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EN BANC

G.R. No. L-17315 July 31, 1965

OLYMPIA BALTAZAR, in behalf of her minor son, ARMENIO SERFINO, Plaintiffs-Appellants, vs. SERGIO SERFINO defendant-appellee.

Epifanio R. Tupas for plaintiffs-appellants.
Serafin M. Diego for defendant-appellee.

MAKALINTAL, J.:chanrobles virtual law library

Olympia Baltazar, in behalf of her minor son, Armenio Serfino, appeals from the decision of the Court of First Instance of Negros Occidental ordering Sergio Serfino to pay said minor the sum of P15.00 monthly as support from July 1960, when the said decision was rendered.chanroblesvirtualawlibrarychanrobles virtual law library

Armenio was born on December 19, 1943, the son of Olympia Baltazar, a widow, and Sergio Serfino, a married man. Appellants now allege (1) that the amount awarded should have been P50.00; (2) that it should be made payable from the time Armenia was born, except for the period beginning May 1957 to April 1959, during which period he was living with his father; and (3) that appellee should have been ordered to pay attorney's fees in the sum of P1,000.00.chanroblesvirtualawlibrarychanrobles virtual law library

The amount of support, according to Article 296 of the Civil Code, shall be in proportion to the resources or means of the giver and to the needs of the recipient. The lower court found that appellee was earning P365.00 yearly from his rice mill and P720.00 from his ten-hectare parcel of land, the yearly produce of which was 120 cavans of palay, valued at P6.00 per cavan. The court thus concluded that his average annual income was P1,085.00 and used this as basis in computing the amount of support due to Armenio taking into consideration that appellee was also supporting a wife and three legitimate children. In his answer, however, appellee admits that he has another source of income namely, a tailoring shop, which he says is not very profitable, although the evidence shows that in 1958 he realized P573.50 in gross receipts therefrom. It further appears that appellee has a house and lot in Kabankalan, Negros Occidental, and consequently does not have to pay rent for his family's residence.chanroblesvirtualawlibrarychanrobles virtual law library

Upon the foregoing facts we believe that the amount of P15.00 awarded by the lower court should be increased to P25.00. As to when payment thereof should begin, the law says that the obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date it is extrajudicially demanded (Article 298, Civil Code). In this case, payment should begin June 1959, for it was then that appellants made the extrajudicial demand on appellee.chanroblesvirtualawlibrarychanrobles virtual law library

Where the duty to support is admitted, but in spite of demands the duty is not complied with and the person to be supported has to resort to the court for the enforcement of his right, then the person obliged to give support must pay reasonable attorney's fees (Mercado v. Ostrand, 37 Phil. 179; Fanlo de Peyer v. Peyer, 77 Phil. 366). In actions for legal support, even in the absence of stipulation, attorney's fees are recoverable (par. 6, Article 2208, Civil Code). In our opinion the sum of P300.00 is a reasonable amount for this purpose.chanroblesvirtualawlibrarychanrobles virtual law library

The judgment appealed from is modified, and defendant-appellee is sentenced to pay Armenio Serfino the the sum of P25.00 monthly from June 1959 and the sum of P300.00 is attorney's fees, with costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Paredes, Dizon, Regala, Bengzon, J.P., and Zaldivar, JJ., concur.
Concepcion, J., took no part.
Barrera, J., is on leave.