and the same is fixed at P2,500.00 a month
commencing from January 1, 1982 to be paid to the plaintiff on or
the 5th day of each month until this case is finally adjudicated. This
is without prejudice to any judgment for support in arrears due the
plaintiff if the evidence will so warrant after trial.
SO ORDERED.
Petitioner's motion for reconsideration of the above order on the
grounds that (1) the amount is grossly disproportionate to petitioner's
means; (2) petitioner is not obliged to support respondent Mejia as
their marriage is null and void; and (3) no evidence was presented
as to petitioner's present resources, was denied.
Hence, on March 16, 1982, petitioner instituted this petition.
It appears that pending resolution of this petition, petitioner filed with
the trial court a manifestation, dated June 17, 1982, proposing to
settle his obligation of P15,000.00, representing the amount of
support which accrued from January to June, 1982, and to pay the
same in three equal installments, the first to be paid upon approval
by the court of his scheme of payment, and the balance within a
period of two (2) months thereafter. This proposal was approved by
the court. In the same manifestation, petitioner sought the reduction
of the amount of support pendente lite to P1,000.00 a month on the
ground that the sum of P2,500.00 previously fixed by respondent
judge is now beyond his means to pay. According to private
respondent, the court had not yet acted on petitioner's request for
reduction of the monthly support because the respondent judge left
for abroad. 1
Unquestionably, the petitioner's willingness to pay the amount of
support pendente lite in the mariner indicated in his manifestation,
and the approval thereof by the respondent Judge have rendered
this petition moot and academic.
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 same should be resolved by the lower court on the
basis of the evidence to be presented at the proper hearing. The
order of December 24 fixing the amount of support pendente lite is
not final in character in the sense that it can be the subject of
modification, depending on the changing conditions affecting the
ability of the obligor to pay the amount fixed for support. 2
WHEREFORE, the instant petition is hereby dismissed for being
moot and academic. No costs. SO ORDERED.

CONCEPCION, C.J.:p
This is an original action for certiorari to annul an order of the Court
of Appeals.
It appears that, assisted by their mother, Felisa Lagos, the minors
Fernando and Lorraine Lagos filed, with the Court of First Instance
of Batangas, a complaint against Luis T. Ramos, the petitioner
herein, for support and damages, alleging that she bore said
children, born on August 27, 1963 and June 21, 1965, respectively,
in consequence of illicit relations with said Ramos, who had failed
and refused to support said minors, notwithstanding repeated
demands, and despite the fact that he has, as a municipal mayor,
the means therefor, which she does not have. Ramos having denied
the main allegations of the complaint and set up a counterclaim for
damages, the case proceeded to trial, after which, on December 18,
1967, said court rendered judgment for the plaintiffs, sentencing
Ramos to pay each of said minors the sum of P75.00 monthly, in
addition to the aggregate sum of "P2,075.00 representing the
support in arrears for the elder child, that is, from 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 arrears in
the amount of P180.00 for the younger child, or from June 21, 1965,
when she was born, up to September 3, 1965, when the complaint
for support was filed," apart from "the sum of P500.00 representing
attorney's fees and costs of suit suffered by the plaintiffs."
Ramos having appealed to the Court of Appeals, plaintiffs-appellees
moved therein for support pendente lite. In a reasoned and signed
resolution dated November 21, 1969, Ramos was ordered by the
Court of Appeals to deposit with its Clerk the sum of P4,727.50
representing one-half of the amount due under the appealed
decision to the aforesaid plaintiffs "within 15 days from notice,
otherwise he 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 Lagos." A reconsideration having been
denied, Ramos commenced the present action, alleging that the
Court of Appeals had abused its discretion in issuing the
aforementioned resolution: (a) "there having been neither a
recognition of paternity by the petitioner nor its establishment by final
judgment"; (b) his motion for reconsideration 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, despite the fact
that their mother had merely requested "a monthly support of P75.00
for each child;" (d) said Court having denied petitioner's request for
"a 10-day abeyance in the implementation of the resolution" granting
support pendente lite; (e) the trial court having denied the motion
therein filed by the plaintiffs-appellees for support pendente lite; and
(f) the Court of Appeals not having required Felisa Lagos to file a
bond, despite the fact that she had offered to put one.
Upon the filing of the petition herein and approval of the requisite
bond, We issued a writ of preliminary injunction restraining the
enforcement of the contested resolution of the Court of Appeals.
The first ground invoked by the petitioner is predicated upon Yangco
vs. Rohde 1 which is not in point, alimony pendente lite having been
granted in that case without any evidence, on the status of the
plaintiff as alleged wife of the defendant, who had denied such
allegation, unlike the case at bar in which said evidence was
introduced and found to be sufficient, although the trial court's
decision is still pending appeal. Francisco vs. Zandueta. 2 on
which petitioner, likewise, relies merely reiterated the stand taken in
the Yangco case, on the impropriety of granting alimony pendente
lite on the basis of the bare allegations of the complaint, which are
disputed by the defendant. It, however, pointed out the "substantial
difference between the capacity of a person after the rendition of a
final judgment in which that person is declared to be in possession

PROVREM RULE 61 4
of the status of a son and his capacity prior to such time when
nothing exists other than his suit or claim to be declared in
possession of such a status." In Sanchez vs. Zulueta 3 in which
the defendant had been compelled to pay a monthly allowance
pendente lite to his wife, the plaintiff, and her child, after denying him
the opportunity, requested by him, to introduce evidence in support
of his defense to the effect that the child had been the product of her
adulterous relations with another man, after she had abandoned the
conjugal dwelling this Court went farther and said:
We are of the opinion that the Court of Appeals erred in not allowing
the defendant to present his evidence for the purpose of determining
whether it is sufficient prima facie to overcome the application.
Adultery on the part of the wife is a valid defense against an action
for support (Quintana vs. Lerma, 24 Phil., 285). Consequently, as to
the child, it is also a defense that it is the fruit of such adulterous
relations, for in that case, it would not be the child of the defendant
and, hence would not be entitled to support as such. But as this
defense should be established, and not merely alleged, it would be
unavailing if proof 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 of amount of evidence which it may
deem sufficient to enable it to justly resolve the application, one way
or take other, in view of the merely provisional character of take
resolution to be entered. 4
In the subsequent case of Garcia vs. Court of Appeals, 5 this Court
reversed an order of the Court of Appeals annulling an order of the
trial court granting alimony during the pendency of an appeal from
the latter's decision sentencing the defendant therein and petitioner
in the Court of Appeals to acknowledge a natural child. Speaking
through then Chief Justice Bengzon, the Court used the following
language:
The appellate tribunal held that the Cavite court had no jurisdiction
to issue the questioned order because the relationship of paternity
between petitioner and his alleged natural father had not yet been
established by final judgment. Petitioner, on the other hand, claims
that support pendente lite being in the nature of a temporary relief,
final judgment as to the relationship of the natural father and child is
not essential. Arguing his point, he cites propositions from some
decisions of this Court; that only prima facie evidence indicative of
such family relation is necessary; that even an authoritative
declaration would be sufficient and that the obligation to support
begins after one is compelled to acknowledge by decree of the
Court.
We think the petitioner's contention accords with reason and
authority.
Although the law gives the right of support to acknowledged natural
children, and although Laureano Garcia has not yet been actually
acknowledged because the decision has not yet become executory,
still as the confirmation of the order of recognition may be said to
relate back to the date of the original decision, it lies within the
discretion of the trial court to direct the father to give support
pending the appeal. Indeed, there may be instance where, in view of
the poverty of the child, it would be a travesty of justice to refuse him
support until the decision of the judge is sustained on appeal. There
being at least prima facie evidence of the child's right to support, the
Cavite court acted within its power and discretion. 6
As above indicated, not only had evidence on the alleged relation
between the minors and Ramos been introduced in the case at bar.
Judgment had, moreover, been rendered finding that said relation
had been duly established, although an appeal from said judgment
was and is still pending in the Court of Appeals. Indeed, the Rules of
Court clearly authorizes the granting of support pendente lite, even
prior to the rendition of judgment by the trial court. Sections 1 and 5
of Rule 61 provide:
SEC. 1. Application. The plaintiff, at the commencement of the
proper action, or at any time afterwards but prior to final judgment,
may file an application for support pendente lite, stating the grounds
for the claim and the financial conditions of both parties, and shall be
accompanied by affidavits, depositions or other authentic documents
in support thereof.
xxx

xxx

the means of the adverse party, the probable outcome of the case,
and such other circumstances as may aid in the proper elucidation
of the question involved. If the application is granted, the court shall
fix the amount of money to be provisionally paid, and the terms of
payment. ... . 7
It goes without saying that if, before the rendition of judgment, the
trial court may "provisionally" grant alimony pendente lite, with more
reason may an appellate court exercise a similar authority, after a full
dress trial and a decision of the trial court on the merits finding that
the claim of filiation and support has been adequately proven in
the case at bar, beyond doubt even if such decision were still
pending appeal taken by the party adjudged to be bound to give
such support.
Needless to say, the refusal of the trial court to grant, said alimony
pendente lite did not and cannot deprive the appellate court of said
authority, or even dent the wisdom of the action taken by the latter,
considering that the former did not give any plausible reason for its
aforementioned refusal and that the same may have, in fact, been
due to the appeal taken by the defendant, whose record on appeal
had already been approved.
Neither did the failure of the Court of Appeals to hear petitioner
herein on oral argument before denying his motion for
reconsideration or to grant him "a 10-day abeyance in the
implementation" of said resolution constitute a grave abuse of
discretion, for petitioner is not entitled as a matter of right to said oral
argument, which was discretionary for said appellate court, as was
its authority to grant or deny the aforementioned period of ten (10)
days. Furthermore, petitioner has not shown that he could have
adduced substantial reasons to warrant a reversal of the contested
resolution had this period been granted or said oral argument taken
place.
Again, the grant to the minors who had merely asked "a monthly
support of P75.00 for each child," or P150.00 a month for both, and,
through their mother, had offered to file a bond of the aggregate
sum of P4,727.50, without requiring a bond therefor, did not
constitute a grave abuse of discretion amounting to excess of
jurisdiction, in the light of the circumstances surrounding the case.
Indeed, as stated in the appealed decision of the trial court:
From the evidence presented in this case, the Court does not
entertain a doubt that plaintiff and defendant had illicit relationship
and that the two children, namely, Fernando and Lorraine, both
surnamed Lagos, are the result of this illicit relationship. It will be
remembered that although defendant denied having written any
letter to plaintiff, yet when the letters Exhibits "C" to "L", were shown
to him the defendant admitted that the writings in said letters are
similar to his. Moreover, if the defendant's allegation that Exhibits "C"
to "L" were not written by him, he could easily hire a handwriting
expert to prove that those letters are not his handwriting. The fact
that he did not present a handwriting expert, to prove his contention
that the letters exhibited are not his, only goes to show that he is not
really serious in disproving plaintiff's claims. In fact, it is not
improbable that he did not take the trouble of presenting a
handwriting expert because he is afraid that the handwriting expert if
presented would only tell the truth, that is, that those letters are
really defendant's own handwriting. Secondly, the Court cannot
believe the evidence presented by the defendant to the effect that it
was defendant's legal wife who recommended the employment of
the plaintiff in Manila sometime in 1962 or 1963, because according
to the evidence of the plaintiff, which has not been rebutted by
defendant, the latter and his legal wife were then separated. In fact,
from the letters Exhibits "F", "H" and "J" it appears that it was the
defendant who had been promising the plaintiff a job and he visits
her in Dakota (Exhibit "L"). Thirdly, the defendant has not adduced
an iota of evidence to explain why plaintiff would demand from him
the support of her children. Neither has defendant presented
evidence to explain why the father of the plaintiff had testified
against him when according to the defendant he and the father of
the plaintiff were good friends.Finally, there seems to be no valid
reason why the plaintiff would choose a Mayor, who under ordinary
circumstances is difficult to fight with, in his own municipality. The
fact, therefore, that the defendant is named in the instant complaint
as the father of plaintiff's two children only indicates that plaintiff is
merely stating the truth.

xxx

SEC. 5. Order. The court shall determine provisionally the

pertinent facts, and shall render such order as equity and justice
may require, having due regard to the necessities of the applicant,

The evidence adduced by plaintiff, more particularly the letters

Exhibits "C" to "L", corroborate the testimony of plaintiff that she was
constrained to have amorous relationship with defendant after she
lost herself to him. Specifically, in defendant's letter Exhibit "F", he

PROVREM RULE 61 5
fixed the hour and place of their rendezvous for Manila, when said
letter states "Darling, mahal na mahal kita kaya pag ako ay iyong
kalilimutan ay hindi ko malalaman ang aking gagawin." Defendant's
letter of July 30, 1962 Exhibit "L", clearly reveals that he often saw
Felisa at Dakota St., Manila, when he asked in said letter for
understanding in not seeing her everyday. In short, the evidence
presented, clearly shows that there was an amorous relationship
between plaintiff and defendant, the latter being a married man, and
that the two children were conceived and born at the time of this
relationship. These two children possess the status of illegitimate
children other than natural, who are entitled to support and other
successional rights as granted in the Civil Code (Article 287, New
Civil Code). As such illegitimate children, defendant has the
obligation to support them. 8
Then, too, the sum of P4,727.50, stated in the resolution complained
of, represented merely one-half () of the aggregate amount due
under the decision of the trial court, as of the date of the contested
resolution of the Court of Appeals, and the reasons therein adduced
by petitioner herein, as well as those given by him in this petition and
memorandum herein are basically weak, feeble and insubstantial.
Besides, the relief which may be given to a party depends, not so
much upon the prayer in his motion, as upon the allegations thereof
and the pertinent facts. 9 In the present case, it is not disputed that
one of the plaintiffs was born on August 27, 1963 and the other on
June 21, 1965. On the date of the contested resolution, 10 they
were, therefore, 6 and 4 years of age, respectively. The minors are
now, therefore, around 9 and 7 years old, respectively, or of school
age. In addition thereto, they have been litigating since September
5, 1965, or almost seven (7) years, and the decision in their favor is
still pending appeal. Paraphrasing Garcia v. Court of Appeals, 11 the
circumstances 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 travesty of justice" to refuse them support until the
decision of the trial judge "is sustained on appeal."
All these factors considered, We do not feel that the Court of
Appeals has gravely abused its discretion or exceeded its
jurisdiction in acting as it did.
WHEREFORE, the petition herein should be, as it is hereby,
dismissed, and the writ prayed for denied, with costs against herein
petitioner, Luis T. Ramos. The writ of preliminary injunction issued on
May 20, 1970 is hereby set aside. It is so ordered.

G.R. No. L-46763

February 28, 1978

ANTONIO VASCO, petitioner,

vs.
COURT OF APPEALS, LEONOR INES LUCIANO, as Presiding
Judge of the Juvenile & Domestic Relations Court, Quezon City;
NICANOR SALAYSAY, as Sheriff for the Province of Rizal, and
ANGELINA REYES Y BAJACAN, REYNALDO VASCO and LOLITA
VASCO, respondents.
Quasha, Asperilla, Ancheta, Valmonte, Pea & Marcoa for petitioner.
Alejandro S. Quizon for private respondents.

AQUINO, J.:
This case is about the trial court's jurisdiction to execute pending
appeal a judgment for support.
The Juvenile and Domestic Relations Court of Quezon City in a
decision dated October 5, 1976 found that Reynaldo Vasco and
Lolita Vasco (born on April 8, 1952 and April 27, 1954, respectively)
are the illegitimate children of Antonio Vasco and Angelina Reyes. It
ordered Antonio to pay them the sum of P200 as monthly allowance
for support, beginning October, 1976 plus P500 as attorney's fees
(Civil Case No. QE-00888, Reyes vs. Vasco).
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, 1977 the lower court approved Vasco's record on appeal and
ordered the elevation of the record to the Court of Appeals.
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
execution of the said judgment pending appeal.
Antonio Vasco opposed that motion on the ground that the lower
court had no jurisdiction to grant execution. He invoked section 9,
Rule 41 of the Rules of Court.
The lower court granted the motion in its order of July 13, 1972.
Antonio Vasco assailed that order of execution in his petition for
certiorari in the Court of Appeals.
The Court of Appeals in its decision of August 10, 1977 upheld that
order of execution pending appeal in the "interest of substantial
justice" and on the theory that the judiciary is an agency of the State
acting as parens patriae and that if the said order is erroneous, the
error is only an error of judgment and is not a grave abuse of
discretion or an act in excess of jurisdiction.
On August 26, 1977 Antonio Vasco filed in this Court the instant
petition for certiorari.
The petition is meritorious because the trial court had no jurisdiction
(long after the perfection of the appeal) to issue an order for
execution pending appeal It had no jurisdiction because, after the
perfection of the appeal, "the trial court loses its jurisdiction over the
case, except to issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by
the appeal to prove compromises offered by the parties prior to the
transmittal of the record on appeal to the appellate court, and to
permit the prosecution of pauper's appeals" (Sec. 9, Rule 41, Rules
of Court.)
An order for execution pending appeal does not fall within the said
exceptions because it is a proceeding involving the very matter
litigated by the appeal (Cabilao vs. Judge of the Court of First
Instance of Zamboanga, L-18454, August 29, 1966, 17 SCRA 992,
997).
Before the rendition of the judgment, the plaintiffs could have availed
themselves in the lower court of the provisional remedy of support
pendente lite (Rule 61, Rules of Court). They did not do so.
On the other hand, the general rule is that an appeal stays the
execution of the judgment (Araneta vs. Gatmaitan, 101 Phil. 328,
338; Caragao vs. Maceren and Sebellino 92 Phil. 121, 124).

PROVREM RULE 61 6
In granting execution pending appeal, the lower court relied upon
Garcia vs. Court of Appeals, 114 Phil. 619 and Hamoy vs. Batingolo,
116 Phil. 115. The facts of the two cases are different from the
situation in the instant case.
The Garcia case refers to support pendente lite which is immediately
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
remedy in the trial court, which issued the writ of execution, even if
the appeal of a party had already been perfected. That is different
from the incident in this case.
The instant case is governed by the rule that a trial court, in ordering
(after the approval of the bill of exceptions, now record on appeal)
the execution of a judgment requiring the husband to pay support to
his wife, acted without jurisdiction and, therefore, the order of
execution is illegal and void (Marcelo vs. Estacio, 69 Phil. 145;
Estacio vs. Provincial Warden of Rizal, 69 Phil. 150).
Contrary to the impression of the Court of Appeals, the trial court's
error is not merely an error of judgment. It is clear that the trial court
acted without jurisdiction. Hence, certiorari lies to annul its order of
execution pending appeal.
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 as
parens patriae protecting the interests of minors (Cabanas vs.
Pilapil, L-25843, July 25, 1974, 58 SCRA 94).
It is axiomatic that the courts should endeavor to do substantial
justice in all cases and that as much as possible technicalities
should be eschewed. As has been said, a technicality should be an
aid to justice and not its great hindrance and chief enemy. And, as
the saying goes, we should dispense compassionate justice which is
the hallmark of the New Society. "For Moses gave us only the Law
with its frigid demands and merciless justice, while Jesus Christ
brought us loving forgiveness as well." (Line 17, Chapter 1, Gospel
of Saint John).
However, we should not forget that procedural rules have their own
wholesome rationale in the orderly administration of justice. Justice
has to be administered according to the rules in order to obviate
arbitrariness, caprice or whimsicality.
As to the doctrine of parens patriae (father of his country), its
relevancy to this case is doubtful because the recipients of the
support granted by the lower court are no longer honors. The
doctrine refers to the inherent power and authority of the state to
provide protection of the person and property of a person non sui
juries. Under that doctrine, the state has the sovereign power of
guardianship over persons under disability. Thus, the state is
considered the parens patriae of minors. (67 C.J.S. 624;
Government of the P. I. vs. Monte de Piedad, 35 Phil. 728, 747; 31
Words and Phrases Judicially Defined, Per. Ed., pp. 99-100).

G.R. No. 125041

June 30, 2006

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

REBECCA ANGELA DELGADO and REGINA ISABEL DELGADO.
Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARASALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO
C. DELGADO and FRANCISCO C. DELGADO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals dated 20 March 1996, affirming
the Order, dated 12 September 19952 of the Regional Trial Court
(RTC), Branch 149, Makati, granting support pendente lite to
Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed
Delgado.
The generative facts leading to the filing of the present petition are
as follows:
On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf
of her then minor children Rica and Rina, a Petition for Declaration
of Legitimacy and Support, with application for support pendente lite
with the RTC Makati.3 In said petition, it was alleged that on 16
February 1975, petitioner and respondent Federico Delgado were
civilly married by then City Court Judge Eleuterio Agudo 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 required consent per Article 85 of the New
Civil Code,4 it was annulled on 11 August 1975 by the Quezon City
Juvenile and Domestic Relations Court.5
On 25 March 1976, or within seven months after the annulment of
their marriage, petitioner gave birth to twins Rica and Rina.
According to petitioner, she, with the assistance of her second
husband Danny Mangonon, raised her twin daughters as private
respondents had totally abandoned them. At the time of the
institution of the petition, Rica and Rina were about to enter college
in the United States of America (USA) where petitioner, together with
her daughters and second husband, had moved to and finally settled
in. Rica was admitted to the University of Massachusetts (Amherst)
while Rina was accepted by the Long Island University and Western
New England College. Despite their admissions to said universities,
Rica and Rina were, however, financially incapable of pursuing
collegiate education because of the following:
i) The average annual cost for college education in the US is about
US$22,000/year, broken down as follows:
Tuition Fees US$13,000.00

WHEREFORE, the decision of the Court of Appeals and the lower

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

Room & Board 5,000.00

SO ORDERED.

Yearly Transportation &

Books 1,000.00

Meal Allowance 3,000.00

Total US$ 22,000.00
or a total of US$44,000.00, more or less, for both Rica and Rina
ii) Additionally, Rica and Rina need general maintenance support
each in the amount of US$3,000.00 per year or a total of US$6,000
per year.
iii) Unfortunately, petitioners monthly income from her 2 jobs is
merely US$1,200 after taxes which she can hardly give general
support to Rica and Rina, much less their required college
educational support.
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.
v) Worse, Rica and Rinas petitions for Federal Student Aid have
been rejected by the U.S. Department of Education.6

PROVREM RULE 61 7
Petitioner likewise averred that demands7 were made upon
Federico and the latters father, Francisco,8 for general support and
for the payment of the required college education of Rica and Rina.
The twin sisters even exerted efforts to work out a settlement
concerning these matters with respondent Federico and respondent
Francisco, the latter being generally known to be financially well-off.9
These demands, however, remained unheeded. Considering the
impending deadline for admission to college and the opening of
classes, petitioner and her then minor children had no choice but to
file the petition before the trial court.
Petitioner also alleged that Rica and Rina are her legitimate
daughters by respondent Federico since the twin sisters were born
within seven months from the date of the annulment of her marriage
to respondent Federico. However, as respondent Federico failed to
sign the birth certificates of Rica and Rina, it was imperative that
their status as legitimate children of respondent Federico, and as
granddaughters of respondent Francisco, be judicially declared
pursuant to Article 173 of the Family Code.10
As legitimate children and grandchildren, Rica and Rina are entitled
to general and educational support under Articles 17411 and
195(b)12 in 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 part of the parents, the obligation to provide support
falls upon the grandparents of the children; thus, respondent
Federico, or in his default, respondent Francisco should be ordered
to provide general and educational support for Rica and Rina in the
amount of US$50,000.00, more or less, per year.

bolster their respective positions, the trial court resolved the motion
in an Order dated 12 September 1995 in this wise:
WHEREFORE, in the light of the foregoing considerations,
respondents are hereby directed to provide a monthly support
(pendente lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel Delgado to be
delivered within the first five days of each month without need of
demand.24
Unsatisfied with the Order of the trial court, petitioner brought the
case to the Court of Appeals via Petition for Certiorari. The Court of
Appeals affirmed the holding of the trial court and disposed the
petition in the following manner:
WHEREFORE, the petition for certiorari is hereby DISMISSED and
the Order of the lower court dated September 12, 1995 is hereby
AFFIRMED.25
Petitioners Motion for Reconsideration was denied through the
Resolution of the Court of Appeals dated 16 May 1996.26
Petitioner is now before this Court claiming that the Decision of the
Court of Appeals was tainted with the following errors:
RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING
THAT RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE
OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY
SUPPORT PENDENTE LITE GRANTED TO PETITIONERS
CHILDREN AT A MEASLEY P5,000.00 PER CHILD.

Petitioner also claimed that she was constrained to seek support

pendente lite from private respondents - who are millionaires with
extensive assets both here and abroad - in view of the imminent
opening of classes, the possibility of a protracted litigation, and Rica
and Rinas lack of financial means to pursue their college education
in the USA.

I.

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

certificates of Rica and Rina do not bear the signature of respondent
Federico, it is essential that their legitimacy be first established as
"there is no basis to claim support until a final and executory judicial
declaration 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
Christian charity. He, likewise, averred that the order of liability for
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 the shoulders of petitioner and her second husband, the
latter having voluntarily assumed the duties and responsibilities of a
natural father. Even assuming that he is responsible for support,
respondent Francisco contends that he could not be made to answer
beyond what petitioner and the father could afford.

II.

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

(respondent herein) Federico in Default.17 This was favorably acted
upon by the trial court in the Order dated 16 June 1994.18
On 5 August 1994, respondent Federico filed a Motion to Lift Order
of Default alleging that the summons and a copy of the petition were
not served in his correct address.19 Attached thereto was his
Answer20 where he claimed that petitioner had no cause of action
against him. According to him, he left for abroad and stayed there for
a long time "[w]ithin the first one hundred twenty (120) days of the
three hundred days immediately preceding March 25, 1976" and that
he only came to know about the birth of Rica and Rina when the
twins introduced themselves to him seventeen years later. In order
not to antagonize the two, respondent Federico claimed he did not
tell them that he could not be their father. Even assuming that Rica
and Rina are, indeed, his daughters, he alleged that he could not
give them the support they were demanding as he was only making
P40,000.00 a month.
Finding sufficient ground in the motion filed by respondent Federico,
the trial court lifted its Order dated 16 June 1994 and admitted his
Answer.21
In the meantime, on 25 April 1994, petitioner filed an Urgent Motion
to Set Application for Support Pendente Lite for Hearing because
Rica and Rina both badly needed immediate financial resources for
their education.22 This Motion was opposed by respondent
Francisco.23 After both parties submitted supplemental pleadings to

RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF

THE FINANCIAL INCAPACITY OF RICA AND RINAS PARENTS IN
DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT
DEVOLVES ON THE GRANDFATHER.

IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE

SUPPORT GRANDFATHER DON PACO IS UNDOUBTEDLY
CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT
COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE
ACTED WITH GRAVE ABUSE OF DISCRETION IN FIXING AN
AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY
INADEQUATE TO SUPPORT THE EDUCATIONAL
REQUIREMENTS OF THE RECIPIENTS.27
At the time of the filing of the present Petition, it is alleged that Rica
had already entered Rutgers University in New Jersey with a budget
of US$12,500.00 for academic year 1994-1995. She was able to
obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan
from the US government in the amount of US$2,615.00.28 In order
to defray the remaining balance of Ricas education for said school
year, petitioner claims that she had to secure a loan under the
Federal Direct Student Loan Program.
Meanwhile, Rina entered CW Post, Long Island University, where
she was expected to spend US$20,000.00 for the school year 19941995. She was given a financial grant of US$6,000.00, federal work
study assistance of US$2,000.00, and a Federal Stafford loan of
US$2,625.00.29 Again, petitioner obtained a loan to cover the
remainder of Rinas school budget for the year.
Petitioner concedes that under the law, the obligation to furnish
support to Rica and Rina should be first imposed upon their parents.
She contends, however, that the records of this case demonstrate
her as well as respondent Federicos inability to give the support
needed for Rica and Rinas college education. Consequently, the
obligation to provide support devolves upon respondent Francisco
being the grandfather of Rica and Rina.
Petitioner also maintains that as respondent Francisco has the
financial resources to help defray the cost of Rica and Rinas
schooling, the Court of Appeals then erred in sustaining the trial
courts Order directing respondent Federico to pay Rica and Rina
the amount of award P5,000.00 each as monthly support pendente
lite.
On the other hand, respondent Francisco argues that the trial court
correctly declared that petitioner and respondent Federico should be
the ones to provide the support needed by their twin daughters

PROVREM RULE 61 8
pursuant to Article 199 of the Family Code. He also maintains that
aside from the financial package availed of by Rica and Rina in the
form of state tuition aid grant, work study program and federal
student loan program, petitioner herself was eligible for, and had
availed herself of, the federal parent loan program based on her
income and properties in the USA. He, likewise, insists that
assuming he could be held liable for support, he has the option to
fulfill the obligation either by paying the support or receiving and
maintaining in the dwelling here in the Philippines the person
claiming support.30 As an additional point to be considered by this
Court, he posits the argument that because petitioner and her twin
daughters are now US citizens, they cannot invoke the Family Code
provisions on support as "[l]aws relating to family rights and duties,
or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad."31

Philippines. Indeed, respondents, by their actuations, have shown

beyond doubt that the twins are the children of Federico.33
Having addressed the issue of the propriety of the trial courts grant
of support pendente lite in favor of Rica and Rina, the next question
is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in the
order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;

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

Rica and Rina by reiterating the grounds he had previously raised
before the trial court. Like his father, respondent Federico argues
that assuming he is indeed the father of the twin sisters, he has the
option under the law as to how he would provide support. Lastly, he
assents with the declaration of the trial court and the Court of
Appeals that the parents of a child should primarily bear the burden
of providing support to their offspring.
The petition is meritorious.
As a preliminary matter, we deem it necessary to briefly discuss the
essence of support pendente lite. The pertinent portion of the Rules
of Court on the matter provides:
Rule 61
SUPPORT PENDENTE LITE
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.
xxxx
SEC. 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 this provision, a court may temporarily grant support
pendente lite prior to the rendition of judgment or final order.
Because of its provisional nature, a court does not need to delve
fully into the merits of the case before it can settle an application for
this relief. All that a court is tasked to do is determine the kind and
amount of evidence which may suffice to enable it to justly resolve
the application. It is enough that the facts be established by affidavits
or other documentary evidence appearing in the
record.32lavvphi1.net
After the hearings conducted on this matter as well as the evidence
presented, we find that petitioner was able to establish, by prima
facie proof, the filiation of her twin daughters to private respondents
and the twins entitlement to support pendente lite. In the words of
the trial court
By and large, the status of the twins as children of Federico cannot
be denied. They had maintained constant communication with their
grandfather Francisco. As a matter of fact, respondent Francisco
admitted having wrote several letters to Rica and Rina (Exhs. A, B,
C, D, E, F, G, G-1 to G-30). In the said letters, particularly at the
bottom thereof, respondent Francisco wrote the names of Rica and
Rina Delgado. He therefore was very well aware that they bear the
surname Delgado. Likewise, he referred to himself in his letters as
either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989
(Exh. G-21), he said "as the grandfather, am extending a financial
help of US$1,000.00." On top of this, respondent Federico even
gave the twins a treat to Hongkong during their visit to the

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters.
An eminent author on the subject explains that the obligation to give
support rests principally on those more closely related to the
recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those who
are called upon to provide support do not have the means to do
so.34
In this case, both the trial court and the Court of Appeals held
respondent Federico liable to provide monthly support pendente lite
in the total amount of P10,000.00 by taking into consideration his
supposed income of P30,000.00 to P40,000.00 per month. We are,
however, unconvinced as to the veracity of this ground relied upon
by the trial court and the Court of Appeals.
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 of Civil Procedure. The rule finds a more stringent application
where the Court of Appeals upholds the findings of fact of the trial
court; in such a situation, this Court, as the final arbiter, is generally
bound to adopt the facts as determined by the appellate and the
lower courts. This rule, however, is not ironclad as it admits of the
following recognized exceptions: "(1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts
are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings
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 petitioners main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on
record; and (11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion."35 The case at bar
falls within the seventh and eleventh exceptions.
The trial court gave full credence to respondent Federicos allegation
in his Answer36 and his testimony37 as to the amount of his income.
We have, however, reviewed the records of this case and found
them bereft of evidence to support his assertions regarding his
employment and his earning. Notably, he was even required by
petitioners counsel 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, severely undermines the truthfulness of
respondent Federicos assertion with respect to his financial status
and capacity to provide support to Rica and Rina.
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. Dany
Mangonon, dated October 19, 1991 addressed to Mr. Francisco
Delgado signed by "sincerely, Danny Mangonon, can you
remember."

PROVREM RULE 61 9
xxxx
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: It is stated in this letter that "I am making this request to you and
not to your son, Rico, for reasons we both are aware of." Do you
know what reason that is?
A: Yes. The reason is that my son do not have fix employment and
do not have fix salary and income and they want to depend on the
lolo.
x x x xlavvphi1.net
Q: Would you have any knowledge if Federico owns a house and
lot?
A: Not that I know. I do not think he has anything.

Francisco, as the next immediate relative of Rica and Rina, is tasked

to give support to his granddaughters in default of their parents. It
bears stressing that respondent Francisco is the majority
stockholder and Chairman of the Board of Directors of Citadel
Commercial, Incorporated, which owns and manages twelve
gasoline stations, substantial real estate, and is engaged in
shipping, brokerage and freight forwarding. He is also the majority
stockholder and Chairman of the Board of Directors of Citadel
Shipping which does business with Hyundai of Korea. Apart from
these, he also owns the Citadel Corporation which, in turn, owns real
properties in different parts of the country. He is likewise the
Chairman of the Board of Directors of Isla Communication Co. and
he owns shares of stocks of Citadel Holdings. In addition, he owns
real properties here and abroad.41 It having been established that
respondent Francisco has the financial means to support his
granddaughters education, he, in lieu of petitioner and respondent
Federico, should be held liable for support pendente lite.
Anent respondent Francisco and Federicos claim that they have the
option under the law as to how they could perform their obligation to
support Rica and Rina, respondent Francisco insists that Rica and
Rina should move here to the Philippines to study in any of the local
universities. After all, the quality of education here, according to him,
is at par with that offered in the USA. The applicable provision of the
Family Code on this subject provides:

Q: How about a car?

A: Well, his car is owned by my company.39
Respondent Federico himself admitted in court that he had no
property of his own, thus:
Q: You also mentioned that you are staying at Mayflower Building
and you further earlier testified that this building belongs to Citadel
Corporation. Do you confirm that?
A: Yes, sir.

Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either by paying the allowance fixed, or by
receiving and maintaining in the family dwelling the person who has
a right to receive support. The latter alternative cannot be availed of
in case there is a moral or legal obstacle thereto.
Under the abovecited provision, the obligor is given the choice as to
how he could dispense his obligation to give support. Thus, he may
give the determined amount of support to the claimant or he may
allow the latter to stay in the family dwelling. The second option
cannot be availed of in case there are circumstances, legal or moral,
which should be considered.

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

A: I am driving a lancer, sir.
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
parent loan program, she could very well support the college studies
of her daughters.
We are unconvinced. Respondent Franciscos assertion that
petitioner had the means to support her daughters education is
belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If
petitioner were really making enough money abroad, she certainly
would not have felt the need to apply for said loan. The fact that
petitioner was compelled to take out a loan is enough indication that
she did not have enough money to enable her to send her daughters
to college by herself. Moreover, even Rica and Rina themselves
were forced by the circumstances they found themselves in to
secure loans under their names so as not to delay their entrance to
college.
There being prima facie evidence showing that petitioner and
respondent Federico are the parents of Rica and Rina, petitioner
and respondent Federico are primarily charged to support their
childrens college education. In view however of their incapacities,
the obligation to furnish said support should be borne by respondent
Francisco. Under Article 199 of the Family Code, respondent

In this case, this Court believes that respondent Francisco could not
avail himself of the second option. From the records, we gleaned
that prior to the commencement of this action, the relationship
between respondent Francisco, on one hand, and petitioner and her
twin daughters, on the other, was indeed quite pleasant. The
correspondences exchanged among them expressed profound
feelings of thoughtfulness and concern for one anothers well-being.
The photographs presented by petitioner as part of her exhibits
presented a seemingly typical family celebrating kinship. All of these,
however, are now things of the past. With the filing of this case, and
the allegations hurled at one another by the parties, the relationships
among the parties had certainly been affected. Particularly difficult
for Rica and Rina must be the fact that those who they had
considered and claimed as family denied having any familial
relationship with them. Given all these, we could not see Rica and
Rina moving back here in the Philippines in the company of those
who have disowned them.
Finally, as to the amount of support pendente lite, we take our
bearings from the provision of the law mandating the amount of
support to be proportionate to the resources or means of the giver
and to the necessities of the recipient.42 Guided by this principle, we
hold respondent Francisco liable for half of the amount of school
expenses incurred by Rica and Rina as support pendente lite. As
established by petitioner, respondent Francisco has the financial
resources to pay this amount given his various business endeavors.
Considering, however, that the twin sisters may have already been
done with their education by the time of the promulgation of this
decision, we deem it proper to award support pendente lite in
arrears43 to be computed from the time they entered college until
they had finished their respective studies.
The issue of the applicability of Article 15 of the Civil Code on
petitioner and her twin daughters raised by respondent Francisco is
best left for the resolution of the trial court. After all, in case it would
be resolved that Rica and Rina are not entitled to support pendente
lite, the court shall then order the return of the amounts already paid
with legal interest from the dates of actual payment.44
WHEREFORE, premises considered, this Petition is PARTIALLY
GRANTED. The Decision of the Court of Appeals dated 20 March
1996 and Resolution dated 16 May 1996 affirming the Order dated
12 September 1995 of the Regional Trial Court, Branch 149, Makati,

PROVREM RULE 61 10
fixing the amount of support pendente lite to P5,000.00 for Rebecca
Angela and Regina Isabel, are hereby MODIFIED in that respondent
Francisco Delgado is hereby held liable for support pendente lite in
the amount to be determined by the trial court pursuant to this
Decision. Let the records of this case be remanded to the trial court
for the determination of the proper amount of support pendente lite
for Rebecca Angela and Regina Isabel as well as the arrearages
due them in accordance with this Decision within ten (10) days from
receipt hereof. Concomitantly, the trial court is directed to proceed
with the trial of the main case and the immediate resolution of the
same with deliberate dispatch. The RTC Judge, Branch 149, Makati,
is further directed to submit a report of his compliance with the
directive regarding the support pendente lite within ten (10) days
from compliance thereof.
SO ORDERED.

G.R. No. L-670

March 29, 1954

ALFREDO JAVIER, petitioner,

vs.
HON. ANTONIO G. LUCERO, Judge of the Court of First Instance of
Cavite; SALUD R. ARCA and ALFREDO JAVIER, JR., respondents.
David F. Barrera for petitioner.
Jacinto, Santillan and Roxas for respondents.
BENGZON, J.:
In an action for alimony (Civil Case No. 5150, Cavite), the
respondent judge, after hearing the parties and their evidence,
ordered Alfredo Javier to give a monthly allowance of P60 to his wife
Salud R. Arca and their son Alfredo Javier, Jr.
On April 14, 1953 the husband filed a notice of appeal, and on May
6, 1953, he submitted the appeal bond and the record on appeal.
Meanwhile the wife and the son presented on April 30, 1953 a
motion for "support pendente lite" even pending the final
determination of the case on appeal". Whereupon on May 8, 1953,
the judge directed Alfredo Javier to pay the monthly pensions
notwithstanding the pendency of his appeal.
Here comes Alfredo Javier with a petition for certiorari challenging
such directive and arguing, in his own words:
"1. The status of Salud R. Arca as wife of the petitioner is being
contested;
"2. Alfredo Javier Jr. is over 21 years old on March 31, 1953 and no
longer entitled to be supported; and
"3. Even granting that Alfredo Javier, Jr. is entitled to support even if
over 21 years of age to complete his education or training for some
profession, trade or vocation, the support could not be paid because
the decision is vague or silent on that point.
The facts, as found in the action for support, are these:1wphl.nt
On November 19, 1937, plaintiff Salud R. Arca and defendant
Alfredo Javier had their marriage solemnized by Judge Mariano
Nable of the Municipal Court of Manila. At the time of their marriage,
they had already begotten a son named Alfredo Javier Junior who
was born on December 2, 1931. Sometime in 1938, defendant
Alfredo Javier left for the United States on board a ship of the United
States navy, for it appears that he had joined the United States Navy
since 1927, such at the time of his marriage with plaintiff Salud R.
Arca, defendant Alfredo Javier was already a enlisted man in the
United States Navy. Because of defendant Alfredo Javier's departure
for the United States in 1938, his wife Salud R. Arca, who is from
Tanza, Cavite, chose to live with defendant's parents at Naic, Cavite.
But for certain incompatibility of character (frictions having occurred
between plaintiff Salud R. Arca and defendant's folks) plaintiff Salud
R. Arca had found it necessary to leave defendant's parents' abode
and transfer her residence to Tanza, Cavite her native place.
Since then the relation between plaintiff Salud R. Arca and
defendant Alfredo Javier become strained such that on August 13,
1940 defendant Alfredo Javier brought an action for divorce against
plaintiff Salud R. Arca before the Circuit Court of Mobile County,
State of Alabama, USA, docketed as Civil Case No. 14313 of that
Court and marked as Exhibit 2 (c) in this case. Having received a
copy of the complaint for divorce on September 23, 1940, plaintiff
Salud R. Arca answering the complaint alleged in her answer
that she received a copy of the complaint on September 23, 1940
although she was directed to file her answer thereto on or before
September 13, 1940. In that answer she filed, plaintiff Salud R. Arca
averred among other things that defendant Alfredo Javier was not a
resident of Mobile County, State of Alabama, for the period of twelve
months preceding the institution of the complaint, but that he was a
resident of Naic, Cavite, Philippines. Another avernment of interest,
which is essential to relate here, is that under paragraph 5 of her
answer to the complaint for divorce, Salud R. Arca alleged that it
was not true that the cause of their separation was desertion on her
part but that if the defendant Alfredo Javier was in the United States
at that time and she was not with him then it was because he was in
active duty as an enlisted man of the United States Navy, as a
consequence of which he had to leave for the United States without
her. She further alleged that since his departure from the Philippines
for the United States, he had always supported her and her coplaintiff Alfredo Javier Junior through allotments made by the Navy
Department of the United States Government. She denied,

PROVREM RULE 61 11
furthermore, the allegation that she had abandoned defendant's
home at Naic, Cavite, and their separation was due to physical
impossibility for they were separated by about 10,000 miles from
each other. At this juncture, under the Old civil Code, the wife is not
bound to live with her husband if the latter has gone to ultra-marine
colonies. Plaintiff Salud R. Arca, in her answer to the complaint for
divorce by defendant Alfredo Javier, prayed that the complaint for
divorce be dismissed. However, notwithstanding Salud R. Arca's
averments in her answer, contesting the jurisdiction of the Circuit
Court of Mobile County, State of Alabama, to take cognizance of the
divorce proceeding filed by defendant Alfredo Javier, as shown by
her answer marked Exhibit 2 (d), nevertheless the Circuit Court of
Mobile County rendered judgment decreeing dissolution of the
marriage of Salud R. Arca and Alfredo Javier, and granting the latter
a decree of divorce dated April 9, 1941, a certified copy of which is
marked Exhibit 2(f). Thereupon, the evidence discloses that some
time in 1946 defendant Alfredo Javier returned to the Philippines but
went back to the United States.

submitted. (Sumulong vs. Imperial, 51 Phil., 251; Syquia vs.

Concepcion, 60 Phil., 186). Did the judge abuse his discretion?

In July, 1941, that is after securing a divorce from plaintiff Salud

R. Arca on April 9, 1941 defendant Alfredo Javier married Thelma
Francis, an American citizen and bought a house and lot at 248
Brooklyn, New York City. In 1949, Thelma Francis, defendant's
American wife, obtained a divorce from him for reasons not
disclosed by the evidence, and later on, having retired from the
United States Navy, defendant Alfredo Javier returned to the
Philippines, armed with two decrees of divorce one against his
first wife Salud R. Arca and the other against him by his second wife
Thelma Francis issued by the Circuit Court of Mobile County,
State of Alabama, USA, defendant Alfredo Javier married Maria
Odvina before Judge Natividad Almeda-Lopez of the Municipal Court
of Manila on April 19, 1950, marked Exhibit 2 (b).

Under the New Civil Code articles 303 and 921 the wife forfeits her
husband's support after "she has accused (him) of a crime for which
the law prescribes imprisonment for six years or more, and the
accusation has been found to be false." Admittedly, he married a
third time without the first marriage having been dissolved; but he
was cleared of the bigamy charge for lack of criminal intent,
inasmuch as he believed his divorce obtained in the U.S., had
already ended his first marriage to Salud r. Arca. Such acquittal is no
different from an acquittal on reasonable doubt, which in our opinion,
and in the opinion of a member of the code Commission that framed
the New Civil code, would not be ground to forfeit her right to
support.2

At the instance of plaintiff Salud R. Arca an information for bigamy

was filed by the City fiscal of manila on July 25, 1950 against
defendant Alfredo Javier with the Court of First Instance of Manila,
docketed as Criminal Case No. 13310 and marked Exhibit 2 (a).
However, defendant Alfredo Javier with the Court of First Instance of
Manila was acquitted of the charge of bigamy in a decision rendered
by the Court of First Instance of Manila through Judge Alejandro J.
Panlilio, dated August 10, 1951, predicated on the proposition that
the marriage of defendant Alfredo Javier with Maria Odvina was
made in all good faith and in the honest belief that his marriage with
plaintiff Salud R. Arca had been legally dissolved by the decree of
divorce obtained by him from the Circuit Court of Mobile County,
State of Alabama, USA, which had the legal effect of dissolving the
marital ties between defendant Alfredo Javier and plaintiff Salud R.
Arca. At this juncture, again, it is this Court's opinion that defendant
Alfredo Javier's acquittal in that Criminal Case No. 13310 of the
Court of First Instance of Manila by Judge Panlilio was due to the
fact that the accused had no criminal intent in contracting a second
or subsequent marriage while his first marriage was still subsisting.
Turning now to the petition for certiorari, we perceive that, as to its
first ground the respondent judge declared in his decision that
Alfredo Javier and Salud Arca were married on November 19, 1937
when they had already a natural son named Alfredo Javier Junior,
born December 2, 1931, and that, notwithstanding a decree of
divorce which the husband Alfredo obtained in the United States in
1941, their marriage still subsists. Such being the situation, the
principle in Francisco vs. Zandueta, 61 Phil., 752 on which petitioner
entirely relies is not controlling, inasmuch as the existence of the
married relation and the paternity had been established at least
prima facie (cf. Sanchez vs. Zulueta, 68 Phil., 112.) Besides, as
respondents point out, this is strictly not alimony pendente lite, under
Rule 63, but execution of judgment pending appeal, under Rule 39.1
In connection with the second ground of the petition, respondents
observe that under the new Civil Code, article 290 support also
includes the education of the person to be supported "until he
complete his education or training for some profession, trade or
vocation even beyond the age of majority" and on the basis of this
article support was granted to Alfredo Javier Junior. Said the Court,
"while it is true that plaintiff Alfredo Javier Junior, who was born on
December 2, 1931, has reached the age of majority on December 2,
1952, yet, under the last part of article 290 of the new Civil Code,
support may be given him even beyond the age of majority in order
to enable him to complete his education, for some trade or
profession."
Now then, was the order issued in excess of jurisdiction or with
grave abuse of discretion? The court undoubtedly has jurisdiction,
inasmuch as it was issued before the record on appeal was

Unquestionably, Alfredo Javier, Jr. is the son of petitioner Alfredo

Javier, and if financial assistance is to be rendered only at the
termination of the appeal his education, or the completion thereof,
would be unduly delayed. That is good reason for immediate
execution. Petitioner claims that according to the records Alfredo
Javier Jr. "is no longer studying". Yet probably he stopped going to
school due to lack of means, since the petitioner himself admits that
his son is just a pre-law graduate.
But the real grievance of petitioner is contained in the last portion of
his pleading, which says, "What Alfredo Javier now tries to avoid is
to support a woman who has desperately tried to put him in jail,
when she accused him of bigamy." Such disgust is easily
understandable. But compliance with legal and contractual duties is
not always pleasant.

Of course, the question whether Alfredo Javier's prosecution for

bigamy and subsequent acquittal extinguished his obligation to
maintain his complaining spouse will definitely be decided when the
main case (No. 5150) is reviewed on appeal. Other aspects of the
issue could then undoubtedly be the subject of research and
elucidation. Nevertheless, we briefly explain our first impressions or
provisional conclusion in the task of examining the alleged misuse
by respondent judge of his prerogatives. It is markworthy that the
son has not forfeited his right to support.
As the issues are presently framed, petitioner has failed to sustain
the burden of demonstrating the judge's clear error or grievous
mistake in ordering execution of his judgment pending appeal. Costs
against petitioner.1wphl.nt

PROVREM RULE 61 12
G.R. No. L-21727

May 29, 1970

CRISPINA SALAZAR, petitioner,

vs.
GUILLERMO GUTIERREZ, and DAMASO MENDOZA, respondents.
Jaime L. Guerrero and Renato B. Bercades for petitioner.
Taada, Teehankee & Carreon and Jose P. Santillan for
respondents.

MAKALINTAL, J.:
Judgment was rendered by the Court of First Instance of Bataan
(Civil Case No. 2269) in favor of the plaintiff, Crispina Salazar, now
petitioner; on appeal by the defendants, Guillermo Gutierrez and
Damaso Mendoza, the Court of Appeals reversed (CA-G.R. No.
19489-R); and the plaintiff elevated the case to us for review by
certiorari.
Crispina Salazar is owner of a piece of land (Lot 436 of the
Cadastral Survey of Balanga) situated in Tuyo, Balanga, Bataan,
covered by Transfer Certificate of Title 1578 issued by the Register
of Deeds of the said province, and acquired by her from the
Municipality of Balanga on May 4, 1949. The lot is bounded on the
northeast by Lot 361, on the southeast by Sapang Tuyo, on the
southwest by Lot 435, and on the northwest by Lot 433.
Lot 433 was registered under the Torrens system on July 23, 1923,
with Original Certificate of Title 2162. Ownership passed to
respondent Guillermo Gutierrez by inheritance in 1927, and Transfer
Certificate of Title No. 1059 was issued in his name on June 11,
1928. No annotation of any lien or encumbrance affecting the land
appears on either title.
Before the present controversy arose, Lot 436 and some of the
surrounding estates, including Lot 433, were irrigated with water
from Sapang Tuyo, a public stream, flowing through a dike that
traversed Lots 431, 434, 433 and 461. The portion of this dike that
passed through Lot 433 branched near the boundary between this
lot and Lot 434 into a canal which ran across the rest of Lot 433 up
to Lot 436. It was with the water flowing through this canal that Lot
436 used to be irrigated.
On February 24, 1953 respondent Damaso Mendoza, a lessee of
Lot 433, demolished the said canal, thereby stopping the flow of the
water and depriving Crispina Salazar's Lot 436 of the irrigation
facilities which it had formerly enjoyed. Her requests that the canal
be rebuilt and the water flow restored having been turned down,
Salazar commenced the present suit on March 2, 1953, praying that
these reliefs be granted her by the Court and that the defendants be
ordered to pay her actual damages in the sum of P900, moral
damages in the sum of P5,000, and P1,000 for attorney's fees, plus
costs.
The trial court issued a writ of preliminary injunction as prayed for by
the plaintiff, ordering the defendants to restore the demolished
portion of the canal and to refrain from again demolishing the same
pending trial, but the writ was dissolved on March 9, 1953, upon a
counterbond filed by the defendants. The latter answered with their
own counterclaim for damages, denied the substantial averments of
the complaint and put up a number of affirmative defenses.
After trial, the Court of First Instance of Bataan, finding that the
demolished canal had been in existence for more than thirty years
and that the big dike from which it extended had been constructed
for the use of Lot 436 as well as several other lots belonging to
different owners, rendered judgment on April 10, 1956, ordering the
defendants to restore at their expense the canal in question, to
connect it with the canal found in Lot 436 and to cause the
corresponding annotation of the encumbrance on Transfer
Certificate of Title 1059 covering Lot 433; and ordering the
defendants to pay the plaintiff the sum of P1,360 annually beginning
the agricultural year 1956-1957 until the restoration of the canal,
P4,700 as actual damages, P5,000 as moral damages and P1,000
as attorney's fees, plus costs.
On July 26, 1963, the Court of Appeals reversed the decision of the
Court of First Instance and held that since the easement of aqueduct
over Lot 433 for the benefit of Lot 436 was a voluntary one, the

same was extinguished when Lot 433 was registered on July 23,
1923 and the corresponding certificate of title was issued without the
annotation of said easement as a subsisting encumbrance.
The respondents have raised a preliminary procedural question,
alleging that Section 1 of Rule 46 (now Section 1 of Rule 45),
requiring proof of service of a copy of the petition upon the Court of
Appeals, was not complied with. Such omission, however, is not of
jurisdictional import. In an appeal by certiorari upon a question of
law, as distinguished from an original petition for certiorari under
Rule 65, the Court of Appeals is merely a nominal party respondent.
The original parties in the trial court are the same parties in the
appeal.
The main issue as set forth in the decision of the Court of Appeals is
the nature of the easement of aqueduct claimed by the petitioner. If
voluntary, according to the said Court, the easement was
extinguished upon the registration of Lot 433 in 1923, pursuant to
Section 39 of Act No. 496, which provides:
But if there are easements or other rights appurtenant to a parcel of
registered land which for any reason have failed to be registered,
such easements or rights shall remain so appurtenant
notwithstanding such failure and shall be held to pass with the land
until cut off or extinguished by the registration of the servient estate,
or in any other manner. (Emphasis supplied).
In arriving at the conclusion that the easement in question was
voluntary and not legal or compulsory, the Court of Appeals took into
consideration the provisions of Articles 557 and 558 of the Spanish
Civil Code, now Articles 642 and 643 of the new Civil Code
respectively, as follows:
ART. 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the
waters may filter or descend.
ART. 643. One desiring to make use of the right granted in the
preceding article is obliged:
(1)
To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
(2)
To show that the proposed right of way is the most
convenient and the least onerous to third persons;
(3)
To indemnify the owner of the servient estate in the
manner determined by the laws and regulations.
Specifically the appellate court held that there is no evidence to
show that the petitioner has complied with the three requisites laid
down in Article 643 in order to entitle her to claim a legal easement
of aqueduct under Article 642. It bears repeating that the finding thus
made, although apparently factual in character, is premised upon
supposed absence of evidence, and therefore is reviewed by this
Court if the premise is clearly contradicted by the record or
unjustified upon other considerations which logically lead to a
different conclusion, but which the decision under review did not take
into account.
On the first requisite of Article 643 that the petitioner must prove
that he can dispose of the water and that it is sufficient for the use
for which it is intended there is the statement of the trial court that
the disputed canal had been in existence since the Spanish regime,
or at least prior to the original registration of Lot 433 in 1923, and
that of the Court of Appeals itself confirmatory of this second
alternative finding. If, as thus found, the petitioner had been using
water from Sapang Tuyo to irrigate Lot 436 since she acquired said
lot in 1949, as the Municipality of Balanga had been doing before
her, and that such use had lasted continuously for at least thirty
years, it is a fair presumption that she had a right to do so and that
the water she could dispose of was sufficient for the purpose. Indeed
it would be a superfluity to require her to produce a permit from the
proper authorities, for even without it the right had already become
vested both under Article 194 of the Spanish Law of Waters and
under Article 504 of the Civil Code, which respectively state:
ART. 194. Any person who has enjoyed the use of public waters for a
term of twenty years without objection on the part of the authorities
or of any third person, shall continue in its enjoyment, even though
he may not be able to show that he secured proper permission.

PROVREM RULE 61 13
ART. 504. The use of public waters is acquired:
(1)

By administrative concession;

(2)

By prescription for ten years.

The extent of the rights and obligations of the use shall be that
established, in the first case, by the terms of the concession, and, in
the second case, by the manner and form, in which the waters have
been used.
The third requisite of Article 643 of the Civil Code refers to the matter
of indemnity to the owner of the servient estate. As correctly pointed
out by the petitioner it would be nigh impossible now to present
actual proof that such indemnity has been paid, considering the
number of years that have elapsed since the easement had first
come into existence and the subsequent changes in ownership of
the lots involved. It stands to reason, however, that if the easement
had continued for so long in fact, not only before Lot 433 was
registered in 1923 but for thirty years thereafter, until cut off by the
respondents in 1953 the legal requirement in question must have
been complied with.
The other requisite of Article 643 is that "the proposed right of way is
the most convenient and the least onerous to third persons." The
Court of Appeals stated that the petitioner has not established this
fact, and that "her own evidence reveals that her lot is abutting
Sapang Tuyo on its southern boundary, where from she can easily
and directly draw the water necessary to irrigate her land." This
statement is an oversimplification. Proximity or abutment of a piece
of land to a stream does not necessarily carry with it the conclusion
that water may conveniently be drawn directly therefrom for
irrigation. In the first place, the petitioner has pointed out in her brief,
without contradiction by the respondents, that the portion of her land
which abuts Sapang Tuyo is precipice. Secondly, the trial court made
an ocular inspection of the premises and observed that the eastern
and northeastern portions of Lot 436 are lower than the
southwestern, western and northwestern (the point where Lot 436
adjoins Lot 433) portions of the same. Finally, it would appear from
the observation made by the same court that the demolished canal
is part of a system of conduits used to irrigate the lands of the
petitioner and the respondents as well as the surrounding estates
belonging to other owners, and that this system of conduits is of a
permanent nature. The trial court's description bears repeating:
At the ocular inspection conducted on September 22, 1953, it was
found that the eastern and northeastern portions of Lot No. 436 are
lower than the southern, western and northwestern portions of the
same; that about one-fourth () only of the lot is planted to palay
and this palay is yellowish, scarce and could hardly merit attention to
produce any substantial quantity of palay; that this palay is planted
in the eastern portion of the same; that the palay planted on the land
of defendant Gutierrez and on the lot east of the land of the plaintiff
is luxuriant green and had all the earmarks of producing a good
harvest; that the "pinitak" on the northwestern portion of the land of
the plaintiff is higher than the rest of the land; that on this portion is
found a canal about one and a half (1-) meters deep which canal
runs south and parallel to the boundary line of Lot 436 owned by the
plaintiff and Lot No. 435 and is one and a half (1-) meters from this
boundary; that along the southern boundary of Lot No. 433 that
separates it from Lot No. 436 is a "minangon" or a dike and water
flows continuously from one 'pinitak' to another of said Lot No. 433
up to a point between points "15" and "14" of said lot as shown on
Exhibit "A" ... that this water passes from one "pinitak" to another
through openings made on the "pilapils" or small dikes that separate
the several "pinitaks" on this Lot No. 433; that the western side of
the canal that was demolished is located on the boundary line of
Lots Nos. 433 and 434 and this boundary line is higher and some
trees are found therein; that the new canal ... is short and the old
canal from point "13" to about point "7" of Lot No. 433 on this exhibit
is still in use although it is not clean; that Lot No. 434 owned by
Antonio Mendoza is irrigated by two (2) pipes coming from Lot No.
431 and by a canal that comes from Lot No. 431 and by a canal that
comes from the main irrigation canal located on the boundary line of
these two (2) lots 431 and 434; that this main irrigation canal is the
canal that goes through Lot No. 443 ... which canal ends farther east
of Lot 448 ...; that this canal begins from the dam farther west of
these Lots Nos. 431, 434, 433 and 436.
xxx

xxx

xxx

The boundary line of the two (2) lots Nos. 433 and 434 shows that it
is a "minangon", a dike. It is extraordinarily high. From this situation,
it can be concluded that the canal along this boundary line must be
big. To irrigate the southern part of Lot No. 433 would not require a
big and permanent canal if the same was used to irrigate the
southern part of Lot No. 433. Canal marked "W" which is a substitute
canal is small and shallow. From the remnants of the old and
demolished canal, it is safe to assume that the canal has been in
existence for a long time as shown by some big trees on the high
"minangon." If it were to water only the southern part of the lot as
claimed by defendants, it would have been the same in size as the
new canal mark "W" on Exhibit "A." The construction of the new
canal marked 'W' on the exhibit is a feeble attempt to justify the
alleged purpose of the old canal, but this attempt at coverage is laid
bare by the existence of the old canal that crossed Lot No. 433 ...
Considering that the southern portion of said lot is lower than the
rest of the same, the Court believes that the openings on the dike of
the old canal would be sufficient to let water flow to the southern
portions of this lot. The western portion of this lot could have been
watered from the old canal ("X") or from the existing canal ("Z") on
Exhibit "A". That being so, there is only one explanation why the old
canal ("X") is in existence and that is for the use of Lot No. 436 and
other lots farther east of Lot No. 436.
It is a reasonable conclusion from the foregoing that the demolished
canal supplying water to Lot 436 of the petitioner was merely
extension of the system of conduits established long ago,
considering that in view of the topography of the area and the
proximity of the said lot to the main dike in Lot 433 it was more
convenient to make the connection therewith than to draw water
directly from Sapang Tuyo. Article 118 of the Spanish Law of Waters
allows the creation of a compulsory easement of aqueduct for the
purpose of establishing or extending an irrigation system, and there
is nothing to the contrary in the Civil Code.
In any case the respondents are hardly in a position to avail of the
registration of Lot 433 in 1923 without the corresponding registration
of the easement on the title as an excuse to summarily terminate it
thirty years thereafter. The original registered owner allowed the
easement to continue in spite of such non-registration: the least that
can be said is that he either recognized its existence as a
compulsory servitude on his estate or voluntarily agreed to its
establishment and continuance. And the respondent Guillermo
Gutierrez, as the successor-in-interest to the, said owner by
inheritance, is not an innocent third person who could plead the
absence of annotation on the title. Not only was he aware of the
existence of the easement when he inherited the property in 1927,
but he likewise allowed it to continue for twenty-six years after he
acquired title. He is bound both by the act of his predecessor and by
his own.
WHEREFORE, the decision of the Court of Appeals is set aside, and
that of the Court of First Instance of Bataan affirmed, with costs
against the respondents.

PROVREM RULE 61 14
G.R. No. 165166

August 15, 2012

CHARLES GOTARDO, Petitioner,

vs.
DIVINA BULING, Respondent.
VILLARAMA, JR.,*
DECISION

In its June 25, 2002 decision, the RTC dismissed the complaint for
insufficiency of evidence proving Gliffzes filiation. It found the
respondents testimony inconsistent on the question of when she
had her first sexual contact with the petitioner, i.e., "September
1993" in 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 ordered the respondent to return the amount of support
pendente lite erroneously awarded, and to pay P 10,000.00 as
attorneys fees.26

BRION, J.:
The respondent appealed the RTC ruling to the CA.27
We resolve the petition for review on certiorari, 1 filed by petitioner
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. 76326. The CA decision ordered the petitioner to recognize and
provide legal support to his minor son, Gliffze 0. Buling. The CA
resolution denied the petitioner's subsequent motion for
reconsideration.
FACTUAL BACKGROUND
On September 6, 1995, respondent Divina Buling filed a complaint
with the Regional Trial Court (RTC) of Maasin, Southern Leyte,
Branch 25, for compulsory recognition and support pendente lite,
claiming that the petitioner is the father of her child Gliffze.4
In his answer, the petitioner denied the imputed paternity of Gliffze.5
For the parties failure to amicably settle the dispute, the RTC
terminated the pre-trial proceedings.6 Trial on the merits ensued.
The respondent testified for herself and presented Rodulfo Lopez as
witness. Evidence for the respondent showed that she met the
petitioner on December 1, 1992 at the Philippine Commercial and
Industrial Bank, Maasin, Southern Leyte branch where she had been
hired as a casual employee, while the petitioner worked as
accounting supervisor.7 The petitioner started courting the
respondent in the third week of December 1992 and they became
sweethearts in the last week of January 1993.8 The petitioner gave
the respondent greeting cards on special occasions, such as on
Valentines Day and her birthday; she reciprocated his love and took
care of him when he was ill.9
Sometime in September 1993, the petitioner started intimate sexual
relations with the respondent in the formers rented room in the
boarding house managed by Rodulfo, the respondents uncle, on
Tomas Oppus St., Agbao, Maasin, Southern Leyte.10 The petitioner
rented the room from March 1, 1993 to August 30, 1994.11 The
sexual encounters occurred twice a month and became more
frequent in June 1994; eventually, on August 8, 1994, the
respondent found out that she was pregnant.12 When told of the
pregnancy, the petitioner was 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, the petitioner backed out
of the wedding plans.16
The respondent responded by filing a complaint with the Municipal
Trial Court of Maasin, Southern Leyte for damages against the
petitioner for breach of promise to marry.17 Later, however, the
petitioner and the respondent amicably settled the case.18
The respondent gave birth to their son Gliffze on March 9, 1995.19
When the petitioner did not show up and failed to provide support to
Gliffze, the respondent sent him a letter on July 24, 1995 demanding
recognition of and support for their child.20 When the petitioner did
not answer the demand, the respondent filed her complaint for
compulsory recognition and support pendente lite.21
The petitioner took the witness stand and testified for himself. He
denied the imputed paternity,22 claiming that he first had sexual
contact with the respondent in the first week of August 1994 and she
could not have been pregnant for twelve (12) weeks (or three (3)
months) when he was informed of the pregnancy on September 15,
1994.23
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
THE RTC RULING

THE CA RULING
In its March 5, 2004 decision, the CA departed from the RTC's
appreciation of the respondents testimony, concluding that the latter
merely made an honest mistake in her understanding of the
questions of the petitioners counsel. It noted that the petitioner and
the respondent had sexual relationship even before August 1994;
that the respondent had only one boyfriend, the petitioner, from
January 1993 to August 1994; and that the petitioners allegation
that the respondent had previous relationships with other men
remained unsubstantiated. The CA consequently set aside the RTC
decision and ordered the petitioner to recognize his minor son
Gliffze. It also reinstated the RTC order granting a P 2,000.00
monthly child support.28
When the CA denied29 the petitioners motion for reconsideration,30
the petitioner filed the present petition for review on certiorari.
THE PETITION
The petitioner argues that the CA committed a reversible error in
rejecting the RTCs appreciation of the respondents testimony, and
that the evidence on record is insufficient to prove paternity.
THE CASE FOR THE RESPONDENT
The respondent submits that the CA correctly explained that the
inconsistency in the respondents testimony was due to an incorrect
appreciation of the questions asked, and that the record is replete
with evidence proving that the petitioner was her lover and that they
had several intimate sexual encounters during their relationship,
resulting in her pregnancy and Gliffzes birth on March 9, 1995.
THE ISSUE
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 recognize and provide legal support to his minor son Gliffze.
OUR RULING
We do not find any reversible error in the CAs ruling.
We have recognized that "[f]iliation proceedings are usually filed not
just to adjudicate paternity but also to secure a legal right associated
with paternity, such as citizenship, support (as in this case) or
inheritance. [In paternity cases, the burden of proof] is on the person
who alleges that the putative father is the biological father of the
child."31
One can prove filiation, either legitimate or illegitimate, through the
record of birth appearing in the civil register or a final judgment, an
admission of filiation in a public document or a private handwritten
instrument and signed by the parent concerned, or the open and
continuous possession of the status of a legitimate or illegitimate
child, or any other means allowed by the Rules of Court and special
laws.32 We have held that such other proof of one's filiation may be
a "baptismal certificate, a judicial admission, a family bible in which
his name has been entered, common reputation respecting [his]
pedigree, admission by silence, the [testimonies] of witnesses, and
other kinds of proof admissible under Rule 130 of the Rules of
Court."33
In Herrera v. Alba,34 we stressed that there are four significant
procedural aspects of a traditional paternity action that parties have
to 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 declares supported by corroborative proof that she had
sexual relations with the putative father; at this point, the burden of

PROVREM RULE 61 15
evidence shifts to the putative father.36 We explained further that the
two affirmative defenses available to the putative father are: (1)
incapability of sexual relations with the mother due to either physical
absence or impotency, or (2) that the mother had sexual relations
with other men at the time of conception.37
In this case, the respondent established a prima facie case that the
petitioner is the putative father of Gliffze through testimony that she
had been sexually involved only with one man, the petitioner, at the
time of her conception.38 Rodulfo corroborated her testimony that
the petitioner and the respondent had intimate relationship.39
On the other hand, the petitioner did not deny that he had sexual
encounters with the respondent, only that it occurred on a much later
date than the respondent asserted, such that it was physically
impossible for the respondent to have been three (3) months
pregnant already in September 1994 when he was informed of the
pregnancy.40 However, the petitioner failed to substantiate his
allegations of infidelity and insinuations of promiscuity. His
allegations, therefore, cannot be given credence for lack of
evidentiary support. The petitioners denial cannot overcome the
respondents clear and categorical assertions.
The petitioner, as the RTC did, made much of the variance between
the respondents direct testimony regarding their first sexual contact
as "sometime in September 1993" and her cross-testimony when
she stated that their first sexual contact was "last week of January
1993," as follows:
ATTY. GO CINCO:
When did the defendant, according to you, start courting you?
A Third week of December 1992.
Q And you accepted him?
A Last week of January 1993.
Q And by October you already had your sexual intercourse?
A Last week of January 1993.
COURT: What do you mean by accepting?
A I accepted his offer of love.41
We find that the contradictions are for the most part more apparent
than real, having resulted from the failure of the respondent to
comprehend the question posed, but this misunderstanding was
later corrected and satisfactorily explained. Indeed, when confronted
for her contradictory statements, the respondent explained that that
portion of the transcript of stenographic notes was incorrect and she
had brought it to the attention of Atty. Josefino Go Cinco (her former
counsel) but the latter took no action on the matter.42
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 considered."43 Evidently, the totality of the
respondent's testimony positively and convincingly shows that no
real inconsistency exists. The respondent has consistently asserted
that she started intimate sexual relations with the petitioner
sometime in September 1993.44
Since filiation is beyond question, support follows as a matter of
obligation; a parent is obliged to support his child, whether legitimate
or illegitimate.45 Support consists of everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.46
Thus, the amount of support is variable and, for this reason, no final
judgment on the amount of support is made as the amount shall be
in proportion to the resources or means of the giver and the
necessities of the recipient.47 It may be reduced or increased
proportionately according to the reduction or increase of the
necessities of the recipient and the resources or means of the
person obliged to support.48
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 for the determination of any support in arrears, considering the

needs of the child, Gliffze, during the pendency of this case.
WHEREFORE, we hereby DENY the petition for lack of merit. The
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
against the petitioner.
SO ORDERED.

PROVREM RULE 61 16
G.R. No. 139337

August 15, 2001

MA. CARMINIA C. ROXAS, petitioner,

vs.
HON. COURT OF APPEALS and JOSE ANTONIO F. ROXAS,
respondents.
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision1 dated
April 21, 1999 and Resolution2 dated July 20, 1999 of the Court of
Appeals nullifying the Orders3 dated May 13, 1998, May 19, 1998
and September 23, 1998 of the Regional Trial Court of Paraaque
City, 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.
The antecedent facts are as follows:
On November 4, 1997, petitioner Ma. Carminia C. Roxas filed with
the Regional Trial Court of Paraaque City, Civil Case No. 97-0523,
which is an action for declaration of nullity of marriage on the ground
of psychological incapacity on the part of her husband, Jose Antonio
F. Roxas, private respondent herein, with an application for support
pendente lite for their four (4) minor children. The case was raffled to
Branch 257 of the Regional Trial Court of Paraaque City presided
by Judge Rolando C. How. But the petitioner, soon thereafter, filed in
the said RTC Branch 257 a Notice of Dismissal dated November 20,
1997, to dismiss the complaint, without prejudice, pursuant to the
provision of Section 1, Rule 17, of the 1997 Rules of Civil Procedure,
considering that summons has not yet been served and no
responsive pleading has yet been filed.
The same complaint, now docketed as Civil Case No. 97-0608, was
re-filed on November 25, 1997. It was raffled in due course to
Branch 260 of the Regional Trial Court of Paraaque City presided
by Judge Helen Bautista-Ricafort.
On May 13, 1998, when the case was called for a pre-trial
conference, the matter of plaintiffs (petitioners) application for
support pendente lite of their four (4) minor children was taken up.
Judge Bautista-Ricafort received evidence on the application for
support pendente lite. The private respondent and her counsel, Atty.
Alberto Diaz, participated in that proceedings by conducting an
extensive cross-examination of the petitioner. The trial court then
issued its Order dated May 13, 1998 declaring the proceedings on
the application for support pendente lite terminated and deemed
submitted for resolution; and as prayed for by the parties, also set
the case for pre-trial on June 15, 1998 at 8:30 a.m.1wphi1.nt
On May 19, 1998, Judge Bautista-Ricafort, issued an Order4
granting the application for support pendente lite, the pertinent
portion of which reads:
xxx

xxx

xxx

The plaintiff, testifying under oath, submitted Exhibit "A" itemizing the
expenses incurred for the support of the children over a period of
time during their stay at Ayala-Alabang; and showed that their total
monthly average expense is P84,585.00, or P42,292.50 per month,
per spouse. Interestingly, the defendant did not adduce any
evidence to dispute the figures presented to the Court by the
plaintiff, nor did he present proof of his financial incapacity to
contribute more than 50% of the childrens school tuition fees.
The court has painstakingly reviewed the item included in Exhibit
"A", and found the same reasonable, xxx.
Under Art. 49 of the Family Code, there being no written agreement
between the plaintiff and the defendant for the adequate support of
their minor children xxx, this Court finds the prayer for support
pendente lite to be in order. Accordingly, the defendant is hereby
ordered to contribute to the support of the above-named minors,
(aside from 50% of their school tuition fees which the defendant has
agreed to defray, plus expenses for books and other supplies), the
sum of P42,292.50 per month, effective May 1, 1998, as his share in
the monthly support of the children until further orders from this
Court. xxx. All expenses for books and other school supplies shall be
shouldered by the plaintiff and the defendant, share and share alike.
Finally, it is understood that any claim for support-in-arrears prior to
May 1, 1998, may be taken up later in the course of the proceedings
proper.

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

praying the trial court to cite private respondent in contempt of court
in accordance with Section 5, Rule 61 of the 1997 Rules of Civil
Procedure, after the latter failed to comply with the said Order dated
May 19, 1998 of the trial court. Private respondent, through his
counsel, Atty. Alberto Diaz, filed a counter-manifestation and motion
admitting that "xxx there is really no genuine issue as to his
obligation and willingness to contribute to the expenses for the
support of his 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 intended."5 Thus, he prayed that the manner and
mode of payment of his contribution to the expenses of his minor
children be modified such that he will pay directly to the entities or
persons to which the payment for such expenses are intended. On
September 23, 1998, Judge Bautista-Ricafort issued an Order6
directing the private respondent "to comply fully with the Order of
this Court dated May 19, 1998 by updating payment of his share in
the support of the minor children, pendente lite, covering the period
May 1998 to September 1998, within five (5) days from his receipt
hereof xxx under pain of legal sanctions if he still fails to do so. xxx."
On September 28, 1998, or about four (4) months later, private
respondent, through his new counsel, Atty. Francisco Ma. Guerrerro,
filed an Omnibus Motion (1) applying to be authorized to discharge
Atty. Alberto Diaz as his counsel and to substitute him with the new
counsel; (2) to re-open hearing on the Motion for Support Pendente
Lite; and (3) to temporarily stay execution of the Orders dated May
19, 1998 and September 23, 1998. The omnibus motion was set for
hearing on October 2, 1998. Private respondent requested that
before the omnibus motion is heard the May 19, 1998 Order be
temporarily suspended. When the presiding judge did not grant that
request of private respondent, the latters new counsel refused to
proceed with the hearing of his omnibus motion.
On October 8, 1998, Judge Bautista-Ricafort issued an Order giving
private respondent ten (10) days to comply with the May 19, 1998
Order, otherwise, he would be cited for contempt of court.
On October 23, 1998, private respondent filed with the Court of
Appeals a petition for certiorari questioning the Orders of the trial
court dated May 19, 1998, September 23, 1998 and October 8,
1998.
Meanwhile, on November 27, 1998, Judge Bautista-Ricafort issued
another Order,7 the dispositive portion of which reads:
xxx

xxx

xxx

Accordingly, and on the strength of the provisions of Sec. 5 Rule 61

of the 1997 Rules of Civil Procedure, the defendant (herein private
respondent) is hereby pronounced guilty of Contempt of Court, and
is hereby ordered arrested and confined at the City Jail of
Paraaque City, Metro Manila, without bail, and as long as he has
not complied with and obeyed in full the Order of this Court dated
May 19, 1998 by updating his monthly contribution of P42,292.50 for
the period of May 1998 to the date, giving the said amount directly to
the plaintiff, or depositing it with the Clerk of Court, who shall
therefor (issue) the corresponding receipts.
xxx

xxx

xxx

Private respondent was arrested by the agents of the National

Bureau of Investigation (NBI) on December 14, 1998 but he was
released on the following day after the appellate court temporarily
enjoined Judge Bautista-Ricafort from enforcing her November 27,
1998 Order as well as her Orders dated May 19, 1998, September
23, 1998, and October 8, 1998. When the temporary restraining
order lapsed on March 11, 1998, the respondent was again arrested
by virtue of a warrant of arrest issued by Judge Bautista-Ricafort.
After depositing with the clerk of court of the trial court the amount of
support in arrears stated in the Orders of the trial court, private
respondent was released from custody.
On April 21, 1999, the Court of Appeals rendered a Decision in favor
of private respondent, the dispositive portion of which states:
WHEREFORE, being meritorious, the instant petition is GRANTED.
Consequently, all the proceedings/actions taken by respondent
Judge on the matter of support pendente lite in Civil Case No. 970608 (formerly Civil Case No. 97-0523) are hereby declared NULL
and VOID, and said CASE is ordered RETURNED to Branch 257 of

PROVREM RULE 61 17
the Regional Trial Court of Paraaque City, for appropriate
proceedings.
SO ORDERED.8
The appellate court nullified the Orders and the proceedings of the
trial court for the reason that the certificate of non-forum shopping of
the petitioner did not mention the prior filing of Civil Case No. 970523 before the sala of Judge How and the dismissal thereof without
prejudice. The decision of the appellate court elaborated the reasons
for the granting of the petition, to wit:
xxx

xxx

xxx

While a complaint may be dismissed by the plaintiff by filing a notice

of dismissal at any time before service of the answer (Sec. 1, Rule
17), there is however a need to state the fact of prior filing and
dismissal thereof in the certification on non-forum shopping, in the
event the complaint is refiled, as in this case. This must be so in
order to prevent the plaintiff or principal party from invoking Section
1 of Rule 17 in the hope that, if and when refiled, the complaint will
be raffled to a more sympathetic judge.
To the mind of the Court, private respondent availed of Section 1 of
Rule 17 not for any other reason or purpose than to take the case
out of the sala of Judge How and to have it assigned to another. This
belief finds support from the fact that private respondents lawyer
and respondent Judge were classmates at the UP College of Law.
Not only that. While private respondent actually resides in Ayala
Alabang, Muntinlupa City, it was made to appear in the complaint
that she is a resident of Paraaque City, where respondent Judge is
one of the RTC Judges. While the question of venue was not
properly raised on time, this circumstance is being cited to support
petitioners charge of forum-shopping.
xxx

xxx

xxx

Needless to say, forum-shopping merits such serious sanctions as

those prescribed in Section 5, Rule 7 of the 1997 Rules of Civil
Procedure. Considering, however, that when the complaint was
withdrawn, no substantial proceedings had as yet been taken by the
court to which it was first raffled, and that the dismissal thereof was
then a matter or (sic) right, the Court is not inclined to impose any of
the said sanctions. Instead, for the peace of mind of petitioner who
entertains some doubts on the impartiality of respondent Judge, the
annulment case should be returned to Branch 257 of the RTC of
Paraaque City, to which it was originally raffled. And, to enable the
Presiding Judge of said Branch to act on the matter of support
pendente lite, which gave rise to this petition for certiorari and
disqualification, the proceedings/actions taken by respondent Judge
relative thereto should be set aside, the same having been attended
with grave abuse of discretion.9
xxx

xxx

xxx

In the instant petition the petitioner poses the following statement of

issues, to wit:
I
DID THE HONORABLE COURT OF APPEALS ERR IN HOLDING
THE HEREIN PETITIONER GUILTY OF FORUM SHOPPING?
II
DID THE HONORABLE COURT OF APPEALS ERR IN
NULLIFYING JUDGE RICAFORTS ORDER OF SUPPORT
PENDENTE LITE AND HER RELATED IMPLEMENTING ORDERS
WHICH IT WAS HER JUDICIAL DUTY TO ISSUE UNDER ART. 49
OF THE FAMILY CODE AND OTHER RELATED PROVISIONS OF
LAW?
III
DID THE HONORABLE COURT OF APPEALS ERR IN
NULLIFYING THE PROCEEDINGS ALREADY HELD BEFORE
JUDGE RICAFORT AFFECTING HER QUESTIONED ORDERS, AT
THE SAME TIME IMPLIEDLY UPHOLDING THE VALIDITY OF THE
REST OF THE PROCEEDINGS INCLUDING THE TRIAL ON THE
MERITS OF THE CASE FOR ANNULMENT OF MARRIAGE?
IV

DID THE HONORABLE COURT OF APPEALS ERR IN ORDERING

THAT CIVIL CASE NO. 97-0523 RAFFLED TO JUDGE RICAFORT
BE "RETURNED" TO JUDGE HOW OF BRANCH 257 OF THE RTC
OF PARANAQUE CITY?
In other words, if a case is dismissed without prejudice upon the
filing by the plaintiff of a notice of dismissal pursuant to Section 1 of
Rule 17, before the service of the answer or responsive pleading,
would the subsequent re-filing of the case by the same party require
that the certificate of non-forum shopping state that a case involving
the same issues and parties was filed and dismissed without
prejudice beforehand? Would the omission of such a statement in
the certificate of non-forum shopping render null and void the
proceedings and orders issued by the trial court in the re-filed case?
It is our considered view and we hold that the proceedings and
orders issued by Judge Bautista-Ricafort in the application for
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
not rendered null and void by the omission of a statement in the
certificate of non-forum shopping regarding the prior filing and
dismissal without prejudice of Civil Case No. 97-0523 which involves
the same parties and issues.
Section 5 of Rule 7 of the 1997 Rules of Civil Procedure provides
that:
SEC. 5. Certification against forum shopping. The plaintiff or
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if
he should thereafter learn that the same or similar action or claim
has been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing.
The submission of a false certification or non-compliance with any of
the undertakings therein shall constitute indirect contempt of court,
without prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct
contempt as well as a cause for administrative sanctions. (n)
Forum shopping is an act of a party against whom an adverse
judgment has been rendered in one forum of seeking and possibly
getting a favorable opinion in another forum, other than by appeal or
the special civil action of certiorari, or the institution of two or more
actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a favorable
disposition. The language of the Supreme Court circular (now the
above-quoted Section 5, Rule 7, 1997 Rules of Civil Procedure)
distinctly suggests that it is primarily intended to cover an initiatory
pleading or an incipient application of a party asserting a claim for
relief.10 The most important factor in determining the existence of
forum shopping is the "vexation caused the courts and partieslitigants by a party who asks different courts to rule on the same or
related causes or grant the same or substantially the same
reliefs."11
Since a party resorts to forum shopping in order to increase his
chances of obtaining a favorable decision or action, it has been held
that a party cannot be said to have sought to improve his chances of
obtaining a favorable decision or action where no unfavorable
decision has ever been rendered against him in any of the cases he
has brought before the courts.12 Forum shopping exists where the
elements of litis pendencia are present, and where a final judgment
in one case will amount to res judicata in the other.13 For the
principle 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 is final; and (4) the two actions involve identical parties,
subject matter and causes of action.14

PROVREM RULE 61 18
In the case at bar, there was no adverse decision against the
petitioner in Civil Case No. 97-0523 which was the first case filed
and 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 the petitioner was pursuant to Section 1, Rule 17 of the
1997 Rules of Civil Procedure15 considering that it was done before
service of answer or any responsive pleading. The dismissal does
not amount to litis pendencia nor to res judicata. There is no litis
pendencia since the first case before Judge How was dismissed or
withdrawn by the plaintiff (herein petitioner), without prejudice, upon
her filing of a notice of dismissal, pursuant to Section 1, Rule 17 of
the 1997 Rules of Civil Procedure. To use the wording of that rule,
Judge Hows order is one merely "confirming the dismissal" of the
complaint by the plaintiff (herein petitioner). Neither is there res
judicata for the reason that the order of dismissal was not a decision
on the merits but a dismissal "without prejudice".
Thus, private respondents apprehension that the case was
dismissed 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 to declare the petitioner guilty of forum shopping.
First, the petitioner is not assured that the case would be raffled to a
more sympathetic judge. There are five (5) RTC branches in
Paraaque, namely, branch nos. 257, 258, 259, 260 and 274.
Second, Judge Bautista-Ricafort of RTC of Paraaque, Branch 260,
is presumed to be fair and impartial despite private respondents
claim that she is an alleged law school classmate of the petitioners
counsel. In any event, at the slightest doubt of the impartiality of the
said trial judge, private respondent could have filed before the same
judge a motion for her inhibition on that ground. But private
respondent did not.
Private respondent is also estopped in questioning the proceedings
and orders of Judge Bautista-Ricafort. He tacitly acknowledged the
validity of the proceedings and the orders issued by the said trial
judge by participating actively in the hearing on the application for
support pendente lite and by praying for the modification of the
Order of May 19, 1998 in that he should be allowed to directly pay to
the persons or entities to which payments of such expenses are
intended in connection with the required support pendente lite of
their minor children. Private respondent cannot validly claim that he
was not ably and sufficiently represented by his first counsel, Atty.
Diaz, especially during the hearing on that incident on May 13, 1998
when he himself was present thereat.
It is also too late for the private respondent to claim wrong venue in
the Regional Trial Court of Paraaque City as a alleged proof of
forum 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, petitioner is also a resident of Paraaque where the family
of her parents reside.
Considering that the complaint in Civil Case No. 97-0523 was
dismissed without prejudice by virtue of the plaintiffs (herein
petitioners) Notice of Dismissal dated November 20, 1997 filed
pursuant to Section 1, Rule 17, of the 1997 Rules of Civil Procedure,
there is no need to state in the certificate non-forum shopping in Civil
Case No. 97-0608 about the prior filing and dismissal of Civil Case
No. 97-0523. In Gabionza v. Court of Appeals,16 we ruled that it is
scarcely necessary to add that Circular No. 28-91 (now Section 5,
Rule 7 of the 1997 Rules of Civil Procedure) must be so interpreted
and applied as to achieve the purposes projected by the Supreme
Court when it promulgated that Circular. Circular No. 28-91 was
designed to serve as an instrument to promote and facilitate the
orderly administration of justice and should not be interpreted with
such absolute literalness as to subvert its own ultimate and
legitimate objective or the goal of all rules or procedure which is to
achieve substantial justice as expeditiously as possible. The fact that
the Circular requires that it be strictly complied with merely
underscores its mandatory nature in that it cannot be dispensed with
or its requirements altogether disregarded, but it does not thereby
interdict substantial compliance with its provisions under justifiable
circumstances.17
Thus, an omission in the certificate of non-forum shopping about any
event that would not constitute res judicata and litis pendencia as in
the 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 by the said certificate are not present. It is in this light that
we ruled in Maricalum Mining Corp. v. National Labor Relations
Commission18 that a liberal interpretation of Supreme Court Circular
No. 04-94 on non-forum shopping would be more in keeping with the

objectives of procedural rules which is to "secure a just, speedy and

inexpensive disposition of every action and proceeding."
For a party to be adjudged guilty of forum shopping in the trial
courts, a motion to dismiss on the ground of either litis pendencia or
res judicata must be filed before the proper trial court and a hearing
conducted thereon in accordance with Section 5, Rule 7 of the 1997
Rules of Civil Procedure. The same ground cannot be raised in a
petition for certiorari before the appellate court while the main action
in the trial court is still pending for the reason that such ground for a
motion to dismiss can be raised before the trial court any time during
the proceedings and is not barred by the filing of the answer to the
complaint.19
The petition for certiorari in the case at bar on the ground of alleged
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 law to private respondent, i.e., a motion to dismiss or a
motion for reconsideration on the ground of either litis pendencia or
res judicata before the trial court. But private respondent did not file
such a motion based on either of said grounds. And where the
ground is short of res judicata or litis pendencia, as in the case at
bar, the Court of Appeals acted with grave abuse of discretion
amounting to excess of jurisdiction when it granted the petition for
certiorari filed by herein private respondent. The trial court should
have been given an opportunity to rule on the matter of alleged
forum shopping in consonance with the hierarchy of courts.
WHEREFORE, the Decision and Resolution dated April 21, 1999
and July 20, 1999 respectively, of the Court of Appeals are hereby
REVERSED, and the Orders dated May 13, 1998, May 19, 1998 and
September 23, 1998 of the Regional Trial Court of Paraaque City,
Branch 260, are REINSTATED.
SO ORDERED.1wphi1.nt

PROVREM RULE 61 19
G.R. No. 185595

January 9, 2013

MA. CARMINIA C. CALDERON represented by her Attorney-In-Fact,

Marycris V. Baldevia, Petitioner,
vs.
JOSE ANTONIO F. ROXAS and COURT OF APPEALS,
Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45
assailing the Decision1 dated September 9, 2008 and Resolution2
dated December 15, 2008 of the Court of Appeals (CA) in CA-G.R.
CV No. 85384. The CA affirmed the Orders dated March 7, 2005 and
May 4, 2005 of the Regional Trial Court (RTC) of Paraaque City,
Branch 260 in Civil Case No. 97-0608.
Petitioner Ma. Carminia C. Calderon and private respondent Jose
Antonio F. Roxas, were married on December 4, 1985 and their
union produced four children. On January 16, 1998, petitioner filed
an Amended Complaint3 for the declaration of nullity of their
marriage on the ground of psychological incapacity under Art. 36 of
the Family Code of the Philippines.
On May 19, 1998, the trial court issued an Order4 granting
petitioners application for support pendente lite. Said order states in
part:
Accordingly, the defendant is hereby ordered to contribute to the
support of the above-named minors, (aside from 50% of their school
tuition fees which the defendant has agreed to defray, plus expenses
for books and other school supplies), the sum of P42,292.50 per
month, effective May 1, 1998, as his share in the monthly support of
the children, until further orders from this Court. The first monthly
contribution, i.e., for the month of May 1998, shall be given by the
defendant to the plaintiff within five (5) days from receipt of a copy of
this Order. The succeeding monthly contributions of P42,292.50
shall be directly given by the defendant to the plaintiff without need
of any demand, within the first five (5) days of each month beginning
June 1998. All expenses for books and other school supplies shall
be shouldered by the plaintiff and the defendant, share and share
alike. Finally, it is understood that any claim for support-in-arrears
prior to May 1, 1998, may be taken up later in the course of the
proceedings proper.
xxxx
SO ORDERED.5
The aforesaid order and subsequent orders for support pendente lite
were the subject of G.R. No. 139337 entitled "Ma. Carminia C.
Roxas 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 proceedings and orders issued by the trial court in the
application for 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 not rendered null and void by the omission of a
statement in the certificate of non-forum shopping regarding the prior
filing and dismissal without prejudice of Civil Case No. 97-0523
which involves the same parties." The assailed orders for support
pendente lite were thus reinstated and the trial court resumed
hearing the main case.
On motion of petitioners counsel, the trial court issued an Order
dated October 11, 2002 directing private respondent to give support
in the amount of P42,292.50 per month starting April 1, 1999
pursuant to the May 19, 1998 Order.7
On February 11, 2003, private respondent filed a Motion to Reduce
Support citing, among other grounds, that the P42,292.50 monthly
support for the children as fixed by the court was even higher than
his then P20,800.00 monthly salary as city councilor.8
After hearing, the trial court issued an Order9 dated March 7, 2005
granting the motion to reduce support and denying petitioners
motion for spousal support, increase of the childrens monthly
support pendente lite and support-in-arrears. The trial court
considered the following circumstances well-supported by
documentary and testimonial evidence: (1) the spouses eldest child,
Jose Antonio, Jr. is a Sangguniang Kabataan Chairman and is
already earning a monthly salary; (2) all the children stay with private

respondent on weekends in their house in Pasay City; (3) private

respondent has no source of income except his salary and benefits
as City Councilor; (4) the voluminous documents consisting of official
receipts in payment of various billings including school tuition fees,
private tutorials and purchases of childrens school supplies,
personal checks issued by private respondent, as well as his own
testimony in court, all of which substantiated his claim that he is
fulfilling his obligation of supporting his minor children during the
pendency of the action; (5) there is no proof presented by petitioner
that she is not gainfully employed, the spouses being both medical
doctors; (6) the unrebutted allegation of private respondent that
petitioner is already in the United States; and (7) the alleged
arrearages of private respondent was not substantiated by petitioner
with any evidence while private respondent had duly complied with
his obligation as ordered by the court through his overpayments in
other aspects such as the childrens school tuition fees, real estate
taxes and other necessities.
Petitioners motion for partial reconsideration of the March 7, 2005
Order was denied on May 4, 2005.10
On May 16, 2005, the trial court rendered its Decision11 in Civil
Case No. 97-0608 decreeing thus:
WHEREFORE, judgment is hereby rendered declaring (sic):
1. Declaring null and void the marriage between plaintiff Ma.Carmina
C. Roxas and defendant Jose Antonio Roxas solemnized on
December 4, 1985 at San Agustin Convent, in Manila. The Local
Civil Registrar of Manila is hereby ordered to cancel the marriage
contract of the parties as appearing in the Registry of Marriage as
the same is void;
2. Awarding the custody of the parties minor children Maria
Antoinette Roxas, Julian Roxas and Richard Roxas to their mother
herein petitioner, with the respondent hereby given his visitorial and
or custodial rights at [sic] the express conformity of petitioner.
3. Ordering the respondent Jose Antonio Roxas to provide support
to the children in the amount of P30,000.00 a month, which support
shall be given directly to petitioner whenever the children are in her
custody, otherwise, if the children are in the provisional custody of
respondent, said amount of support shall be recorded properly as
the amounts are being spent. For that purpose the respondent shall
then render a periodic report to petitioner and to the Court to show
compliance and for monitoring. In addition, the respondent is
ordered to support the proper schooling of the children providing for
the payment of the tuition fees and other school fees and charges
including transportation expenses and allowances needed by the
children for their studies.
4. Dissolving the community property or conjugal partnership
property of the parties as the case may be, in accordance with law.
Let copies of this decision be furnished the Office of the Solicitor
General, the Office of the City Prosecutor, Paranaque City, and the
City Civil Registrar of Paranaque City and Manila.
SO ORDERED.12
On June 14, 2005, petitioner through counsel filed a Notice of
Appeal from the Orders dated March 7, 2005 and May 4, 2005.
In her appeal brief, petitioner emphasized that she is not appealing
the Decision dated May 16, 2005 which had become final as no
appeal therefrom had been brought by the parties or the City
Prosecutor or the Solicitor General. Petitioner pointed out that her
appeal is "from the RTC Order dated March 7, 2005, issued prior to
the rendition of the decision in the main case", as well as the May 4,
2005 Order denying her motion for partial reconsideration.13
By Decision dated September 9, 2008, the CA dismissed the appeal
on the ground that granting the appeal would disturb the RTC
Decision of May 16, 2005 which had long become final and
executory. The CA further noted that petitioner failed to avail of the
proper remedy to question an interlocutory order.
Petitioners motion for reconsideration was likewise denied by the
CA.
Hence, this petition raising the following issues:

PROVREM RULE 61 20
A. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION
and/or REVERSIBLE ERROR WHEN IT RULED THAT THE RTC
ORDERS DATED MARCH 7, 2005 AND MAY 4, 2005 ARE MERELY
INTERLOCUTORY?
B. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION
and/or REVERSIBLE ERROR WHEN IT DISMISSED OUTRIGHT
THE APPEAL FROM SAID RTC ORDERS, WHEN IT SHOULD
HAVE DECIDED THE APPEAL ON THE MERITS?14
The core issue presented is whether the March 7, 2005 and May 4,
2005 Orders on the matter of support pendente lite are interlocutory
or final.
This Court has laid down the distinction between interlocutory and
final orders, as follows:
x x x 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., an adjudication on the merits which, on the basis of the
evidence presented at the trial, declares categorically what the rights
and obligations of the parties are and which party is in the right; or a
judgment or order that dismisses an action on the ground, for
instance, of res judicata or prescription. Once rendered, the task of
the Court is ended, as far as deciding the controversy or determining
the rights and liabilities of the litigants is concerned. Nothing more
remains 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 reconsideration, or the taking of an appeal) and
ultimately, of course, to cause the execution of the judgment once it
becomes "final" or, to use the established and more distinctive term,
"final and executory."
xxxx
Conversely, an order that does not finally dispose of the case, and
does not end the Courts task of adjudicating the parties contentions
and determining their rights and liabilities as regards each other, but
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 16 of the Rules, or granting a motion for extension of time to
file a pleading, or authorizing amendment thereof, or granting or
denying applications for postponement, or production or inspection
of documents or things, etc. Unlike a "final" judgment or order, which
is appealable, as above pointed out, an "interlocutory" order may not
be questioned on appeal except only as part of an appeal that may
eventually be taken from the final judgment rendered in the case.15
[Emphasis supplied]
The assailed orders relative to the incident of support pendente lite
and support in arrears, as the term suggests, were issued pending
the rendition of the decision on the main action for declaration of
nullity of marriage, and are therefore interlocutory. They did not
finally dispose 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 other incidents as child custody, support and conjugal
assets.
The Rules of Court provide for the provisional remedy of support
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
final order.16 On March 4, 2003, this Court promulgated the Rule on
Provisional Orders17 which shall govern the issuance of provisional
orders during the pendency of cases for the declaration of nullity of
marriage, annulment of voidable marriage and legal separation.
These include orders for spousal support, child support, child
custody, visitation rights, hold departure, protection and
administration of common property.
Petitioner contends that the CA failed to recognize that the
interlocutory aspect of the assailed orders pertains only to private
respondents motion to reduce support which was granted, and to
her own motion to increase support, which was denied. Petitioner
points out that the ruling on support in arrears which have remained
unpaid, as well as her prayer for reimbursement/payment under the
May 19, 1998 Order and related orders were in the nature of final
orders assailable by ordinary appeal considering that the orders
referred to under Sections 1 and 4 of Rule 61 of the Rules of Court
can apply only prospectively. Thus, from the moment the accrued
amounts became due and demandable, the orders under which the
amounts were made payable by private respondent have ceased to
be provisional and have become final.

We disagree.
The word interlocutory refers to something intervening between the
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
interlocutory order merely resolves incidental matters and leaves
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
of the action or proceeding completely, or terminates a particular
stage of the same action.19 Clearly, whether an order or resolution
is final or interlocutory is not dependent on compliance or noncompliance by a party to its directive, as what petitioner suggests. It
is also important to emphasize the temporary or provisional nature of
the assailed orders.
Provisional remedies are writs and processes available during the
pendency of the action which may be resorted to by a litigant to
preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment
in the case. They are provisional because they constitute temporary
measures availed of during the pendency of the action, and they are
ancillary because they are mere incidents in and are dependent
upon 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 declaration of nullity of marriage.
Moreover, private respondents obligation to give monthly support in
the amount fixed by the RTC in the assailed orders may be enforced
by the court itself, as what transpired in the early stage of the
proceedings when the court cited the private respondent in contempt
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 respondent filed a motion to reduce support while petitioner
filed her own motion to increase the same, and in addition sought
spousal support and support in arrears. This fact underscores the
provisional character of the order granting support pendente lite.
Petitioners theory that the assailed orders have ceased to be
provisional due to the arrearages incurred by private respondent is
therefore untenable.1wphi1
Under Section 1, Rule 41 of the 1997 Revised Rules of Civil
Procedure, as amended, appeal from interlocutory orders is not
allowed. Said provision reads:
SECTION 1. Subject of appeal. - An appeal may be taken from a
judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion
seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and thirdparty complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice;
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65. (Emphasis supplied.)
The remedy against an interlocutory order not subject of an appeal
is an appropriate special civil action under Rule 65 provided that the
interlocutory order is rendered without or in excess of jurisdiction or
with grave abuse of discretion. Having chosen the wrong remedy in
questioning the subject interlocutory orders of the RTC, petitioner's
appeal was correctly dismissed by the CA.
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.