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2.Gandioco vs Penaranda

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  SECOND DIVISION G.R. No. 79284 November 27, 1987FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C. PEÑARANDA, a Pre! !#$ %& $e o' ()e Re$!o#a* +r!a* Co&r( o' !am! Or!e#(a*, -ra#) 18, Ca$a/a# e Oro C!(/, a# +ERESI+A S. GANDIONCO, respondents.  PADILLA, J.:  A special civil action for certiorari, with application for injunction, to annul (! the Order of the respondent ud#e, dated $ Dece%&er '), orderin# petitioner to pa* support  pendente lite  to private respondent (his wife! and their child, and (+! the Order of the sa%e respondent ud#e, dated   Au#ust '-, den*in# petitioners %otion to suspend hearin#s in the action for le#al separation filed a#ainst hi% &* private respondent as well as his %otion to inhi&it respondent ud#e fro% further hearin# and tr*in# the case.On +' /a* '), private respondent, the le#al wife of the petitioner, filed with the 0e#ional 1rial Court of /isa%is Oriental, $th udicial District, 2ranch , in Ca#a*an de Oro Cit*, presided over &* respondent ud#e, a co%plaint a#ainst petitioner for le#al separation, on the #round of concu&ina#e, with a petition for support and pa*%ent of da%a#es. 1his case was doc3eted as Civil Case No. $)4). On 4 Octo&er '), private respondent also filed with the /unicipal 1rial Court, 5eneral Santos Cit*, a co%plaint a#ainst petitioner for concu&ina#e, which was doc3eted on +4 Octo&er ') as Cri%inal Case No. 64-. On 6 Nove%&er '), application for the provisional re%ed* of support  pendente lite,  pendin# a decision in the action for le#al separation, was filed &* private respondent in the civil case for le#al separation. 1he respondent jud#e, as alread* stated, on $ Dece%&er '), ordered 1he pa*%ent of support  pendente lite. In this recourse, petitioner contends that the civil action for le#al separation and the incidents conse7uent thereto, such as, application for support  pendente lite,  should &e suspended in view of the cri%inal case for concu&ina#e filed a#ainst hi% the private respondent. In support of his  contention, petitioner cites Art. III. Sec. 4 of the ' 0ules on Cri%inal 8rocedure, which states9SEC. 4. Other Civil action arising from offenses. — :henever the offended part* shall have instituted the civil action to enforce the civil lia&ilit* arisin# fro% the offense. as conte%plated in the first Section  hereof, the followin# rules shall &e o&served9(a! After a cri%inal action has &een co%%enced the pendin# civil action arisin# fro% the sa%e offense shall &e suspended, inwhatever sta#e it %a* &e found, until final jud#%ent in the cri%inal proceedin# has &een rendered. . . .1he civil action for le#al separation, #rounded as it is on concu&ina#e, it is petitioners position that such civil action arises fro%, or is ine;trica&l* tied to the cri%inal action for concu&ina#e, so that all proceedin#s related to le#al separation will have to &e suspended to await conviction or ac7uittal for concu&ina#e in the cri%inal case. Authorit* for this position is this Courts decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1 8etitioners contention is not correct.In Jerusalem,  the Courts state%ent to the effect that suspension of an action for le#al separation would &e proper if an alle#ation of concu&ina#e is %ade therein, relied solel* on Sec.  of 0ule $- of the then  provisions of the 0ules of Court on cri%inal procedure, to wit9Sec. . Rules governing civil actions arising from offenses.- E;cept as otherwise provided &* law, the followin# rules shall he o&served9(a! :hen a cri%inal action is instituted, the civil action for recover* of civil lia&ilit* arisin# fro% the offense char#ed is i%pliedl* instituted with the cri%inal action, unless the offended part* e;pressl* waives the civil action or reserves his ri#ht to institute it separatel*<(&! Cri%inal and civil actions arisin# fro% the sa%e offense %a*&e instituted separatel*, &ut after the cri%inal action has &een  co%%enced the civil action can not &e instituted until final  jud#%ent has &een rendered in the cri%inal action<(c!  After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the sameshall be suspended in hatever stage it ma! be found until final   udgment in the criminal proceeding has been rendered   ... (E%phasis supplied!1he provisions last 7uoted did not clearl* state, as the ' 0ules do, that the civil action to &e suspended, with or upon the filin# of a cri%inal action, is one which is =to enforce the civil lia&ilit* arisin# fro% the offense=. In other words, in view of the a%end%ent under the ' 0ules on Cri%inal 8rocedure, a civil action for le#al separation, &ased on concu&ina#e, %a* proceed ahead of, or si%ultaneousl* with, a cri%inal action for concu&ina#e, &ecause said civil action is not   one =to enforce the civil lia&ilit* arisin# fro% the offense= even if &oth the civil and cri%inal actions arise fro% or are related to the sa%e offense. Such civil action is one intended to o&tain the ri#ht to live separatel*, with the le#al conse7uences thereof, such as, the dissolution of the conju#al partnership of #ains, custod* of offsprin#s, support, and dis7ualification fro% inheritin# fro% the innocent spouse, a%on# others. As correctl* pointed out &* the respondent ud#e in his Order dated  Au#ust '-91he unreported case of E0>SA?E/ vs. @on. 0o&erto ur&ano, ud#e of CBI of Anti7ue, et al., ?'4, April +6, ''($ 8hil. +--! is not controllin#. It applied para#raph C of Sec. , of then 0ule $- of the 0ules of Court, which reads9 After a cri%inal action has &een co%%enced, no civil action arising from the same offense can be  prosecuted   and the sa%e shall &e suspended, in whatever sta#e it %a* &e found, until final jud#%ent in the cri%inal proceedin# has &een rendered. (E%phasis supplied!1he #overnin# rule is now Sec. 4, 0ule , ' 0ules on Cri%inal 8rocedure which refers to =civil actions to enforce the civil lia&ilit* arisin# fro% the offense= as conte%plated in the first para#raph of Section  of 0ule which is a civil action =for recover* of civil lia&ilit* arisin# fro% the  offense char#ed.= Sec. , 0ule , ('! is specific that it refers to civil action for the recover* of civil lia&ilit* arisin# fro% the offense char#ed. :hereas, the old Sec.  (c!, 0ule $- si%pl* referred to =Civil action arisin#fro% the offense.= As earlier noted this action for le#al separation is not to recover civil lia&ilit*,in the %ain, &ut is ai%ed at the conju#al ri#hts of the spouses and their relations to each other, within the conte%plation of Articles - to $, of the Civil Code.=  2 8etitioner also ar#ues that his conviction for concu&ina#e will have to &e first secured &efore the action for le#al separation can prosper or succeed, as the &asis of the action for le#al separation is his alle#ed offense of concu&ina#e.8etitioners assu%ption is erroneous. A decree of le#al separation, on the #round of concu&ina#e, %a* &e issuedupon proof &* preponderance of evidence in the action for le#al separation. 0  No cri%inal proceedin# or conviction is necessar*. 1o this end,the doctrine in  #rancisco vs. $a!ao   4  has &een %odified, as that case was decided under Act. No. +-$, when a&solute divorce was then allowed and had for its #rounds the sa%e #rounds for le#al separation under the New Civil Code, with the re7uire%ent, under such for%er law, that the #uilt of defendant spouses had to &e esta&lished &* final jud#%ent in a cri%inal action. 1hat re7uire%ent has not &een reproduced or adopted &* the fra%ers of the present Civil Code, and the o%ission has &een unifor%l* accepted as a %odification of the strin#ent rule in #rancisco v. $a!ao.   8etitioners atte%pt to resist pa*%ent of support  pendente lite  to his wife %ust also fail, as we find no proof of #rave a&use of discretion on the part of the respondent ud#e in orderin# the sa%e. Support  pendente lite, as a re%ed*, can &e availed of in an action for le#al separation, and #ranted at the discretion of the jud#e.   If petitioner finds the a%ount of support  pendente lite  ordered as too onerous, he can alwa*s file a %otion to %odif* or reduce the sa%e. 7 8etitioner lastl* see3s to have the respondent ud#e dis7ualified fro% hearin# the case, as the #rant of support  pendente lite  and the denial of the %otion to suspend hearin#s in the case, are ta3en &* the petitioner as a
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