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[ GR No. L-8753, Jul 24, 1956 ]



99 Phil. 600

[ G.R. No. L-8753, July 24, 1956 ]




This is a petition for certiorari and mandamus praying that respondent  Melchor  Beronilla  be enjoined to pay petitioner the pension pendente lite in arrears from March to December 1953  and  from July,  1954  to the present both inclusive,  in the total amount  of P1,800 and that, should he fail to  do  so, his arrest and  confinement be ordered until he complies with the orders of the court relative to the payment of said pension pendente lite.

On  March 9,  1953, petitioner filed a complaint for legal separation and support against Melchor Beronilla in  the Court  of First Instance  of  Pangasinan (civil case No. 12495),  and on March 11, 1953,  she filed an  application for support pendente lite praying that her husband be ordered to  pass her a  pension of F250 a month  during  the pendency of the main case. Her husband, to be hereafter mentioned as respondent, failed to file a responsive pleading as to the main case and  so was declared  in  default, and not  having appeared on  the  date  of  hearing of  the motion for support pendente  lite, the court proceeded to receive the  evidence of petitioner through its clerk  of court, after  which the court rendered judgment ordering respondent to pay petitioner  a monthly pension of P100 pendente lite from March 9, 1953.

Inasmuch as  respondent has failed to pay petitioner  the pension pendente lite as ordered by  the court, the  latter on January  20, 1954 moved that respondent be cited  to show cause why he should not be punished  for contempt for such failure,  and on February 23, 1954,  respondent filed a written manifestation wherein he stated that, while he was  employed as a bookkeeper by the Magdalena Estate, Inc., with a salary  of F350 a month, the same was inadequate and insufficient to maintain him and the three minor children that were under his custody  for which reason he prayed that the pension in arrears be condoned and he  be allowed to start paying the pension beginning April 1, 1954. The  court, after due hearing, issued  an order on March 26, 1954  condoning the pension in arrears and ordering  respondent to pay  the  pension beginning January 1, 1954. This concession notwithstanding, respondent again failed to pay any pension to petitioner  and so sometime in June, 1954 his arrest was ordered and it was only then that he paid the pension due  corresponding to the period of  January to June, 1954.  Months passed  by and respondent failed once more to pay the required' pension, and so on September 4, 1954 petitioner was prompted to file another motion for contempt, but respondent in turn moved for  the reduction of the amount of support alleging financial inability to pay in view of the meager salary he was receiving  and, notwithstanding the  opposition of petitioner, the court reduced the pension from P100 to P75 a month effective January  1, 1955 provided that respondent  pay first the  pension  in arrears from July  to December,  1954.  Petitioner now comes  before this court disputing the condonation made  by  the  respondent court of the  pension in arrears from March to December, 1953 and the  reduction of the monthly pension of P100 to P75 on the ground that the  same were made contrary to law and praying that respondent be ordered to pay the pensions due as originally ordered by respondent court.

It appears that when respondent failed to comply with the order of respondent court entered  on November  17, 1953 ordering him to pay to plaintiff  a pension of  P100 a month, he was cited  for contempt to explain the reason of his failure  and, in answer, he filed a  written manifestation praying that the  pension in  arears be condoned alleging as reason the inadequacy of  his salary as an employee of the Magdalena Estate, Inc. and that, considering the claim  meritorious, the  respondent  court granted  the condonation and  ordered  that the pension be paid beginning  January 1,  1954 (Annex  F).   This was on  March 26, 1954.  No opposition  to, nor motion  for reconsideration of this order was filed by petitioner. Instead  she moved for the arrest of respondent sometime in  June, 1954  so  that he may be  proceeded with  for contempt in view,  of his failure to comply with the  aforesaid order of March 26, 1954.   And it was only  after his arrest and confinement that respondent came across  and paid  the pension corresponding to  the period  of January to  June, 1954.

While  it is true that the order of  the  court providing for the payment of pension in arrears which has become final can no longer be  modified and the pension condoned without the consent of the pensioner even if there are circumstances that may justify such condonation, however, said pension in arrears may be waived or renounced by the pensioner if he deems  it wise and proper to do  so. This  is the situation  obtaining  in this  particular  case. Respondent pleaded for the  condonation of the pension in arrears and, after proper hearing, the court  deemed it wise to accede to the  condonation considering the financial situation of respondent and petitioner did not object on time  to such condonation and instead prayed for  an immediate  compliance with  order of the court  modifying the previous order.  This  is a substantial compliance with Article 301 of the new Civil Code which  provides that "support in arrears may  be compensated and renounced, and the right to demand the same may be transmitted by onerous or gratuitous title." In the circumstances,  we hold that  petitioner cannot now  be  heard to  complain after  having acquiesced with her silence  and subsequent behavior in the condonation made by the respondent court.

Neither is there merit to the contention that the  respondent court committed an error in reducing the monthly pension from F100 to P75 after giving the parties an opportunity  to be heard relative to the financial situation of respondent, for such action  is  authorized by Article 297 of the same Code which provides that support may "be reduced or increased proportionately, according to the reduction or increase of the needs of the recipient and the resources of the pension obliged to furnish the same", provided that  the reduction be not made retroactive as to affect a vested interest of the recipient or pensioner.  The respondent  court  strictly  adhered to this provision as shown in its  order of  February  18f 1955 (Annex 6 of Answer).

With regard to the petition that respondent be punished  for  contempt for his  obstinate refusal to  obey  the order of the court relative to the pension pendente  lite, we find  that  this matter  has  already been the subject of a compromise as shown in the order of Judge Jesus P. Morfe entered  on July 12,  1955,  copy of  which  was submitted to  this court in connection with the supplemental  answer filed by respondent after this  case  was set for hearing on August 10,  1955.  This petition has therefore become moot.

Wherefore,  petition  is denied, without  pronouncement as to costs.

Paras, C.  J., Bengzon, Padilla, Montemayor,  Reyes, A., Labrador, Concepcion, Reyes, J.  B. L., and Endenda, JJ., concur.