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verified application for support pendente lite may be filed by any party
guardian and the State in the corresponding criminal case during its
stating the grounds for the claim and the financial conditions of both
Rule. (n)
court
documents shall be served upon the adverse party, who shall have five
support pendente lite is not liable therefor, it shall order the recipient
thereof to return to the former the amounts already paid with legal
court upon his motion. The comment shall be verified and shall be
from the person legally obliged to give the support. Should the
finds
that
the
person
who
has
been
providing
recipient fail to reimburse said amounts, the person who provided the
Section 3.Hearing. After the comment is filed, or after the
expiration of the period for its filing, the application shall be set for
hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on
motions. (4a)
G.R. No. L-2942
require, having the regard to the probable outcome of the case and
vs.
question involved. If the application is granted, the court shall fix the
the applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the
Astilla,
De
Veyra,
Aldaba
and
Zosa
for
petitioners.
filed an action in the Court of the First Instance of Leyte against the
spouses SilvestraCoquia and Luis Carandang to recover the possession
When the person ordered to give support pendente lite refuses or fails
to do so, any third person who furnished that support to the applicant
may, after due notice and hearing in the same case obtain a writ of
children and the sole heirs of the latter. The petitioners (defendants
Pending the trial of the case said respondents (plaintiff's below) filed a
crime and the civil aspect thereof has not been waived, reserved and
support pendente lite to the child born to the offended party allegedly
respondent
judge,
Honorable
Rodolfo
Baltazar,
denied
Piccio for alimony pendente lite was well founded; and, on February
26, 1949, ordered the issuance of a writ of execution against the
vs.
ESCOLIN, J.:
Petition for certiorari to annul and set aside the order of respondent
proper action" contemplated by said rule The mere fact that the
plaintiffs have legal and equitable rights in the property they seek to
1973, was declared null and void by the Court of First Instance of Rizal
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)
No. 8874- P, seeking support for herself and her two minor children.
Even in an action for divorce and alimony, it has been held that the
court has no jurisdiction to grant alimonypendente lite where the
depends upon her status as such, and where the existence of such
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
CONCEPCION, C.J.:
Appeals.
support and damages, alleging that she bore said children, born on
which accrued from January to June, 1982, and to pay the same in
illicit relations with said Ramos, who had failed and refused to support
that he has, as a municipal mayor, the means therefor, which she does
two (2) months thereafter. This proposal was approved by the court.
not have. Ramos having denied the main allegations of the complaint
after which, on December 18, 1967, said court rendered judgment for
the plaintiffs, sentencing Ramos to pay each of said minors the sum of
had not yet acted on petitioner's request for reduction of the monthly
representing the support in arrears for the elder child, that is, from
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
resolution dated November 21, 1969, Ramos was ordered by the Court
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
present action, alleging that the Court of Appeals had abused its
discretion in issuing the aforementioned resolution: (a) "there having
SO ORDERED.
despite the fact that their mother had merely requested "a monthly
vs.
support of P75.00 for each child;" (d) said Court having denied
support pendente lite; and (f) the Court of Appeals not having required
trial court granting alimony during the pendency of an appeal from the
Felisa Lagos to file a bond, despite the fact that she had offered to put
one.
Upon the filing of the petition herein and approval of the requisite
bond, We issued a writ of preliminary injunction restraining the
granted in that case without any evidence, on the status of the plaintiff
unlike the case at bar in which said evidence was introduced and
acknowledged
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:
natural
children,
and although
Adultery on the part of the wife is a valid defense against an action for
for in that case, it would not be the child of the defendant and, hence
Cavite
court
discretion.
acted
within
its
power
and
between the minors and Ramos been introduced in the case at bar.
justly resolve the application, one way or take other, in view of the
Judgment had, moreover, been rendered finding that said relation had
61 provide:
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,
conditions
be
of
both
parties,
and
shall
5. Order.
shall
Moreover,
payment. ... .
The
court
if
the
defendant's
allegation
that
It goes without saying that if, before the rendition of judgment, the
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
would only tell the truth, that is, that those letters
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
Neither did the failure of the Court of Appeals to hear petitioner herein
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
the
plaintiff
had
testified
against
him
10
they were,
almost seven (7) years, and the decision in their favor is still pending
municipality.
the
travesty of justice" to refuse them support until the decision of the trial
evidence
particularly the
fact,
therefore,
adduced
letters
that
the circumstances
The
The
11
by
plaintiff,
Exhibits
"C"
to
more
All these factors considered, We do not feel that the Court of Appeals
"L",
as it did.
and the writ prayed for denied, with costs against herein petitioner,
Manila,
defendant
after
when
she
said
mahalnamahalkita
lost
letter
herself
states
kaya
to
"Darling,
pagako
iyongkalilimutan
ay
ay
hindikomalalamanangakinggagawin." Defendant's
vs.
amorous
relationship
between
plaintiff
and
AQUINO, J.:
under the decision of the trial court, as of the date of the contested
dated October 5, 1976 found that Reynaldo Vasco and Lolita Vasco
(born on April 8, 1952 and April 27, 1954, respectively) are the
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).
1977 the lower court approved Vasco's record on appeal and ordered
upon Garcia vs. Court of Appeals, 114 Phil. 619 andHamoy vs.
Batingolo, 116 Phil. 115. The facts of the two cases are different from
the situation in the instant case.
On June 22, 1977, or two months after the approval of the record on
appeal, Reynaldo Vasco and Lolita Vasco filed a motion for the
Antonio Vasco opposed that motion on the ground that the lower court
remedy in the trial court, which issued the writ of execution, even if
The lower court granted the motion in its order of July 13, 1972.
The instant case is governed by the rule that a trial court, in ordering
(after the approval of the bill of exceptions, now record on appeal) the
The Court of Appeals in its decision of August 10, 1977 upheld that
is illegal and void (Marcelo vs. Estacio, 69 Phil. 145; Estacio vs.
justice" and on the theory that the judiciary is an agency of the State
acting as parenspatriaeand that if the said order is erroneous, the
error is not merely an error of judgment. It is clear that the trial court
On August 26, 1977 Antonio Vasco filed in this Court the instant
petition for certiorari.
(long after the perfection of the appeal) to issue an order for execution
issue orders for the protection and preservation of the rights of the
and not its great hindrance and chief enemy. And, as the saying goes,
New Society. "For Moses gave us only the Law with its frigid demands
and merciless justice, while Jesus Christ brought us loving forgiveness
An order for execution pending appeal does not fall within the said
However, we should not forget that procedural rules have their own
Before the rendition of the judgment, the plaintiffs could have availed
Relations Court.5
of the person and property of a person non sui juries. Under that
doctrine, the state has the sovereign power of guardianship over
persons
considered
their marriage, petitioner gave birth to twins Rica and Rina. According
under
disability.
Thus,
the
state
is
Rica and Rina were about to enter college in the United States of
WHEREFORE, the decision of the Court of Appeals and the lower
court's order and writ of execution are reversed and set aside. No
second husband, had moved to and finally settled in. Rica was
costs.
SO ORDERED.
DELGADO. Petitioner,
Tuition Fees US$13,000.00
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARASALONGA, Presiding Judge, RTC-Makati, Branch 149,
Books 1,000.00
DECISION
CHICO-NAZARIO, J.:
follows:
her then minor children Rica and Rina, a Petition for Declaration of
Legitimacy and Support, with application for support pendente lite with
required consent per Article 85 of the New Civil Code, it was annulled
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
and the latters father, Francisco, for general support and for the
payment of the required college education of Rica and Rina. The twin
then minor children had no choice but to file the petition before the
trial court.
On 5 August 1994, respondent Federico filed a Motion to Lift Order of
Petitioner also alleged that Rica and Rina are her legitimate daughters
Default alleging that the summons and a copy of the petition were not
by respondent Federico since the twin sisters were born within seven
served
in
20
his
correct
address.19 Attached
thereto
was
his
Answer
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
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
13
and 199(c)
14
part of the parents, the obligation to provide support falls upon the
grandparents of the children; thus, respondent Federico, or in his
the trial court lifted its Order dated 16 June 1994 and admitted his
Answer.21
Set Application for Support Pendente Lite for Hearing because Rica and
the USA.
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
Unsatisfied with the Order of the trial court, petitioner brought the
Christian charity. He, likewise, averred that the order of liability for
case to the Court of Appeals via Petition for Certiorari. The Court of
support to Rica and Rina should be first imposed upon their parents.
AFFIRMED.25
She contends, however, that the records of this case demonstrate her
as well as respondent Federicos inability to give the support needed
Petitioner is now before this Court claiming that the Decision of the
Court of Appeals was tainted with the following errors:
RESPONDENT
JUDGE
DID
NOT
COMMIT
GRAVE
ABUSE
OF
On the other hand, respondent Francisco argues that the trial court
correctly declared that petitioner and respondent Federico should be
I.
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
GRANDFATHER.
herself of, the federal parent loan program based on her income and
properties in the USA. He, likewise, insists that assuming he could be
II.
held liable for support, he has the option to fulfill the obligation either
by paying the support or receiving and maintaining in the dwelling
because petitioner and her twin daughters are now US citizens, they
relating to family rights and duties, or to the status, condition and legal
At the time of the filing of the present Petition, it is alleged that Rica
Respondent Federico, for his part, continues to deny having sired Rica
the trial court. Like his father, respondent Federico argues that
tuition fee grant of US$1,190.00 and a Federal Stafford loan from the
assuming he is indeed the father of the twin sisters, he has the option
with the declaration of the trial court and the Court of Appeals that the
claims that she had to secure a loan under the Federal Direct Student
Loan Program.
of
US$2,000.00,
and
Federal
Stafford
loan
of
Rina Delgado. He therefore was very well aware that they bear the
Rule 61
verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both
Having addressed the issue of the propriety of the trial courts grant of
support pendente lite in favor of Rica and Rina, the next question is
x xxx
ART. 199. Whenever two or more persons are obliged to give support,
facts, and shall render such orders as justice and equity may require,
the liability shall devolve upon the following persons in the order
having due regard to the probable outcome of the case and such other
herein provided:
and the resources or means of the adverse party, and the terms of
payment or mode for providing the support. If the application is
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
responsibility should the claimant prove that those who are called upon
In this case, both the trial court and the Court of Appeals held
the Court of Appeals upholds the findings of fact of the trial court; in
adopt the facts as determined by the appellate and the lower courts.
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
A: Yes. The reason is that my son do not have fix employment and do
beyond the issues of the case, or its findings are contrary to the
not have fix salary and income and they want to depend on the lolo.
admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings
x xx xlavvphi1.net
Q: Would you have any knowledge if Federico owns a house and lot?
petitioners main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence
eleventh exceptions.
Respondent Federico himself admitted in court that he had no property
The trial court gave full credence to respondent Federicos allegation in
his Answer
36
37
have, however, reviewed the records of this case and found them
Q: You also mentioned that you are staying at Mayflower Building and
to present to the court his income tax return and yet the records of
this case do not bear a copy of said document.38 This, to our mind,
A: Yes, sir.
receiving and maintaining in the family dwelling the person who has a
her daughters.
fact that petitioner was even forced by her financial status in the USA
really making enough money abroad, she certainly would not have felt
allow the latter to stay in the family dwelling. The second option
the need to apply for said loan. The fact that petitioner was compelled
to take out a loan is enough indication that she did not have enough
In this case, this Court believes that respondent Francisco could not
avail himself of the second option. From the records, we gleaned that
daughters,
respondent Federico are the parents of Rica and Rina, petitioner and
on
the
other,
was
indeed
quite
pleasant.
The
are now things of the past. With the filing of this case, and the
among the parties had certainly been affected. Particularly difficult for
Rica and Rina must be the fact that those who they had considered
them. Given all these, we could not see Rica and Rina moving back
them.
Anent respondent Francisco and Federicos claim that they have the
Considering, however, that the twin sisters may have already been
option under the law as to how they could perform their obligation to
support Rica and Rina, respondent Francisco insists that Rica and Rina
arrears43 to be computed from the time they entered college until they
is at par with that offered in the USA. The applicable provision of the
Family Code on this subject provides:
Art. 204. The person obliged to give support shall have the option to
best left for the resolution of the trial court. After all, in case it would
be resolved that Rica and Rina are not entitled to support pendente
44
WHEREFORE,
premises
considered,
this
Petition
is
PARTIALLY
acknowledged the plaintiff as his son; that he was not present at the
September 1995 of the Regional Trial Court, Branch 149, Makati, fixing
the amount of support pendente lite to P5,000.00 for Rebecca Angela
the order of May 2, 1935. On May 11, 1935, petitioner moved for the
Delgado is hereby held liable for support pendente lite in the amount
excess of jurisdiction in view of the fact that the civil status of the
plaintiff was placed in issue by the pleadings; that the plaintiff has no
right to monthly support from the defendant until his status as a child
Rebecca Angela and Regina Isabel as well as the arrearages due them
in accordance with this Decision within ten (10) days from receipt
trial of the main case and the immediate resolution of the same with
regarding the support pendente lite within ten (10) days from
The respondent judge, the Honorable Francisco Zandueta, denied that
compliance thereof.
August 9, 1935
filed a joint answer and alleged, in substance, that case No. 47238 was
set for trial the 29th of April, 1935, and that the attorney for the
vs.
prayed that the trial be transferred; that the hearing on this motion
was set for April 27, 1935; that the attorney for the minor filed a
and
motion, on the day set for the hearing of the motion to transfer, in
which he prayed that said minor be granted the sum of P30 per month
the motion to transfer the trial and that after discussion the attorney of
the herein petitioner in order to secure a transfer agreed that his client
GODDARD, J.:
would pay the minor a pension of P30 per month during the pendency
of that case, No. 47238. The answer of the respondents is supported
by the affidavits of the respondent judge and two deputy clerks of the
the Court of First Instance of the City of Manila, case No. 47238. In
false.
that case it is alleged that the therein plaintiff is the acknowledged son
of Luis Francisco and as such is entitled to support. The petitioner, as
consider the dispute as to whether or not the attorney for the herein
In the case of Yangco vs. Rohde (1 Phil., 404) the petitioner Yangco
which is the basis of the action for support, the civil status of marriage
complaint
or that of relationship.
had
been
filed,
before
the
respondent
judge,
by
the pendency of the suit; that the said judge ordered the petitioner to
may be said that in the present case the action for support is brought
pesos; that the plaintiff in the said action owns no property and that
son of the petitioner; therefore it is necessary for him to prove his civil
evident that nothing can be taken for granted upon the point in issue.
There is no law or reason which authorizes the granting of support to
In that case this court, speaking through Chief Justice Arellano, said:
sonship being denied and this civil status, from which the right to
support is derived, being in issue, it is apparent that no effect can be
possession of the status of a son and his capacity prior to such time
The Civil Code grants the right of support to a son. This status not
must
right
not
be
confounded
with
an
established
pay the plaintiff the sum of P30, or any other amount as monthly
defendant in case No. 47283 could not by his alleged consent to the
such time when nothing exists other than his suit or claim to
Under article 143 of the Civil Code the following are bound to support
each other: (1) Husband and wife, (2) legitimate ascendants and
witness. Evidence for the respondent showed that she met the
Industrial Bank, Maasin, Southern Leyte branch where she had been
The writ prayed for is granted and the order of the respondent judge
birthday; she reciprocated his love and took care of him when he was
47238 to pay the plaintiff in that case the sum of P30 monthly, as
ill.9
support, pendente lite, is hereby declared null and void, without costs.
Sometime in September 1993, the petitioner started intimate sexual
relations with the respondent in the formers rented room in the
rented the room from March 1, 1993 to August 30, 1994.11 The sexual
vs.
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,
VILLARAMA, JR.,*
BRION, J.:
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.
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
resolution
denied
the
petitioner's
subsequent
motion
for
petitioner did not answer the demand, the respondent filed her
reconsideration.
the Regional Trial Court (RTC) of Maasin, Southern Leyte, Branch 25,
contact with the respondent in the first week of August 1994 and she
for compulsory recognition and support pendente lite, claiming that the
could not have been pregnant for twelve (12) weeks (or three (3)
In its June 25, 2002 decision, the RTC dismissed the complaint for
OUR RULING
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
26
27
who alleges that the putative father is the biological father of the
child."31
THE CA RULING
One can prove filiation, either legitimate or illegitimate, through the
In its March 5, 2004 decision, the CA departed from the RTC's
respondent had sexual relationship even before August 1994; that the
respondent had only one boyfriend, the petitioner, from January 1993
laws.32 We have held that such other proof of one's filiation may be a
support.28
29
30
the
face:
a prima
THE PETITION
In this case, the respondent established a prima facie case that the
appreciation of the questions asked, and that the record is replete with
had been sexually involved only with one man, the petitioner, at the
evidence proving that the petitioner was her lover and that they had
impossible for the respondent to have been three (3) months pregnant
already
in
September
pregnancy.40 However,
1994
the
when
petitioner
he
was
failed
to
informed
of
the
substantiate
his
categorical assertions.
The petitioner, as the RTC did, made much of the variance between
transportation,
family.
46
in
keeping
with
the
financial
capacity
of
the
stated that their first sexual contact was "last week of January 1993,"
as follows:
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
SO ORDERED.
We find that the contradictions are for the most part more apparent
than real, having resulted from the failure of the respondent to
April 21, 1999 and Resolution2 dated July 20, 1999 of the Court of
42
Appeals nullifying the Orders3 dated May 13, 1998, May 19, 1998 and
September 23, 1998 of the Regional Trial Court of Paraaque City,
lite.
supportpendente lite for their four (4) minor children. The case was
filed in the said RTC Branch 257 a Notice of Dismissal dated November
considering that summons has not yet been served and no responsive
Roxas,
private
respondent
herein,
with
an
application
orders from this Court. xxx. All expenses for books and other
Helen Bautista-Ricafort.
On May 13, 1998, when the case was called for a pre-trial conference,
proper.
lite of their four (4) minor children was taken up. Judge Bautista-
Procedure, after the latter failed to comply with the said Order dated
examination of the petitioner. The trial court then issued its Order
May 19, 1998 of the trial court. Private respondent, through his
dated May 13, 1998 declaring the proceedings on the application for
and as prayed for by the parties, also set the case for pre-trial on June
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
which reads:
xxx
xxx
xxx
Judge
Bautista-Ricafort
issued
an
Order6 directing
the
private
respondent "to comply fully with the Order of this Court dated May 19,
The plaintiff, testifying under oath, submitted Exhibit "A"
1998, within five (5) days from his receipt hereof xxx under pain of
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
lite in Civil Case No. 97-0608 (formerly Civil Case No. 97-
0523) are hereby declared NULL and VOID, and said CASE is
ordered RETURNED to Branch 257 of the Regional Trial
private respondent ten (10) days to comply with the May 19, 1998
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
court dated May 19, 1998, September 23, 1998 and October 8, 1998.
petitioner did not mention the prior filing of Civil Case No. 97-0523
before the sala of Judge How and the dismissal thereof without
xxx
xxx
xxx
xxx
xxx
xxx
obeyed in full the Order of this Court dated May 19, 1998 by
xxx
xxx
than to take the case out of the sala of Judge How and to
have it assigned to another. This belief finds support from
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
the Orders of the trial court, private respondent was released from
forum-shopping.
custody.
xxx
xxx
xxx
IV
when
substantial
was first raffled, and that the dismissal thereof was then a
the
complaint
was
withdrawn,
no
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
xxx
issued
xxx
by
Judge
Bautista-Ricafort
in
the
application
for
marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were
issues, to wit:
SHOPPING?
SEC. 5. Certification against forum shopping. The plaintiff
II
PENDENTE
IMPLEMENTING
LITE
AND
HER
RELATED
MARRIAGE?
Civil Procedure. To use the wording of that rule, Judge Hows order is
(herein petitioner). Neither is there res judicata for the reason that the
"without prejudice".
judge. There are five (5) RTC branches in Paraaque, namely, branch
nos. 257, 258, 259, 260 and 274. Second, Judge Bautista-Ricafort of
could have filed before the same judge a motion for her inhibition on
11
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
has ever been rendered against him in any of the cases he has
children. Private respondent cannot validly claim that he was not ably
during the hearing on that incident on May 13, 1998 when he himself
one case will amount to res judicata in the other.13 For the principle
It is also too late for the private respondent to claim wrong venue in
is final; and (4) the two actions involve identical parties, subject matter
14
petitioner in Civil Case No. 97-0523 which was the first case filed and
parents reside.
raffled to the sala (Branch 257) of Judge How. The dismissal without
prejudice of the complaint in Civil Case No. 97-0523 at the instance of
the first case before Judge How was dismissed or withdrawn by the
Case No. 97-0608 about the prior filing and dismissal of Civil Case No.
necessary to add that Circular No. 28-91 (now Section 5, Rule 7 of the
Civil Procedure
15
WHEREFORE, the Decision and Resolution dated April 21, 1999 and
July
hereby REVERSED, and the Orders dated May 13, 1998, May 19,
20,
1999
respectively,
of
the
Court
of
Appeals
are
to subvert its own ultimate and legitimate objective or the goal of all
rules or procedure which is to achieve substantial justice as
SO ORDERED.
January 9, 2013
APPEALS, Respondents.
case at bar, is not fatal as to merit the dismissal and nullification of the
entire proceedings considering that the evils sought to be prevented
DECISION
by the said certificate are not present. It is in this light that we ruled
in Maricalum
Mining
Corp.
v.
National
Labor
Relations
the
Decision1 dated
September
9,
2008
and
Resolution2 dated
85384. The CA affirmed the Orders dated March 7, 2005 and May 4,
For a party to be adjudged guilty of forum shopping in the trial courts,
2005 of the Regional Trial Court (RTC) of Paraaque City, Branch 260
judicata must be filed before the proper trial court and a hearing
conducted thereon in accordance with Section 5, Rule 7 of the 1997
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
On May 19, 1998, the trial court issued an Order4 granting petitioners
The petition for certiorari in the case at bar on the ground of alleged
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
tuition fees which the defendant has agreed to defray, plus expenses
judicata before the trial court. But private respondent did not file such
for books and other school supplies), the sum of P42,292.50 per
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
demand, within the first five (5) days of each month beginning June
reconsideration
on
the
ground
of
his minor children during the pendency of the action; (5) there is no
shouldered by the plaintiff and the defendant, share and share alike.
proper.
x xxx
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
On May 16, 2005, the trial court rendered its Decision11 in Civil Case
proceedings and orders issued by the trial court in the application for
the same parties." The assailed orders for support pendente lite were
thus reinstated and the trial court resumed hearing the main case.
support for the children as fixed by the court was even higher than his
amounts are being spent. For that purpose the respondent shall then
following
and
testimonial evidence: (1) the spouses eldest child, Jose Antonio, Jr. is
circumstances
well-supported
by
documentary
payment of the tuition fees and other school fees and charges
salary; (2) all the children stay with private respondent on weekends in
General, the Office of the City Prosecutor, Paranaque City, and the City
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
In her appeal brief, petitioner emphasized that she is not appealing the
Decision dated May 16, 2005 which had become final as no appeal
x xxx
Conversely, an order that does not finally dispose of the case, and
the RTC Order dated March 7, 2005, issued prior to the rendition of
does not end the Courts task of adjudicating the parties contentions
the decision in the main case", as well as the May 4, 2005 Order
and determining their rights and liabilities as regards each other, but
13
the ground that granting the appeal would disturb the RTC Decision of
May 16, 2005 which had long become final and executory. The CA
and support in arrears, as the term suggests, were issued pending the
marriage, and are therefore interlocutory. They did not finally dispose
MERELY INTERLOCUTORY?
of the case nor did they consist of a final adjudication of the merits of
petitioners claims as to the ground of psychological incapacity and
REVERSIBLE
ERROR
WHEN
IT
DISMISSED
The core issue presented is whether the March 7, 2005 and May 4,
or final.
This Court has laid down the distinction between interlocutory and final
orders, as follows:
out that the ruling on support in arrears which have remained unpaid,
1998 Order and related orders were in the nature of final orders
under Sections 1 and 4 of Rule 61 of the Rules of Court can apply only
provision reads:
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.
appealable.
commencement and the end of the suit which decides some point or
matter but is not a final decision of the whole controversy.18 An
(a)
reconsideration;
An
order
denying
motion
for
new
trial
or
19
orders.
(e) An order denying a motion to set aside a judgment by
Provisional remedies are writs and processes available during the
ancillary because they are mere incidents in and are dependent upon
20
support pendente lite are but an incident to the main action for
In all the above instances where the judgment or final order is not
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
arrearages
untenable.1wphi1
incurred
by
private
respondent
is
therefore
WHEREFORE, the petition for review on certiorari is DENIED, for lack
of merit. The Decision dated September 9, 2008 and Resolution dated
December 15, 2008 of the Court of Appeals in CA-G.R. CV No. 85384
are AFFIRMED.
With costs against the petitioner. SO ORDERED.