G.R. No. L-8088 November 29, 1955
Rosita Veloso de Olayvar, plaintiff-appellant, vs. Aristoteles Olayvar, defendant-appellee.

FACTS

Plaintiff Rosita Veloso de Olayvar instituted an action in the Court of First Instance of Leyte praying for support for herself and her four children, coupled with a petition for support pendente lite. Defendant Aristoteles Olayvar, in his answer, set up as a special defense that a case for legal separation on the ground of adultery was already pending between the same parties in the Court of First Instance of Cebu (Civil Case No. R-3196), wherein the right of the plaintiff to demand support was incidentally involved. This legal separation case was instituted earlier than the support case. Initially, the Leyte court deemed it proper to hold the support case in abeyance, giving priority to the Cebu case to ascertain the parties’ rights regarding support. Later, the court modified this ruling, considering that the legal separation case might take a long time, and thus the matter of support should be given preferential consideration. The defendant moved for reconsideration and, upon failing, filed a motion to dismiss the support case, invoking Rule 8, section 1(d) of the Rules of Court, which allows dismissal when “there is another action pending between the same parties for the same cause.” On March 24, 1954, the court dismissed the support case. Plaintiff appealed this order.

ISSUE

Whether the trial court correctly dismissed the action for support on the ground of litis pendentia, or that there is another action pending between the same parties for the same cause.

RULING

Yes, the trial court correctly dismissed the action. For an action to be dismissed on the ground of litis pendentia under Rule 8, section 1(d), three requisites must concur: (1) identity of parties, or at least such as representing the same interests in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res adjudicata in the other. All these requisites concur in the two cases. The support action is predicated on the defendant’s infidelity and neglect of marital duties. The legal separation case asserts adultery on the part of the plaintiff, which is a valid defense against an action for support. Under the New Civil Code, the obligation to give support ceases when the recipient has committed an act giving rise to disinheritance, and adultery is a sufficient cause for legal separation, which in turn is a cause for disinheritance. Furthermore, in the legal separation case, the wife, in her answer, repudiated the charge of adultery and demanded maintenance and support for herself and her children. Thus, the two cases raise practically the same issues, and prosecuting them separately would amount to duplicity of action. Since the legal separation case was instituted earlier, it is fair that the later support case be dismissed. The order of dismissal is affirmed.