Lerma v.

CA , L-33352, 20 December 1974

LERMA v. CA

No. L-33352 Dec 20, 1974

Petitioner: Teodoro Lerma

Respondents: CA and Concepcion Diaz

Nature of the case: Petition for review on certiorari of a

resolution of CA

Ponente: Makalintal, CJ

FACTS:

1) Lerma and Diaz married on May 19 1951

2) August 22, 1969: petitione filed a complaint for adultery

against the respondent and a certain Teodoro Ramirez

3) Nov 18, 1969: respondent filed with the lower court a

complaint against petitioner for legal separation and or

separation of properties, custody of their children and

support with an urgent petition for support pendent elite for

her and their youngest son Gregory

4) The respondents complaint for legal separation is based on

two grounds: concubinage and attempt against her life

5) Petitioner filed his opposition to the respondents application

for support: defense: adultery charge he had filed against

respondent

CFI: granted the respondents application for support pendent

elite amended: amount from 2,250 to 1,820

6) petitioner filed with CA a petition for certiorari and

prohibition w/ preliminary injunction to annul the

aforementioned ordersgrave abuse of discretion

CA: issued a writ of preliminary injunction to stop Judge Luciano

from enforcing said orders

7) respondent court then set aside the assailed orders and

granted the petitioner an opportunity to present evidence

before the lower court (oct 8)

8) respondent moved to reconsider decision on the ground that

petitioner had not asked that he be allowed to present

evidence in the lower court

9) respondent court set a side oct 8 decision, dismissed the

petitionnow subject of instant proceeding for review (jan

20, 1971)

10) petitioner filed an urgent motion for a writ of preliminary

injunction and/or restraining order

11) court resolved to issue a TRO effective immediately and until

further orders from the Court- addressed to judge luciano

and reps

12) respondent filed opposition w/ a prayer for immediate lifting

of the TRO issued ex parte: grounds of motion;

a) an order granting support pendent elite, although

interlocutory is immediately executory even if appealed

unless enjoined

b) dismissal of petition by CA rendered functus oficio the writ of

preliminary injunction it had previously issued

c) under Art 292 of the NCC: during the proceedings for legal

sep or for annulment of marriage, the spouses and children

shall be supported from the conjugal partnership property

such support is mandatory even if there be showing that the

wife is guilty of adultery

Note: CFI of Rizal decided the adultery case and found her guilty

together with her co-accused, teodoro Ramirez, sentencing them

to a term of imprisonment
- second adultery case with Jose Gochangco

ISSUE: Whether adultery is a good defense against the respondents

claim for support pendente lite

DECISION OF SC: Resolution of respondent CA (jan 21, 1971) and the

orders of the respondent court (JDRC) are all SET ASIDE and their

enforcement enjoined, without prejudice to such judgment as may be

rendered in the pending action for legal sep between the parties

RATIO:

1) adultery is a good defense (Art 292)

2) it is suggested that while adultery may be a defense in an

action for personal support. That is support of the wife by the

husband from his own funds, it is not a defense when

support is taken from the conjugal partnership property

3) during the pendency of the of the legal sep proceeding

(support is taken from the conjugal partnership) it does not

preclude the loss of such right in certain cases

4) the said article contemplates the pendency of the court

action and inferentially at least a prima facie showing that

action will prosper

5) ART 100 of CC: legal sep may be claimed only by innocent

spouse. Where both spouses are offenders, a legal sep

cannot be claimed by either of them

6) Probable failure of the respondents suit for legal sep can be

foreseen since she is not an innocent spouse, having been

convicted of adultery by the CFI

7) The right to separate support or maintenance even from the

conjugal partnership property presupposes the existence of

a justifiable cause for the spouse claiming such right to live

separately
8) Art 104 of the CC: after the filing of petition for legal sep the

spouses shall be entitled to live separately from each other

9) A petition in bad faith, such as that filed by one who is

himself or herself guilty of an act which constitutes a ground

for legal sep at the instance of the other spouse, cannot be

considered as within the intendment of the law granting

separate support

10) Art 303: obligation to give support shall cease when the

recipient, be he a forced heir or not, has committed some

act which gives rise to his disinheritance

11) Art 921: one act is when a spouse gave cause for legal

separationthe loss of the substantive right to support in

such situation is incompatible with any claim for support

pendente lite

Santero v. CFI, L-61700, 14 September 1987