GLICERIO MANGOMA, PETITIONER,VS. HON. HIGINIO MACADAEG, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH X, AND CANDELARIA BAUTISTA, RESPONDENTS.

This is a petition for certiorari with
preliminary injunction to declare null and void an order of the Court
of First Instance of Manila dated September 28, 1951, ordering
petitioner to give support pendente lite to his wife and daughter in
the amount of P750 a month beginning January 17, 1951 up to the
termination of the case of separation of property pending between them.

Respondent Candelaria Bautista filed an action against petitioner
seeking the separation of the property of the spouses and the
consequent dissolution and liquidation of their conjugal partnership.
Months thereafter, prior to the trial on the merits, respondent prayed
the court that pending the determination of the case, she and her
daughter Leticia be given support pendente lite in the aaoont
of P1,000 a month and that petitioner be ordered to act accordingly.
Her motion is based on the following grounds: On August 30, 1945, while
their marriage was still subsisting, petitioner contracted another
marriage, with one Luceria Bernardo; in January 1946, petitioner
abandoned respondent and two minor daughters and went to live with his
second wife; while the bigamy case against petitioner was under
investigation by the City Fiscal of Manila, petitioner refused to give
any support to respondent and her children, thus compelling her to
contract monetary obligations for their maintenance; petitioner and
respondent, through their joint effort and industry, acquired
considerable property which, added to the earnings of petitioner from
his various kinds of business, yields a net income of at least P5,000 a
month; petitioner owes them in arrears by way of support a total of
P6,000 from January 17, 1951.

Petitioner objected to the motion pendente lite on the
following grounds: Respondent abandoned the conjugal home to live with
an American soldier, a fact admitted by her when she testified in the
city fiscals office of Manila in the investigation of the charge of
bigamy filed by her against petitioner; respondent committed adultery
with said American soldier from October to December 1945, and lived
with him from January to August 1946; later in 1947, respondent also
lived with one Celestino Fernandez up to October 1949; having committed
adultery, respondent, therefore, is not entitled to support; their
child Leticia who is under the custody of respondent should be turned
over to petitioner to free her from the influence of her mother who 18
living under immoral circumstances; their other two children, Glicerio
Jr. and Mercedes, are at present under the custody of petitioner and
are properly taken care of and educated; petitioner has no other
occupation except that of a real estate broker and as such cannot earn
more than P200 a month, which is barely sufficient to support and
maintain the two children under his care; due to repeated civil and
criminal cases filed against him hy respondent, petitioner had to close
his tiles factory, thereby incurring a loss of P5,000, as well as his
machine shop, incurring losses amounting to P30,000; at present
petitioner is heavily indebted to several banks and because of the lis pendens annotated
on his certificate of title upon respondent’s request, he is placed in
a position where he could not pay his obligations due to his inability
to negotiate with said properties. Wherefore, petitioner prayed that
the motion for support pendente lite be denied.

On August 18, 1951, respondent judge authorized his deputy clerk to
receive the evidence on the motion for support pendente lite, and
accordingly several trials were held before said deputy clerk for that
purpose, but before petitioner has had a chance to present his
evidence on his special defenses, respondent Judge issued on September
28, 1951, an order granting the motion and ordering petitioner to give
support pendente lite to his wife and daughter Leticia In the
amount of P750 a month beginning January 15, 1951 up to the termination
of the case, and to pay the-accrued payments within five days from
notice. Hence this petition for , certiorari.

In the case of Sanchez vs. Zulueta, 68 Phil. 110, wherein” the Court a quo,
without acceding to the petition of the husband that he be given an
opportunity to adduce evidence in support of his defense, favorably
acted upon the petition for support pendente lite of the wife and
ordered the husband to pay his wife and child a monthly allowance of
P50 pendente lite, this Court, in revoking the order, which was sustained by the Court of Appeals, said:

“We are of the opinion that the Court of Appeals
erred in not allowing the defendant to present his evidence for the
purpose of determining whether It is sufficient prima facie to overcome
the application. Adultery on the part of the wife is a valid defense
against an action for support (Quintana vs. Lerma, 2k
Phil.285). 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 be the child of the defendant and, hence, would not be
entitled to support as such. But as this defense should be established,
and not merely alleged, it would be unavailing if proof thereof is not
permitted. It is not of course necessary to go fully into the merits of
the case, it being sufficient that the court ascertain the kind and
amount of evidence which it may deem sufficient to enable it to Justly
resolve the application, one way or the other, in view of the merely
provisional character of the resolution to be entered.” (Sanchez vs. Zulueta, 68 Phil. 112).

The facts of this case show that petitioner has not also been given
an opportunity to adduce evidence in support of the defenses he has set
up against the motion for support pendente lite. It appears
that the respondent judge commissioned his deputy clerk to receive
evidence the parties may desire to present on said motion, but that
after respondent had presented her evidence and before the deputy clerk
had been able to complete the hearing, respondent judge issued the
order subject of these proceedings without giving petitioner an
opportunity to present his evidence. It is true that several trials
were held before the deputy clerk of court, but there is nothing to
show that petitioner has resorted to dilatory tactics as to justify
that action on the motion be taken without receiving his evidence. The
affidavit submitted by counsel for petitioner, which stands
uncontradicted, shows that said counsel asked for postponement of the
hearing only once and that he failed to appear on the date set for the
continuation of the hearing due to a misunderstanding. At any rate, the
court is not persuaded from a consideration of the pleadings that there
has been a deliberate attempt on the part of the petitioner, or his
counsel, to delay the proceedings, and, therefore, before action is
taken on the matter, an opportunity should be given him to be heard,
considering the serious nature of his special defenses. In line with
the ruling of this Court in the Sanchez case, supra, there is
no other alternative than to remand this case to the lower court in
order that immediate steps may be taken relative to the reception of
the evidence of petitioner in support of his opposition.

Wherefore, the order appealed from dated September 28, 1951, is hereby set aside, without special pronouncement as to costs.

After this decision had become final, the preliminary injunction issued will be dissolved.

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Reyes, and Jugo, concur.