• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
PROVISIONAL REMEDIES (Rule 61)
R U L E 61SUPPORT PENDENTE LITE
The last provisional remedy is support pendente lite or otherwise known as
alimony  pendente lite
, allowance or support during the pendency of the main action.Q: What is the main action?A: Action for Support.We know that support is something urgent. The plaintiff needs support during thependency of the action. What is the use of winning the case after several years when atthat time you already starved to death? If you cannot wait, you can ask for support whilethe case is going on. But you have to prove your right.
SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente 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.
Q: What is the amendment in Section 1?A: The law now requires the application for support pendente lite to be verified under oath.Your application must be accompanied by affidavit, depositions or other authenticdocuments such as if the father abandons the child, the child can prove his status byattaching his birth certificate to his application, the marriage contract plus the allegationthat the plaintiff is not in a position to support himself and the defendant is very muchcapable. So, financial condition of the parties must be alleged.Q: What happens after filing that ?A: The court must give a copy of the application for support and all supportingdocuments to the adverse party.
SECTION 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 affidavits , depositions or other authentic documents in support thereof.
The defendant is given five (5) days to answer the support pendente lite. Do not confusethis with the answer to the complaint which is 15 days. The answer to the application for support is 5 days because it is urgent.Another innovation introduced by the law is the comment of the defendant must also beverified.The comment it must be proved in the same manner as provided for evidence in motion.So it’s possible to be affidavits, depositions, authentic documents.. Pwede man ang oraltestimony.
43
 
PROVISIONAL REMEDIES (Rule 61)
SECTION 3. Hearing.- After the comment is filed, or after theexpiration of the period for its filing, the applications shall be set for hearing not more than three (3) days thereafter. The facts inissue shall be proved in the same manner as is provided for evidence on motions.
After the comment, 3 days thereafter, the court is obliged to hear the motion.
SECTION 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of thecase 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 support as should be provided, taking intoaccount the necessities of the applicant and the resources or means of the adverse 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.
Under section 4, the
court 
will now determine temporarily, provisionally, whether there is a right to support or not.
The hearing of the evidence will come later.If you are the plaintiff you should not present all your evidence otherwise it will delay your application. Mga simple lang muna. If the application is granted, the court shall fix theamount of money to be provisionally paid or such other form of support as may beprovided, that is added by the law based on the needs of the recipient and theresources of the obligor.Like for example, kung gusto mong mamalengke, ikaw ang mamalengke. I know of somebody against whom support pendente lite was filed. He doesn't want to support hischildren because of his wife will not give it to the children. So, we asked the court thatinstead of money, it is in kind. So, he goes to the market or grocery to buy things for hischildren. That is allowed.
SECTION 5. Enforcement of order.- If the adverse party fails tocomply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of executionagainst him, without prejudice to his liability for contempt.When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to theapplicant 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.
Q: How do you enforce an order for support pendente lite ?
 
A: Section 5, 1st paragraph. The remedy to enforce an order granting support pendentelite, is an
order of execution
against him:1.)for the unpaid monthly support/ the collection of missed support and,
44
 
PROVISIONAL REMEDIES (Rule 61)
2.)a possible liability for contempt, that is if the defendant is capable of giving andhe refuses.Take note that the court can issue motu propio or on motion.The execution is an exception to the general rule in
Section 1 of Rule 39
, whereinterlocutory orders cannot be the subject of execution, to wit:
Section 1.
Execution upon judgments or final orders. Execution shallissue as a matter of right, on motion, upon a judgment or order thatdisposes of the action or proceeding upon the expiration of the period toappeal therefrom if no appeal has been duly perfected.If the appeal has been duly perfected and finally resolved, the executionmay forthwith be applied for in the court or origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforcedand of the entry thereof, with notice to the adverse party.The appellate court may, on motion in the same case, when the interestof justice so requires, direct the court of origin to issue the writ of execution.General rule: interlocutory order cannot be executed because it is not final.Exception: order for support pendente lite.Q: Suppose there is a judgment for support, not a order, and then the defendantrefuses to give support, can the defendant be adjudged liable for contempt ?A: NO. What is enforceable by contempt is refusal to comply with the order pendentelite, not judgment for support. It would seem that the only remedy there is execution.The
second part of section 5
is a new provision. Suppose the person ordered tosupport refuses to give (pilitin mo muna siya), and the child is in a hurry, naawa angkapit-bahay, so he gave the support to the child. Now, he will be the one to execute the judgment, so he can regain what he has given. This is not found in the old law. Parangsolutio indebiti.
SECTION 6. Support in criminal cases.- In criminal actions wherethe civil liability includes support for the offspring as aconsequence of the crime and the civil aspect thereof has not beenwaived, reserved or instituted prior to its filing, the accused may beordered to provide support pendente lite to the child born to theoffended party allegedly because of the crime. The applicationtherefor may be filed successively by the offended party, her  parents, grandparents or guardian and the State in thecorresponding criminal case during its pendency, in accordancewith the procedure established under this Rule.
Section 6 is also entirely new. Correlate this with article 345 of the RPC.Q: What are the civil liability in rape, seduction, abduction, or acts of lasciviousness, incase the accused in found guilty?A: Under Article 345 of the RPC, to support the offspring.Take note: Support pendente lite can be availed in a criminal case where there is noreservation of the civil action.
45
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...