Lerma vs. Court of Appeals

Adultery is a good defense against a claim for support pendente lite, even when the claim is made in a pending legal separation proceeding under Article 292 of the Civil Code, where the provisional showing, particularly a conviction for adultery though on appeal, establishes that the claimant is not an innocent spouse and that the separation action will probably fail.

Teodoro E. Lerma and Concepcion Diaz were husband and wife, married on May 19, 1951, with six minor children. Article 292 of the Civil Code directs that during proceedings for legal separation or annulment, the spouses and children shall be supported from the conjugal partnership property. Section 5 of Rule 61 of the Revised Rules of Court governs applications for support pendente lite and requires provisional determination of pertinent facts, including the probable outcome of the case.

Teodoro E. Lerma and Concepcion Diaz married on May 19, 1951. At the time of the proceedings below they had six children — Gerardo, George, Gelacio, Gilbert, Gregory and Ma. Victoria — who were 17, 16, 14, 11, 9 and 8 years old respectively when the legal separation case was filed, with the youngest son Gregory in the mother's custody.

On August 22, 1969 Lerma filed a complaint for adultery against Diaz and Teodoro Ramirez before the Court of First Instance of Rizal as Crim. Case No. 0519. Thereafter, on November 18, 1969, Diaz filed a complaint against Lerma before the Juvenile and Domestic Relations Court of Quezon City, docketed as Civil Case No. QE-00241, for legal separation and/or separation of properties, custody of the children and support, with an urgent petition for support pendente lite for herself and Gregory. Her complaint invoked concubinage and attempt against her life. Lerma opposed the application for support pendente lite, setting up as defense the adultery charge he had filed.

Judge Leonor Ines Luciano granted the application in an order dated December 24, 1969, amended in an order dated February 15, 1970 to declare Diaz entitled to support pendente lite from the date of filing of the complaint and to reduce the monthly amount from P2,250.00 to P1,820.00. On March 12, 1970 Lerma assailed those orders in the Court of Appeals. During the pendency of the appeal until December 5, 1973, according to Lerma, Diaz never sought enforcement; on that date she filed an urgent motion to compel payment of current support and arrears on the ground that absent an injunction the orders were executory. Lerma opposed, pointing to the three-year delay, to his filing of new adultery charges against Diaz and her second paramour, and to his move for custody of Gregory. On January 19, 1974 Judge Luciano ordered payment within 15 days.

In the meantime, on September 26, 1972, the Court of First Instance of Rizal found Diaz and Ramirez guilty of adultery and imposed imprisonment, with the judgment then pending appeal in the Court of Appeals, a fact undisputed by Diaz. It was likewise undisputed that on March 30, 1970, as a result of the adulterous relations with Ramirez, Diaz gave birth prematurely to a baby boy who died the same day; she entered the hospital under the assumed name Gloria Santos and had the child falsely identified in the death certificate as the child of Rosario R. Salita, a close friend, for which falsification Salita was criminally charged and convicted while Diaz herself was acquitted on reasonable doubt. Lerma further alleged, without denial, that after Ramirez another man, Manila policeman Jose Gochangco, became Diaz's paramour, resulting in adultery charges before the Fiscal of Manila, and submitted photographs of the two in intimate pose whose veracity was not disputed.

• Procedure Under Rule 61, Section 5: Petitioner maintained that the lower court disregarded the requirement to determine provisionally the pertinent facts, particularly those bearing on the probable outcome of the case, and merely relied on the bare allegations of the complaint in granting support pendente lite.
• Deprivation of Evidence: Petitioner argued that he was deprived of opportunity to present evidence in support of his defense of adultery against the application for support pendente lite.
• Adultery as Defense and Article 292: Petitioner maintained that adultery is a good defense to support and that Article 292 does not make support pendente lite mandatory during legal separation proceedings, otherwise an erring spouse could circumvent the defense by filing a groundless separation suit.
• Belated Enforcement and Mootness: Petitioner argued that respondent's failure to enforce for three years until December 5, 1973, followed by enforcement after new adultery charges and a custody move, and the January 19, 1974 payment order, would render the present petition moot unless enjoined, particularly while the adultery conviction was pending appeal.

• Immediate Executory Nature: Respondent countered that an order granting support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined.
• Functus Oficio Writ: Respondent argued that dismissal of the petition by the Court of Appeals rendered functus oficio the writ of preliminary injunction it had previously issued.
• Mandatory Support Under Article 292: Respondent maintained that under Article 292 of the New Civil Code, support from the conjugal partnership property during legal separation proceedings is mandatory even upon a showing that the wife is guilty of adultery.
• Reconsideration of CA Decision: Respondent moved to reconsider the October 8, 1970 decision on the ground that petitioner had not asked to be allowed to present evidence in the lower court.

• Procedural Compliance with Rule 61: Whether the lower court committed grave abuse of discretion in granting support pendente lite without provisionally determining pertinent facts, including probable outcome, and without allowing petitioner to present evidence on adultery.
• Adultery as Defense to Support Pendente Lite: Whether adultery is a good defense against respondent's claim for support pendente lite.
• Mandatory Application of Article 292: Whether Article 292 of the Civil Code makes it mandatory to grant support pendente lite to respondent during pendency of legal separation proceedings even if she is guilty of adultery.

• Procedural Compliance with Rule 61: Academic. The evidentiary issue was overtaken by the undisputed conviction for adultery, which satisfied the provisional showing of probable failure required by Section 5 of Rule 61.
• Adultery as Defense to Support Pendente Lite: Yes. Adultery remains a good defense to support pendente lite, as established in Quintana vs. Lerma and reiterated in subsequent cases.
• Mandatory Application of Article 292: No. Article 292 is not the source of the right to support and does not preclude loss of that right; it presupposes a prima facie viable action and cannot be invoked through a bad-faith suit by a guilty spouse.

• Procedural Compliance with Rule 61: The question whether petitioner should have been allowed to present evidence on adultery had become academic in light of supervening undisputed facts. The September 26, 1972 conviction, the premature birth on March 30, 1970 with use of an assumed name and falsified death certificate, and the undisputed second liaison and photographs supplied the provisional showing contemplated by Section 5 of Rule 61 without need for further reception of evidence at that stage.
• Adultery as Defense to Support Pendente Lite: Adultery was settled as a good defense in an action for support in Quintana vs. Lerma, reiterated in Sanchez vs. Zulueta and Mangoma vs. Macadaeg, et al., and recognized in Olayvar vs. Olayvar. That defense was not defeated merely because support pendente lite was sought from conjugal partnership property during a separation suit, since the distinction between personal support and support from conjugal property was immaterial where the substantive right itself had been lost.
• Mandatory Application of Article 292: Article 292 merely directs that support of spouses and children during legal separation or annulment proceedings shall be taken from conjugal partnership property; it is not itself the source of the legal right and does not preclude loss of such right. Inferentially it contemplates pendency of a court action with a prima facie showing that the action will prosper, consistent with the Rule 61 requirement to consider probable outcome, for a groundless filing alone does not set Article 292 in operation. Under Article 100 of the Civil Code, legal separation may be claimed only by the innocent spouse where there has been no condonation or consent, and where both are offenders neither may claim it; the conviction, though on appeal, provisionally foreshadowed failure of respondent's suit since she was not innocent. To allow support pendente lite on such a filing would permit circumvention of the adultery defense. Moreover, separate support presupposes justifiable cause to live separately, implicit in Article 104; a bad-faith petition by a spouse guilty of a ground for separation at the instance of the other is outside the intendment of the law. Under Articles 303 and 921, the obligation to give support ceases when the recipient has committed an act giving rise to disinheritance, including giving cause for legal separation, making loss of substantive support incompatible with support pendente lite. This appreciation was expressly limited to Rule 61 purposes and was not a prejudgment of the pending separation or criminal cases.

• Adultery as defense to support — Adultery is a good defense in an action by the wife against the husband for support. The defense was applied to defeat a claim for support pendente lite sought by a wife who had been convicted of adultery, notwithstanding pendency of a legal separation proceeding.
• Nature of Article 292 support during litigation — Article 292 of the Civil Code, providing that during proceedings for legal separation or annulment the spouses and children shall be supported from the conjugal partnership property, is not itself the source of the legal right to receive support but merely identifies the fund from which support shall be taken; it does not preclude loss of the right in cases where the claimant is disqualified. It was therefore held inapplicable to sustain support pendente lite for a spouse provisionally shown to be guilty.
• Probable outcome as requisite for support pendente lite — Under Section 5 of Rule 61, the court must determine provisionally the pertinent facts and render such order as equity and justice require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and other elucidating circumstances. The probable failure of a legal separation suit, provisionally shown by an adultery conviction though on appeal, negated entitlement to support pendente lite.
• Innocent spouse rule in legal separation — Under Article 100 of the Civil Code, legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage, and where both spouses are offenders neither may claim it. A spouse convicted of adultery was thus provisionally deemed unable to sustain a separation action as innocent spouse.
• Justifiable cause and loss of support — The right to separate support or maintenance, even from conjugal partnership property, presupposes justifiable cause to live separately, implicit in Article 104 entitling spouses to live separately after filing of the petition; a bad-faith petition by one guilty of a ground for separation cannot support such right. Under Article 303 the obligation to give support ceases when the recipient has committed an act giving rise to disinheritance, and under Article 921 giving cause for legal separation is a cause for disinheriting a spouse.

• "The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the questions involved. ..." — States the controlling procedural standard under Section 5 of Rule 61 for resolving applications for support pendente lite.
• "ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order." — Reproduces the provision relied upon by the Court of Appeals to sustain support, which was construed as merely designating the source of support rather than creating an indefeasible right.
• "If legal separation cannot be claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the strength of the decisions of this Court recognizing adultery as a good defense." — Articulates the ratio against allowing a groundless separation suit to circumvent the adultery defense to support.
• "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." — Defines the substantive precondition for separate maintenance applied to deny pendente lite support to the guilty spouse.

• Quintana vs. Lerma, 24 Phil. 285 — Controlling precedent holding in a wife's action for support based on written contract that adultery is a good defense; applied as foundation for denying support pendente lite.
• Sanchez vs. Zulueta, 68 Phil. 110 — Reiterated Quintana vs. Lerma that adultery defeats a support claim; cited to confirm settled doctrine.
• Mangoma vs. Macadaeg, et al., 90 Phil. 508 — Further reiteration of adultery as defense to support; cited to show continuity of doctrine.
• Olayvar vs. Olayvar, 98 Phil. 52 — Cited additionally as recognizing adultery as a defense in support actions.

• Section 5, Rule 61, Revised Rules of Court — Requires provisional determination of pertinent facts with regard to necessities, means, probable outcome and other circumstances; applied to hold that probable failure of the separation suit, shown by the adultery conviction, defeated support pendente lite.
• Article 292, New Civil Code — Provides support of spouses and children from conjugal partnership property during legal separation or annulment proceedings; construed as merely designating the fund and presupposing a prima facie viable action, not as mandating support for a guilty spouse.
• Article 100, Civil Code — Limits claim for legal separation to innocent spouse absent condonation or consent, and bars claim where both are offenders; applied to provisionally foreshadow failure of respondent's suit.
• Article 104, Civil Code — Entitles spouses to live separately after filing petition for legal separation; construed as implying that separate support requires justifiable cause, absent in a bad-faith petition by a guilty spouse.
• Article 303, Civil Code — Terminates obligation to give support when recipient commits act giving rise to disinheritance; applied to show incompatibility between loss of substantive support and claim for support pendente lite.
• Article 921, Civil Code — Lists giving cause for legal separation as cause for disinheriting a spouse; linked to Article 303 to establish loss of support right.

Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur. Esguerra, J., took no part.