ROSITA SUELO SALAZAR, PLAINTIFF AND APPELLEE, VS. IGNACIO SALAZAR, DEFENDANT AND APPELLANT.

This is an appeal from an order of the Court of First Instance of
Iloilo which directs the defendant to give to the minor children,
Reynaldo Carissimo and Maria Sylvia, a monthly allowance of P200 by way
of alimony pendente lite from November 6, 1950 until the
principal case has been finally decided.

This appeal was originally taken to the Court of Appeals but
was later certified to this Court because it only involves questions of
law.

On November 2, 1950, Rosita Suelo Salazar, plaintiff, filed an
action in the Court of First Instance of Iloilo praying that Ignacio
Salazar, defendant, be ordered to pay her a monthly allowance of P300 as
alimony pendente lite, and that, after trial, said monthly
allowance be made permanent.

Plaintiff avers that she is the lawful wife of defendant, they
having been married on July 24, 1947 before the Municipal Court of
Manila, and, later, they repeated the ceremony before the parish priest
of Espiritu Santo Catholic Church on July 28, 1947; that out of the
marital relation, two children were born, namely, Reynaldo Carissimo, 2
years and 5 months of age and Maria Sylvia, 11 months of age; that on
August 9, 1950, defendant abandoned the conjugal home and refused to
give support and maintenance to plaintiff and the children; that
defendant is receiving a monthly salary of P600 from the Negros
Navigation Company, Iloilo City, and another monthly salary of P550 from
the Southern Lines Inc., also of Iloilo City, while plaintiff is
without any source of income. Copies of the marriage certificates were
attached to the complaint.

Defendant, in his answer, admitted the celebration of the
marriage alleged in the complaint, but averred that they were sham and
fictitious and were merely celebrated for reasons of convenience and to
avoid scandal, the plaintiff and defendant being at the time already
legally married, the plaintiff to one Ramon Perez and defendant to Maria
Olea Salazar, and therefore, said marriages are null and void and of no
legal effect. Defendant also admitted having had illicit relations
with the plaintiff and that out of said illicit relations, the children
mentioned in the complaint were born. Defendant claims that he had an
arrangement with plaintiff to end their illicit relations and place the
children under his custody but that plaintiff ignored this arrangement.
Defendant further claims that he is still willing and ready to have the
two children under his custody and to support them in his home.

On December 6, 1950, plaintiff filed an ex parte motion
praying that her petition for alimony pendente lite be set for
hearing, and accordingly it was set for hearing on December 9, 1950. On
the latter date, the motion was argued orally by counsel of both
parties, who supplemented their oral arguments with written memoranda.
Thereafter, on January 26, 1951, the court issued an order awarding the
two minor children a monthly allowance of P200 as stated in the early
part of this decision.

His motion to set aside the order having been denied, defendant
took steps to take the case on appeal to this Court. The case however,
through inadvertence, was forwarded to the Court of Appeals. In due
time, defendant paid the docketing fees and the cost of printing the
record on appeal which amounted to P174.75, and said record on appeal
was duly printed in accordance with the rules. Thereafter, or on
December 28, 1951, appellee filed a motion to dismiss the appeal on the
ground that the order appealed from is not appealable because it is
merely interlocutory in nature. On January 7, 1952, appellant submitted
his written opposition to said motion. The case was later certified to
this Court on the ground that it was inadvertently forwarded to the
Court of Appeals and it merely involves a question of law, but no action
has been taken on the motion to dismiss.

The motion to dismiss filed by appellee during the pendency of
this appeal on the ground that the order appealed from is not appealable
because it is merely interlocutory, cannot be entertained. While an
order denying or granting alimony pendente lite is interlocutory
and consequently non-appealable (Moran, Comments on the Rules of Court,
Vol. II, 1952 ed., page 120), however, if appeal is taken therefrom, and
no timely objection is interposed thereto, the objection is deemed
waived. Thus, when the objection is founded on the ground that the
judgment appealed from is interlocutory, but the appellee, before making
such objection, has allowed the record on appeal to be approved and
printed, and has allowed the appellant to print his brief, such
objection is too late and is deemed waived (Slade-Perkins v.
Perkings, 57 Phil. 223, 225; Luenvo & Martinez v. Herrero, 17
Phil. 29; Moran, Comments on the Rules of Court, Vol. I, 1952 ed., p.
987). The motion to dismiss should therefore be denied.

In his first assignment of error, appellant questions the
procedure followed by the court a quo in the determination of the
alimony pendente lite. He claims that the court did not follow
the procedure prescribed in Section 5, Rule 63, which, according to him,
enjoins the court to determine provisionally the pertinent facts of the
case, having due regard to the necessities of the applicant, the means
of the adverse party, and such other circumstances as may aid in the
proper eludication of the question involved.

We find that the court has substantially complied with the
prescribed rule on the matter. The rule requires that the court shall
determine provisionally the pertinent facts in the same manner as is
provided in connection with motions (Section 4). This means that to
determine the pertinent facts there is no need of receiving oral
testimony. It is enough that those facts be established by affidavits
or other documentary evidence appearing in the record. In the instant
case, the court has relied on the main allegations of the complaint
which is verified and supported by documentary evidence. On the other
hand, the main facts were not disputed especially those which refer to
the illicit relations between plaintiff and defendant and the monthly
earnings of the latter. Moreover, the court set the incident for
hearing and the parties, as well as their counsel, were given enough
opportunity to be heard.

But there is one reason which weakens the claim that the lower
court did not weigh the defense that the marriages which plaintiff
alleges to have been celebrated between her and the defendant were but
sham and fictitious and were celebrated merely for reasons of
convenience. We refer to the fact that the alimony pendente lite
was granted by the court not to the plaintiff but to the two children
born out of their illicit relations. The right of these children to
support exists regardless of marriage under the present law. These
children are entitled not only to support but also to inherit. (Art.
287, New Civil Code).

As regards the contention that the court fixed the monthly
allowance of P200 without considering the necessities of the applicant,
or the means of the adverse party, as required by the rules, the same is
likewise untenable, for it appears from the complaint, and this is not
disputed, that appellant has a monthly income of P1,150. This is a
sufficient basis in determining the amount of alimony pendente lite
until the contrary is shown when the case is decided on the merits.

Wherefore, the order appealed from is affirmed, without costs.

Paras, C. J., Feria, Pablo, Bengzon, Tuason, Montemayor,
Jugo, and Labrador, JJ., concur.