CONSUELO VELAYO, PLAINTIFF-APPELLANT, VS. RODOLFO VELAYO, DEFENDANT-APPELLEE.

Plaintiff Consuelo Velayo filed on July 11, 1950 in the Court of First Instance
of Manila, a suit against her husband Rodolfo Velayo,
for separation of conjugal properties and support for herself and their three
minor children.  On February 17, 1953, finding that defendant had
abandoned his wife for at least a year, the court al­lowed the petition for
separation of properties and or­dered the parties to submit an agreement to
that effect.

The parties then submitted a compromise agreement covering
separation of properties, support and custody of the children.  And on May 30, 1953, the Court of First Instance rendered
judgment, approving it.  Substantial­ly,
its terms were as follows:  (1) Defendant
shall pay his wife as her share of the conjugal properties a total of
P20,000.00, i.e., P5,000.00 payable upon approval of the agreement and P15,000.00 payable within two years
from said date or up to May 30, 1955; (2)
until said ba­lance of P15,000.00 is
fully paid, defendant shall give to plaintiff P200.00 monthly for her support
and P300.00 monthly for the support of the children; (3) after said balance is
paid in full, defendant shall give to his wife P150.00 monthly as his share for
the support of the children, plaintiff agreeing to provide the other half of P150.00 for a total of P300.00; and (4) plaintiff shall remain in custody of
the children but defendant may visit and/or take them out at reasonable hours
of any day of the week.

Subsequently, pursuant to
Republic Act 1401, the case was transferred to the Juvenile and Domestic Rela­tions
Court.  Acting upon plaintiff’s motion, said
Court, on January 8, 1958, ordered defendant to pay all the sums due
the plaintiff by virtue of the decision of May 30, 1953, estimated at about P28,000.00.  Defendant however on February
7, 1958 appealed
from said order to the Court of Appeals, staying execution in the meanwhile by
filing a supersedeas bond in the amount of
P25,000.00.

During the pendency of said appeal, on July 2, 1958, plaintiff and defendant signed another agreement, provid­ing, thus:

“1.  CONSUELO VELAYO has condoned and par­doned, as
she hereby condones and pardons all acts of concubinage
committed and being com­mitted by RODOLFO VELAYO;

“2.  CONSUELO VELAYO hereby waives any and all
claims for support she has or may have against RODOLFO VELAYO covered by the
case between the two of them which originated in the Court of Domestic
Relations and now pend­ing appeal in the
Court of Appeals;

“3.  CONSUELO VELAYO states that she is not going to claim any further support now and in
the future from RODOLFO VELAYO;

“4.  RODOLFO VELAYO has and will conti­nue to have
the custody of their children ROBERTO, RODOLFO and ERLINDA, all surnamed VE­LAYO.  For the protection of these children, the
business enterprises of RODOLFO VELAYO will be incorporated and these three
children will be given one-third (1/3) share in said business enterprise.  RODOLFO VELAYO will also see to it that
one-third (1/3) of all his properties will be given to the children afore­said;
and

“5.  The parties hereto hereby promise to execute
such other document and documents as are necessary to fully effectuate the con­ditions
of this agreement.”

And
on the strength of this new agreement, the Court of Appeals issued a resolution
on August 29, 1958,
dismiss­ing the case, without costs.

Plaintiff appealed from
said resolution of dismissal to this Court, in L-14541, Consuelo Velayo v. Court of Appeals.  And deciding said case on March
30, 1960, this Court
held that the agreement of the parties, dated July 2, 1958, was valid and effective, except as to the
por­tions regarding the pardon and condonation of all
acts of concubinage of defendant and the
waiver of future sup­port, which portions were held null and void.  Constru­ing the new agreement in relation to
the judgment of the trial court dated May
30, 1953, We ruled that said agree­ment did not cover plaintiff’s
share in the conjugal pro­perties.  And
under the judgment P15,000.00 remained
pay­able as such by defendant to plaintiff. 
Accordingly, finding that plaintiff can still ask for execution in so
far as her right to share in the conjugal properties is concerned, this Court
modified the resolution of dismiss­al of the Court of Appeals, in the sense
that defendant’s appeal to that Court, not the case itself, is considered dismissed.

The records of the case were then remanded to the Juvenile and
Domestic Relations Court, which received them on September 9, 1960.

On November 28, 1960,
defendant moved to cancel the supersedeas bond posted
to stay execution pending appeal. 
Plaintiff opposed it on January 7, 1961.  Said motion
was denied by the court a quo
on March 2, 1962.

Subsequently, on November
20, 1962, defendant again filed a motion for cancellation of the supersedeas bond.  On
December 8, 1962, plaintiff again opposed the same.  Acting thereon only on June 22, 1964, because
there were pending disputes between the spouses before the Manila City Fiscal’s office, the court a quo ordered defendant’s supersedeas bond
cancelled, on the ground that by
then the judgment in the case could no longer be executed by motion, stating
that the five-year period for execution had lapsed.  Said the lower court:

“The Court counts the 5-year period with­in which the judgment
can be enforced by motion as beginning May
30, 1955, by
which date defendant was obligated to make full payment of the P20,000.00 to
plaintiff.  The running of the period was
suspended on January 8, 1958, or about 2 years
and 7 months thereafter, be­cause
of defendant’s appeal from the ‘order of execution’ of that date.  The period began to run again from September 9, 1960 when
this Court received official advice as to the final out­come of defendant’s
appeal.  Since then, plain­tiff has not
taken any steps for the enforce­ment of the judgment in her favor despite the
lapse of some 3 years and 9 months.  It will thus be seen that on computations
most favor­able to plaintiff (2 Moran, Rules of Court, 1963 Ed., p. 250-251), the 5-year period for the enforcement of a
judgment can no longer be enforced in this case, it should stand to reason that
the supersedeas bond can no longer be moved against in this case.”

From this order, plaintiff has appealed directly to us.  The purely legal question raised is whether
or not the supersedeas bond still remains answerable
for any­thing under the judgment in the case.

As stated, by the terms of the CFI judgment dated May 30,
1953, defendant
was obliged to pay to plaintiff
the amount of P200.00 monthly for her support and P300.00 monthly for the
support of their children, until such time as defendant shall have fully paid
the P15,000.00 balance corresponding to plaintiff’s share in the conjugal
properties.  It is not disputed that, until now, the P15,000.00 has not been
paid.

Now by virtue of
the agreement of the parties dated July 2, 1958, submitted to the Court of Appeals, all items of support due
and recoverable under the said judgment, were waived.  As of that date, therefore, i.e., July 2, 1958, plaintiff was not entitled to
execution upon the judgment as far as support that was already due for pay­ment
was concerned.  Said new compromise
agreement, how­ever, could not possibly affect future support or the
right thereto under the same judgment, since future support or the right
thereto cannot be waived nor compro­mised (Arts. 301, 2035, Civil Code).  Such
was this Court’s ruling in Consuelo Velayo v.
Court of Appeals  (L-14541),
supra.  And altho
We there pointed out that the portion of the judgment regarding which plaintiff
could at that time ask for execution was that providing for her
P15,000.00 share in the conjugal properties, We were speaking as of the time
that the parties entered into the new agreement, dated July 2, 1958. 
All items for support prior to that date were validly waived; all
items for support after that date – i.e., future support altho
not waived, were not yet due, so that execution could not then be had thereon.

As far as the period subsequent to the new agree­ment, or after
July 2, 1958, is concerned, therefore, the judgment
for support remained, with respect to the P200.00
payable monthly for the support of the wife.  As regards the support of the children,
pursuant to the new agreement, defendant ceded one-third of his business and of
all his properties to them, for their protection.*
It is moreover provided therein that “Rodolfo Velayo
has and will continue to have the custody of their children Roberto, Rodolfo
and Erlinda” thereby undertaking their support.**

Clearly therefore defendant still remained liable, under the
judgment, for support of his wife at P200.00 monthly, as far as months subsequent
to the new agreement of July 2, 1958 are concerned.  For being then future
support, the same could not be waived thereunder.

Now a judgment for support does not become dormant; the five-year
period for execution (Sec. 6, Rule
39, Rules of Court) does not apply
thereto; rather, the sup­port under the judgment becomes due from time to time,
as provided, and is enforceable by simple motion at any time, except as to
installments not recovered within the statute of limitations (Florendo v. Organo, 90 Phil. 483).

The supersedeas bond expressly
undertook:  “to secure the
fulfillment and payment of the judgment so appealed together with the costs, in
case the same should be so affirmed, in whole or in part, or in case the
judgment should become effective on account of appellant’s having abandoned or
withdrawn the appeal, or in case it should be dismissed or declared to be
improperly allowed.” (As quoted by court a quo, Record on Appeal, pp. 53-54)
It therefore should not be cancelled since it still is ans­werable for
amounts due under the judgment, as to which, execution can still be had.

WHEREFORE, the appealed order cancelling
defendant’s supersedeas bond is hereby reversed and
set aside, with­out costs.

SO ORDERED.

Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.

Concepcion, C.J., and Dizon, J., on official leave.

* L-145410, supra.

** See also Article 299, NCC.