SUPPORT PENDENTE LITE

1. SUPPORT PENDENTE LITE

2. Application/Comment • Application • When filed: Upon commencement of action or anytime prior to the judgment or final order • Form: Must be verified • Content: (a) grounds for the claim; (b) financial condition of the parties; (c) affidavits, depositions or other authentic documents • Comment • When filed: Within 5 days from receipt of the Application or such other period fixed by the court • Form: Must be verified • Content: (a) Grounds resisting the claim; and (b) affidavits, depositions or other authentic documents in support thereof.

3. Hearing • When conducted: Not more than 3 days after comment filed or after expiration of the period for its filing. • Proof required: Facts must be proven through affidavits and authentic documents (evidence on motions). • Support pendentelite cannot be issued ex-parte.

4. Determination of Probable Outcome • The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having the regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. • Based on the evidence, the court makes a determination if the applicant has a right to support.

5. Enforcement • Section 5.Enforcement of order. — If the adverse party fails to comply with an order granting supportpendentelite, the court shall, motuproprio or upon motion; issue an order of execution against him, without prejudice to his liability for contempt. (6a) • When the person ordered to give supportpendentelite 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. (h)

6. Criminal Cases: Support PendenteLite • Section 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 and instituted prior to its filing, the accused may be ordered to provide supportpendentelite to the child born to the offended party allegedly because of the crime. • The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. (n)

7. Restitution • Section 7.Restitution. — When the judgment or final order of the court finds that the person who has been providing supportpendentelite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain 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 separate action from the person legally obliged to give such support. (n)

8. Judgments For Support • Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule which provides that the taking of an appeal stays the execution of the judgment and that advance executions will only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls for immediate execution of all judgments for support and makes no distinction between those which are the subject of an appeal and those which are not. To consider then petitioner's argument that there should be good reasons for the advance execution of a judgment would violate the clear and explicit language of the rule mandating immediate execution. (Gan vs. Reyes, G.R. No. 145527 May 28, 2002)

9. Can Support PendenteLite be awarded while the case is on appeal? (Garcia vs. CA, G.R.No. L-14758, March 30, 1962) • FACTS: A minor, assisted by his mother filed a suit for acknowledgement as a natural child. The minor won in the lower court. The respondent appealed to the CA. Upon motion of the minor, the lower court awarded support pendentelite while the case is on appeal. • HELD: Although the decision has not yet become final and 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 appeal. It would be a travesty of justice to refuse him support until the decision is sustained on appeal there being prima facie evidence of his right to support.

10. NEPOMUCENO vs. LOPEZ, G.R. No. 181258 March 18, 2010 Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. x xxx ART. 172. The filiation of legitimate children is established by any of the following: • The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiationin a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: • The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. I hereby undertake to give and provide financial support in the amount of P1,500.00 every fifteen and thirtieth day of each month for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment later depending on the needs of the child and my income – NOT AN ADMISSION OF LEGITIMATE FILIATION.

11. Adultery: Defense Against Actions For Support • Adultery on the part of the wife is a valid defense against an action for support. (Quintana vs. Lerma, 24 Phil 285)

12. Rule If Adultery Is Alleged as Defense • The court must conduct a hearing and allow the parties to present their respective evidences on the allegation of adultery. (Quintana vs. Lerma, supra)

13. Adultery Must Not Only Be Alleged But Also Proved • The wife asked for support pendentelite for herself and her 3 children. The husband opposed alleging adultery. • The application for support pendentelitewas set for hearing and submitted for resolution on the basis of the pleadings and the documents attached thereto by the parties. • The adultery of the wife must be established by competent evidence. Here, the husband failed to submit proof of adultery. Mere allegation of adultery will not bar the award of support pendentelite. (Reyes vs. Hon. Luciano, GR No. L-48219, Feb. 28, 1979)

14. Support PendenteLite in Legal Separation • Art. 49 of the Civil Code provides “During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children”. (Art. 292 of Old Civil Code) • Does this mean that support pendenteliteshould be given as a matter of right after legal separation is filed?

15. Support PendenteLite in Legal Separation • The law contemplates the pendency of a court action and inferentially, at least, a prima facie showing that the action will prosper. For if the action is to be groundless, the mere filing thereof will not necessarily set the law in operation. This is also the sense of Sec. 5 Rule 61 which requires the Court to make a provisional finding of the probable outcome of the case. (Lermavs. CA, G.R. No. L-33352, December 20, 1974)

16. Effect of Appeal • A judgment in a complaint for acknowledgment as a natural child was rendered in favor of the plaintiff. The putative father appealed the judgment to the CA. • May support pendentelite be awarded in the meantime? • Yes. There being at least prima facie evidence of the child’s right to support, the court acted within its power and discretion. (Garcia vs CA, GR No. L-14758, March 30, 1962)

17. Evidence Required • A court may temporarily grant support pendentelite prior to the rendition of judgment. 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.

18. Evidence Required • There is prima facie proof of filiation as shown by the following: • Constant communication with their grandfather Francisco. • In letters of grandfather to the children he used the surname “Delgado” • In one letter he extended financial help of US $1,000 • Federico, the father gave the twins a treat to Hongkong. (Mangonon vs. CA, G.R. No. 125041, June 30, 2006)

19. Grounds for Appointment of A Receiver • (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

20. No Danger To Property In this Case • A petition for receivership under Section 1(b), Rule 59 of the Rules of Civil Procedure requires that the property or fund subject of the action is in danger of being lost, removed, or materially injured, necessitating its protection or preservation. Its object is the prevention of imminent danger to the property. If the action does not require such protection or preservation, the remedy is not receivership. • In this case, Fidela’s main gripe is that Evelina and Aida deprived her of her share of the land’s produce. She does not claim that the land or its productive capacity would disappear or be wasted if not entrusted to a receiver. Nor does Fidela claim that the land has been materially injured, necessitating its protection and preservation. Because receivership is a harsh remedy that can be granted only in extreme situations, Fidela must prove a clear right to its issuance. But she has not. Indeed, in none of the other cases she filed against Evelina and Aida has that remedy been granted her. (Chavez vs. CA, G.R. No. 174356 January 20, 2010)

21. Grounds for Appointment of A Receiver • (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

22. Grounds for Appointment of A Receiver • (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

23. Grounds for Appointment of A Receiver • (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

24. Does the Posting A Counter-bond Prevent the Appointment of A Receiver? • Not necessarily • Petitioners advance the issue that the receivership should not be recalled simply because the adverse party offers to post a counterbond. if we entertain the issue, the contention is nevertheless devoid of merit. The assailed CA decision supported the discharge of the receiver with several reasons including the posting of the counterbond. While the CA made a statement that the trial court should have discharged the appointed receiver on the basis of the proposed counterbond, such opinion does not jibe with the import of Sec. 3, Rule 59. The rule states that the "application may be denied or the receiver discharged." In statutory construction, the word "may" has always been construed as permissive. If the intent is to make it mandatory or ministerial for the trial court to order the recall of the receiver upon the offer to post a counterbond, then the court should have used the word "shall." Thus, the trial court has to consider the posting of the counterbond in addition to other reasons presented by the offeror why the receivership has to be set aside. (Vivares vs. Reyes, G.R. No. 155408, February 13, 2008)