RULE 61 SUPPORT ‘PENDENTE LITE’ SECTION 1. Application. — At the commencement of the proper action or proceeding, or at any time prior to the judg- ment or final order, a verified application for support pen- dente 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. (1a) COMMENT: 1. - Source of Rule Taken from Seetion I of the former Rule. * 2. No Substantial Change 3. Notes and Cases a, Support pendente lite is an amount adjudicated by the trial court during the pendency of an action for support upon appli- cation by the plaintiff at the commencement of the proper action or at anytime afterwards, It is the remedy recognized by the Revised Rules of Court and classified as a provisional remedy rendered by the court as equity and justice may require.' b. “The proper action referred to in the rule is an action for support. There must be a statement of grounds of right to support to avail of the remedy of support Pendente Lite.” Spousal support. or child support may likewise be granted in cases for declaration of absolute nullity of void marriage or for annulment of voidable mar- 2117 SCRA 929, Fundamentals of Support Pendente Lite, 2Cequia, t al. v, Baltazar, 85 Phil. 265, 212Rule G1 SUPPORT PENDEN ITE! Sea. 2 riage or separation Rule on Provisional Orders (Sees. 2 and 3) and, in criminal cases. (Sec. 6, infra}. «The amount of support pendente lite is not final in charac- ter 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.” d. It lies within the discretion of the trial court to direct the father to give support pending the appeal.* But if appeal is Alrendy perfected the trial court: loses jurisdic- tion to issue execution of judgment for support. : e. An appellate court may grant alimony. pendente tite even if the trial court refused to grant the same." SEC. 2. Comment. — A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affi- davits, depositions or other authentic documents in support thereof. (2a, 3a) COMMENT: 1. Source of Rule Taken from Seetions 2 and 3 of the farmer Rule which reads: SEC. 2. Notice. — Notice of the application shall be served upon the adverse party who shail have three (3) days to answer, unless a different period of time is fixed by the court. SEC. 3. Answer, — The answer shall be in' writing and accom- panied by affidauits, depositions or other authentic documents siup- porting the same. Valenzuela, 117 SCRA 926, ‘Ramos v. CA, 45 SCRA 604, Vasco y CA, 81 SCRA 764. "Ramos v, GA, supra, San duan. 213Sev, di REMEDIAL LAW Rule 61 VOL. 11 2. Changes in Rule ‘In lieu of an answer, the defendant is given five (5) days to comment thereon unless a different period is fixed by the eourt upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof, SEC. 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 thereaf- ter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. (4a) COMMENT: 1. Source of Rule Taken from Section 4 of the farmer Rule. 2. Changes in Rule Under the present Rule the application shall be set for hearing not more than three (3) days after the filing of the comment or expiration of the period for filing. The facts in issue shall be proved in the same manner as is provided for evidence on mations. 3. Notes and Cases a. Defendant Allowed To Prove Defense The defendant must be granted an opportunity to prove his valid defense such as adultery. After the answer is received by the Court or after the expira- tion of the time for filitig an answer (Sec. 4, Rule 61, RRC}, a day will be set for the hearing of the application, whereby the defendant is afforded the opportunity to prove his defense? The facts in issue shall be proved in the same manner as is provided in connection ‘Ramos "Sanches 1951), Court of Appeals, 45 SCRA 604, . @ulucta, et al, 68 Phil, 110; Mangoma ¥, Macadaeg, 90 Phil, 508 214Hale 61 SUPPORT ‘PENDENTE LITE” Seed with motions." It is not however, necessary to require the parties La 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 juatly resolve the application ene way er the oth considering the provisional character of the resolution to be tered,‘ However, where the status or juridical relation alleged by the applicant as ground for his right to support is denied by Lhe adverse party, the evidence therein shall be elear and satisfactory as the luck of proof thereon woild render an order granting support pendente lite as having been issued in excess of jurisdiction.* b., Adultery as Valid Defense According!y, it has been held that the Court of Appeals commit- ted an error where it refused to allow the defendant Lo present his evidence for the purpose of determining whether it is sufficient, prima facie to overcome the application for support pendente lite. Adultery on the part of the wife is a valid defense against an action for support. 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 he the child of the defendant, hence would not be entitled to support as such, But as thig defense should be established, and nol merely alleged, it would be unavailing if proof thereof is not permitted. It is ourse necessary to go fully into the merits of the case, it being t that the court ascertain the kind and amount of evidence may deem sufficient to enable it to justly resolve the appli- vation, one way or the other, in view of the mere provisional charae- ter of the resolution to be entered.® 1. , ifdenied, the remedy is certiorari, An‘order of the court denying an application for support pen- dente lite is not final in character’ and as such is considered inter- locutory and non-appealable.* As it is non-appealable, the remedy ‘ection 4, Rule 61, Revised Rules of Court. *Reyes v. Ines-Luciano, G,, No, L-48219, 88 SCRA 808, 809, Feb, 28, 197. *Frunciseo ¥: Zanduota, 61 Phil, 752, 757; Herrera v, Barretto, 25 Phil, 245, ‘Ramos ¥, Court of Appeals, 45 SCRA 604. paluan vy, Valenzuela, 117 SCRA 926 (1982), ; Salazar, LGB i 2Sec, 4 REMEDIAL LAW Rule @1 VOL, 1 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 Jite on the ground that as the legal separation of the spouses which the plaintiff sought has not, as yet been de- creed and the children were not parties to the case, support pendente dite would be premature, the Supreme Court in uphelding the re- versal of the lower court's decision declared that since the order denying support pendente tite is interlocutory, plaintiff would have to wait, for its review by appeal! 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? 2. Where the judge dismissed an action for support on ac. count of the abgence 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 de- elared that the dismissal of a petition for support without any lawful ground or reason for so doing amounts to an exce 8 of jurisdiction and abuse of diseretion on the part of the respondent court." 3. Non-appealability may be waived dy failure to object." c. | Affidavits to Prove Amount Sufficient In determining the amount to be awarded ag support pendente lite, mere affidavits may satisfy the court to pass upon the applica- tion, It ig enough that the facts be established by affidavits or other documentary evidence Appearing in the record,'? SEC. 4. Order. — The court shall determine provision- ally the pertinent facts, and shall render such orders as jus- tice and equity may require, having due regard to the prob- able 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 sup- Vinluan « Court of Appeals, ot al., 24 SCRA 787, TBB, August 28, 1968. 31 Yirico, 1 SCRA 1145, 1150, April 28, 1961. Samah ‘'Salnaar v, Suluwie, supre “Reves v. Ines-Lueiann, 8 SCRA 803, 800, 216Rule 6) SUPPORT 'PENDENTE LITE Bec. 4 port as should be provided, taking into account the necessi- ties of the applicant and the resources or means of the ad- verse 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. (5a) COMMENT: 1. Source of Rule Tuken fram Set. 5 of the former rule. 2. Changes in the Rule No substantital change. The support granted may be in money or other forms of support. in accordance with Art. 194-of the Family Code of the Philippines. (Feria} : Factors in Determining Support The following rules were laid down in determining support spousal and child support; SEC. 2. Spousal Support. — In determining support for the spouses, Lhe court may be guided by the following rules: (a) In the absence of adequate provisions in a written agree- ment between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. tb) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. {c}) The court may likewise consider the following factors: (1} whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek out- side employment; (2) the time necessary to acquire sufficient educa- tion and training to enable the spouse seeking support to find appro- priate employment, and that spouse's future earning capacity, (4) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the 217Bec, 4 REMEDIA Rule 61 ve labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services ren- dered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking indo account that spou sarning capacity, earned and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and equitable. (d} The Family Court may direet the deduction of the provi- sional support from the salary of the spouge. SEC. 3. Child Support, — The common children of the spouses shall be aupperted from the properties of the absolute community or the conjugal partnership. Subject. to the sound ‘discretion of the court, either parent or both may be ordered to give an umount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial re- sources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. Thus, in determining the amount of support to be awarded, guch amount should be in provortion to the resources or means of the giver and the necessities of the recipient, pursuant. to Articles 194, 201 and 202 of the Family Code, to wit: Art. 194. Support comprises everything indispensable for ce, dwelling, clothing, medical attendance, education portation, in keeping with the financial capacity of the family. The education of the person entitled to be supported re- ferred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond 218Role él SUPPORT TE the age of majority, Transportation shail include expenses in going to and from school, or to and from place of work, Art, 201. The amount of support, in the cases referred Lo in Articles 195! and 1962 shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Art. 202, Support in the cases referred to in the preceding article shall 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 furnish the same, It is incumbent upon the trial court to base ils award of support on the evidence presented before it, The evidence must prove the capacity or resources of both parents who are jointly obliged to sup- port their children as provided for under Article 195 of the Farnily Code; and the monthly expenses ineurred for the sustenance, dwell- ing, clothing, medical attendance, education and transportation of the child.* The Family Court may direct. the deduction of the provisional support from the salary of the parent." SEC. 6. Enforcement of order. — If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of ‘Art. 195, Subject te the provisions of the succeeding articles, the following are obliged to support each other to the whole extend sel forth in the preceding article: (1) The apauses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimat children of the batt (4) Parenta and their illegitimate children and the mate children of the latter (6): Legitimate broth whether of full or halfblood, Art. 196. Brothers and sistere not legitimately related, whether of the full or halftblood, ure likewise bound to support each ether to the full extent set forth in Article 194, excupt only when the need far support of the brother or sister, being of ge, is due to 4 cause imputable to the claimant's fault or negligence. ‘Lam v. Chua, G.R. No. ch 14, 2004, ‘Rules on Provisional Re et Lam v. Chun, 4. 9004, 426 SCRA 20) Amount of Support is never peemi port dees not became final but ig always subject 10 modifi. and Wepitimate itimata und ilegiti- KR, No, M26, March 18, t. The Judgment. for aup- ica. 219Sec. 6 REMEDIAL LAW Rule gl VOL. 11 execution against him, without prejudice to his liability for contempt. (6a) : 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 execution to enforce his right of reimbursement against the person ordered to provide such support, (n) COMMENT: 1. Source of Rule Taken fram Section 6 of the former Rule which reads: SEC. 6. Enforcement of order, — If defendant faits to comply with an order granting support pendente lite, he must be ordered ta shou: cause why he should not be punished for contempt, Should the defendant appear to have means ta pay support and refuses to pay, either an order of execution may be issued or penalty for contempt may be imposed, or both. The second paragraph is based an Art. 207 of the Family Cade of the Philippines. (Feria) 2. Change in the Rule “Should the defendant appear to have means to pay support and refuses to pay” was deleted as a condition for contempt, 3. Notes and Cases Examination of debtor under Section 38, Rule 39 to determine the financial condition of the defendant is permitted.! SEC. 6. Support in criminal cases. — In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the 'Heashim v. Concepcion, 42 Phil, 696. 220)Rule 61 SUPPORT ‘PENDENTE LI Sec. 7 accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the erime. The application therefor may be filed successively by the offended party, her parents, her grandparents or guard- ian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. (n) COMMENT: ‘ 1. Source of Rule This is based on Sec.:1 of Rule 111. In criminal actions where the civil liability includes support for the offspring ag a consequence of the crime and the civil aspect thereof has not been waived, re- served or instituted prior to its filing, the civil action is deemed instituted with the criminal action. SEC. 7. Restitution. — When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts al- ready paid with legal interest from the dates of actual pay- ment, without prejudice to the right of the recipient to ob- tain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided the same may likewise seek reimbursement thereof in a sepa- rate action from the person legally obliged to give such sup- port, (n) COMMENT: 1, Source of Rule This is a new provision, which provides for restitution, when the judgment or final order of the court finds that the person who has been providing support pendente lit not liable therefor, The Court: a. shall order the recipient thereof to return to the former 221Bee, 6 REMEDIAL LAW Rule 61 VOL. TI the amounts already paid with legal interest from the dates of ac- tual payment, b. This is without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. e. Should the recipient fail to reimburse said amounts, the person who provided thru same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support, Examination of debtor under Section 38, Rule 39 to determine the financial condition of the defendant is permitted.* 'Heashim v, Concepcion, 42 Phil 696. 222