VOL.

117, OCTOBER 23, 1982 929

Fundamentals of Support Pendente Lite

ANNOTATION

FUNDAMENTALS OF SUPPORT PENDENTE LITE

By
Atty. SEVERIANO S. TABIOS

___________________

§ 1. Introduction, p. 929.
§ 2. Procedural requirements, p. 930.

A. Need for Application and Hearing, p. 930.

B. Exercise of Judicial Discretion, p. 931.
C. Enforcement of Judicial Order, p. 932.

§ 3. Defenses against support Pendente lite, p.

933.

A. Denial of Paternity, p. 933.

B. Non-existence of Marriage, p. 934.
C. Death of Recipient, p. 934.
D. Improper Conduct of the Person Seeking Support,
p. 934.

§ 4. Remedy against denial of support Pendente

lite, p. 935.

___________________

§ 1. Introduction

Support pendente lite is an amount adjudicated by the trial

court during the pendency of an action for support upon
application by plaintiff at the commencement of the proper
action or at any time afterwards. It is a remedy recognized
by the Revised Rules of Court and classified as a
provisional remedy
930

930 SUPREME COURT REPORTS ANNOTATED

Fundamentals of Support Pendente Lite

1
rendered by the court as equity and justice may require.
As support pendente lite is a provisional remedy, it is not
necessary that the court should inquire fully into the
merits of the case, it being sufficient that the court
ascertain the kind of evidence and the amount thereof that
is deemed sufficient to enable it 2 to justly resolve the
application one way or the other. Mere affidavits may
satisfy the court
3
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 4
affidavits,
depositions or other authentic documents. Notice of the
application shall then be served upon the adverse party
who shall be required to answer within three (3)5 days,
unless a different period of time is fixed by the court.
After the answer is received by the court or after the
expiration of the time for filing an 6answer, a day will be set
for the hearing of the application. whereby the 7 defendant
is afforded the opportunity to prove his defense. The facts
in issue shall be proved in the8 same manner as is provided
in connection with motions. In this regard, it is not
necessary to require the

________________

1 Sections 1 and 5, Rule 61, Revised Rules of Court.

2 Reyes vs. Court of Appeals, et. al., L-48219, Feb. 28, 1979, 88 SCRA
803, 809.
3 Sanchez vs. Zulueta, et al., 68 Phil. 110, 112; Reyes vs. Court of
Appeals, et. al., L-48219, Feb. 28, 1979, 88 SCRA 803, 809.
4 Section 1, Rule 61, Revised Rules of Court.
 5 Section 2, Rule 61, Revised Rules of Court.
6 Section 4, Rule 61, Revised Rules of Court.
7 Sanchez vs. Zulueta, et. al., 68 Phil. 110; Mangoma vs. Macadaeg, L-
5153, Dec. 10, 1951.
8 Section 4, Rule 61, Revised Rules of Court.

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VOL. 117, OCTOBER 23, 1982 931

Fundamentals of Support Pendente Lite

parties to go fully into the merits of the case, it being

sufficient for the court to ascertain the kind and amount of
evidence deemed sufficient to enable it to justly resolve the
application one way or the other, considering the9
provisional character of the resolution to be entered.
Moreover, where the status or juridical relation alleged by
the applicant as ground for his right to support is denied by
the adverse party, the evidence therein shall be clear and
satisfactory as the lack of proof thereon would render an
order granting support pendente
10
lite as having been issued
in excess of jurisdiction.
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 11
demands it extrajudicially
for maintenance and support. For this purpose, support
can be demanded by reason of imperative necessity and the
law presumes that such 12
necessity does not exist unless
support is demanded.

B. Exercise of Judicial Discretion

After having determined provisionally the facts, the judge
of the court where the principal action for support is
pending shall issue such order as equity and justice may
require. In this regard, the judge shall give due regard to
the necessities of the applicant, the means of the adverse
party, the probable outcome of the principal case, and such
other circumstances as may aid him in the proper
elucidation of the question to be resolved. Correspondingly,
if the application is granted, the judge shall fix the amount
of money to be provisionally paid and the terms of payment
thereof. On the other hand, if the ap-

________________
 9 Reyes vs. Court of Appeals, et al., L-48219, Feb. 28, 1979, 88 SCRA
803, 809.
10 Francisco vs. Zandueta, 61, Phil. 752, 757; Herrera vs. Barretto, 25
Phil. 245; Lanzuela-Santos vs. Sweeney, 4 Phil. 79; Yangco vs. Rhode, 1
Phil. 404.
11 Art. 298, New Civil Code.
12 Jocson, et al. vs. Empire Insurance Co., et. al., 55 O.G. 2628.

932

932 SUPREME COURT REPORTS ANNOTATED

Fundamentals of Support Pendente Lite

plication is denied, the judge shall schedule the13trial of the

principal case on the merits as early as possible.
It is to be understood that the order, whether denying or
granting the support pendente lite, is interlocutory and
consequently not appealable. However, if the application is
granted, the order is immediately executory. Moreover, it
has been held that while an order denying or granting
support pendente lite is interlocutory and, consequently,
nonappealable; if an appeal is nevertheless taken thereon,
and no objection is interposed hereto, the appeal14
shall be
entertained as the objection is deemed waived.
It may not be amiss to mention, moreover, that in
disposing of the question of support pendente lite, the judge
may, subject to the requirements of due process, give all
such directions
15
and orders as it may deem necessary or
expedient. For this purpose, the exercise of judicial
discretion is presumed to be performed in accordance with
the tenets of justice and fair play and it is incumbent upon
the party who alleges
16
abuse of judicial discretion to offset
the presumption.

C. Enforcement of Judicial Order

It has been held that disobedience to an order granting 17
support pendente lite constitutes contempt of court.
However, before he is punished for contempt, the defendant
who fails to comply with the court order must show18
cause
why he should not be punished for contempt. In this
regard, should the defendant appear to have means to pay
support and refuse to pay, then either an order of execution
may be issued or a penalty for contempt may be imposed or
both execution and con-

________________

13 Section 5, Rule 61, Revised Rules of Court.

 14 Salazar vs. Salazar, L-5823, April 29, 1953.
15 Section 5, Rule 61, Revised Rules of Court.
16 Philippine National Bank, et. al. vs. Philippine Milling Co., Inc., et.
al., L-27005. January 31, 1969, 26 SCRA 712, 715.
17 Perkins vs. Perkins, 57 Phil. 223, 224; Hashim vs. Concepcion, 42
Phil. 694, 696; Mendoza vs. Parungao, 41 Phil. 271.
18 Section 6, Rule 61. Revised Rules of Court.

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VOL. 117, OCTOBER 23, 1982 933

Fundamentals of Support Pendente Lite
19
tempt may be ordered. In this regard, the enforcement
order shall depend on the exercise of judicial discretion on
how defendant justifies his failure to comply with the court
order.
It should be underscored that an order for support
pendente lite is in its very nature contingent and the
dismissal of the main action has the effect of abrogating the
order. Thus, where the order to pay alimony pendente lite
was issued in an action for support brought by the wife,
but, which was later dismissed on hereon motion, the
husband cannot be obliged to pay such support pendente
lite in a subsequent action brought by the wife for the same
purpose,20
unless it be by an order issued in the second
action.

§ 3. Defenses against support pendente lite

A. Denial of Paternity
As the obligation to render support arises from the
relationship of parent and child, husband and wife,
legitimate
21
ascendants and descendants and brothers and
sisters, a denial of the relationship from which the
obligation to give support arises will be considered a valid
defense against an action for support. Thus, where a minor,
through a guardian ad litem, brings an action for support
on the ground that he is a son of the defendant, and the
defendant denies his paternity, the Supreme Court has
declared that the court the court has no jurisdiction to
award support pendente lite. In this regard, the Supreme
Court observed that as the civil status of being a child has
been denied and has therefore become an issue in the case,
it would be apparent that no effect could be given to such a
claim until an authoritative declaration be made as to the
 22
existence of the cause.

________________

19 Section 6, Rule 61, Revised Rules of Court.

20 Saavedra vs. Ibañez Estrada, 56 Phil. 33.
21 Art. 291, New Civil Code.
22 Francisco vs. Zandueta, 61 Phil. 752.

934

934 SUPREME COURT REPORTS ANNOTATED

Fundamentals of Support Pendente Lite

B. Non-existence of Marriage
Since the obligation to 23
give support arises from the
relationship of spouses, the absence of such relationship
would therefore defeat any claim for support. Thus, if the
answer of the defendant denies the marriage between him
and plaintiff, thus putting in issue the very status of the
plaintiff, support pendente lite should
24
not be allowed, until
the marriage is established as a fact.
It should be remembered that merely asserting the
invalidity of a marriage may not be a defense against a
support pendente lite because until the marriage is
invalidated it will subsists. Thus, while the cessation of
marriage will necessarily terminate the obligation to give
support and is therefore a defense against an action for
support, suport pendente lite may still be ordered25 during
the proceedings for the annulment of the marriage, as the
obligation of mutual support between26 spouses will cease
after the final judgment of annulment.

C. Death of Recipient
Under the law, the obligation to 27
give support shall cease
upon the death of the recipient. Thus, where a judgment
for support was rendered, under which the defendant was
to pay to the mother of a child, as support for the latter, a
certain sum, the death of the child extinguishes the
obligation by the defendant to give support, because the
support28
is not for the benefit of the mother but of the
child.

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,

________________

23 Art. 291, New Civil Code.

24 Yangco vs. Rhode, 1 Phil. 404.
25 Art. 292, New Civil Code.
26 Art. 292, New Civil Code.
27 Art. 303, New Civil Code.
28 Malabanan vs. Abeto, 74 Phil. 13.

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VOL. 117, OCTOBER 23, 1982 935

Fundamentals of Support Pendente Lite

namely: (1) when the recipient, be he a forced hire or not,

has committed some act which gives rise to disinheritance;
and (2) when the recipient is a descendant, brother or
sister of the obligor and the need for support is caused by
his or her bad conduct or by the29
lack of application to work,
so long as this cause subsists. For this purpose, a mother
who delivered her child to a couple and since then never
took care of her, completely abandoning
30
her, can not later
ask for support from the child. Similarly, since under the
New Civil Code, a spouse may be disinherited
31
when he or
she has given cause for legal32separation and adultery is a
cause for legal separation, therefore, in an action for
support by a wife who was alleged to have committed
adultery, the33abandoning husband may interpose adultery
as a defense.

§ 4. Remedy against denial of support pendente lite

An order of the court denying34 an application for pendente

lite is not final in character and 35
as such is considered
interlocutory and non-appealable. As it is non-appealable,
the remedy therefore is an original action for certiorari to
annul the order of denial. Thus, in a case where the trial
judge denied an application for support pendente lite on
the ground that as the legal separation of the spouses
which the plaintiff sought has not, as yet been decreed and
the children were not parties to the case, support pendente
lite would be premature, the Supreme Court in upholding
the reversal of the lower court's decision declared that since
the order denying support pendente lite is interlocutory,
plaintiff would have to wait, for its review by appeal, until
the rendition of judgment on the

________________

29 Art. 303, New Civil Code

30 Castillo vs. Castillo, O.G. March 17, 1941, p. 968.
31 Art. 921, New Civil Code.
32 Art. 97, New Civil Code.
33 Lerma vs. Court of Appeals, et. al., L-33354, Dec. 20, 1974, 61 SCRA
440, 445-446; Quintana vs. Lerma, 24 Phil. 285; Sanchez vs. Zulueta, 68
Phil. 110; Mangona vs. Macadaeg, et. al., 90 Phil. 508; Olayvar vs.
Olayvar, 98 Phil. 52.
34 San Juan vs. Mejia, et. al., L-59906, Oct. 23, 1982.
35 Salazar vs. Salazar, L-5823, April 29, 1953.

936

936 SUPREME COURT REPORTS ANNOTATED

Fundamentals of Support Pendente Lite

merits, which may not be forthcoming until months or

years later; but since plaintiff and her children needed
alimony to live somehow, an 36 appeal would not have been a
speedy and adequate remedy.
An action for certiorari is fundamentally based 37
on an
abuse of discretion on the part of the judge. For this
purpose, an abuse of discretion must be grave and patent
in order that
38
it would justify the issuance of the writ of
certiorari, otherwise
39
the petition for certiorari would
likely be denied. In this regard, an abuse of discretion is
considered grave when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction,
or where the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal
hostility, amounting to an evasion of positive duty or to a
virtual refusal to perform40 the duty enjoined or to act at all
in contemplation of law. Necessarily, where a judge dis-
missed an action for support on account of the absence of
petitioner and her child in court, even if the lawyer for
petitioner was ready to present evidence in support of the
complaint the Supreme Court in granting a writ of
certiorari declared that the dismissal of a petition for
support without any lawful ground or reason for so doing
amount to an excess

________________

36 Vinluan vs. Court of Appeals, et. al., L-25029, August 28, 1968, 24
 SCRA 787, 788.
37 Section 1, Rule 65, Revised Rules of Court.
38 Moscoso vs. Quitco, L-29486, Dec. 16, 1970, 36 SCRA 256; Aro vs.
Nañawa, L-24163, April 28, 1969, 27 SCRA 1090; Lantin vs. Kapunan, L-
29894, Mar. 28, 1969, 27 SCRA 613; Chieng Hung vs. Tam Tien, L-21209,
Sept. 27, 1967, 21 SCRA 211; Arroyo vs. Mencias, L-21186, Aug. 31, 1965,
14 SCRA 1050; Abig vs. Constantino, L-12460, May 31, 1961, 2 SCRA
299; Samson vs. Yatco, L-15952, Apr. 28, 1961, 1 SCRA 1145.
39 Socorro vs. Ortiz, L-23608, Dec. 24, 1964, 12 SCRA 641; Manalo vs.
Court of Appeals, L-27492, July 31, 1967, 20 SCRA 926; Victorias-
Manapla Workers Org'n vs. Tabigne, L-19658, Dec. 29, 1964, 12 SCRA
687; City of Davao vs. Dept. of Labor, L-19488, Jan. 30, 1965, 13 SCRA
111.
40 People vs. Marave, L-19023, July 31, 1964, 11 SCRA 618.

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VOL. 117, OCTOBER 23, 1982 937

Fundamentals of Support Pendente Lite

of jurisdiction and
41
abuse of discretion on the part of the
respondent court.

··o0o··

________________

41 Samson vs. Yatco, et. al., L-15952, April 28, 1961, 1 SCRA 1145,
1150.

938

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