G.R. No. 79284 November 27, 1987 FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C.

PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents. PADILLA, J.: A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case. On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The payment of support pendente lite. In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states: SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted the civil action to enforce the civil liability arising from the offense. as contemplated in the first Section 1 hereof, the following rules shall be observed: (a) After a criminal action has been commenced the pending civil action arising from the same offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . . The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1 Petitioner's contention is not correct. In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit: Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the following rules shall he observed: (a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the criminal action; (c) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended in whatever stage it may be found until final judgment in the criminal proceeding has been rendered ... (Emphasis supplied) The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August 1987: The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads: After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. (Emphasis supplied) The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense." As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code." 2 Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage. Petitioner's assumption is erroneous. A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a criminal action. That requirement

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has not been reproduced or adopted by the framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5 Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7 Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of support pendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent. Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken. WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner. SO ORDERED. G.R. No. L-19565 January 30, 1968 ESTRELLA DE LA CRUZ, plaintiff-appellee, vs. SEVERINO DE LA CRUZ, defendant-appellant. CASTRO, J.: The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had not only abandoned her but as well was mismanaging their conjugal partnership properties, and praying for (1) separation of property, (2) monthly support of P2,500 during the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs. The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000. On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case to us, "it appearing that the total value of the conjugal assets is over P500,000". The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49. They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the year 1957. As of December 31, 1959, the total assets of the various enterprises of the conjugal partnership were valued at P1,021,407.68, not including those of the Top Service Inc., of which firm the defendant has been the president since its organization in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden

Acres Subdivision and the Green Valley Subdivision in Las Piñas, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust Company. The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City. The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a quo, namely, 1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the defendant to the conjugal abode to see his wife was on June 15, 1955; 2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the defendant are living as husband and wife; 3. In finding that since 1951 the relations between the plaintiff and the defendant were far from cordial, and that it was from 1948 that the former has been receiving an allowance from the latter; 4. In finding that the defendant has abandoned the plaintiff; 5. In finding that the defendant since 1956 has not discussed with his wife the business activities of the partnership, and that this silence constituted "abuse of administration of the conjugal partnerships"; 6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the plaintiff and thru false pretences to which the latter was prey; 7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on the other hand, in not allowing the defendant to establish his special defenses; 8. In ordering separation of the conjugal partnership properties; and 9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000, with interest at the legal rate.1äwphï1.ñët Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant from the plaintiff constitute abandonment in law that would justify a separation of the conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff of the state of their business enterprises such an abuse of his powers of administration of the conjugal partnership as to warrant a division of the matrimonial assets? The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955, although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during which they engaged in brief conversations. After 1955 up to the time of the trial, the defendant had never visited the conjugal abode, and when he was in Bacolod, she was denied communication with him. He has abandoned her and their children, to live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one of her husband's polo shirt which was written by Nenita and in which she asked "Bering" to meet her near the church. She confronted her husband who forthwith tore the note even as he admitted his amorous liaison with Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and expressed the hope that the addressee ("Darling") could join her in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners". Immediately after her husband departed for Manila the following morning, the plaintiff enplaned for Baguio, where she learned that Nenita had actually

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the manager of the Philippine Texboard Factory. the Speedway Trucking Service. but had already left for Manila before her arrival. This latter declaration was not rebutted by the plaintiff. he never failed to visit his family. to inquire. and not for a single instance had he been caught or surprised by her with another woman. Ganaban. This declaration is contradicted. The defendant. there must be real abandonment. particularly the children. the letter exh. as witnessed by the plaintiff's admission in her original and amended complaints as well as in open court that during the entire period of their estrangement. contrary to the allegations of the complainant. in the case at bar. On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership. or administration by the wife. as it never has been. under article 178. two of whom were studying in Manila at the time of the trial and were not living with the plaintiff. namely. that he has steadily expanded the income and assets of said business enterprises from year to year. which abandonment. He had always been faithful to his wife. effects and merchandise manufactured or produced in the business enterprises of the parties were sold or disposed of". receivership. much less prove. corroborated the testimony of the defendant on the matter of the support the latter gave to his family. except that . he started to live separately from his wife.200 to P1. or separation of property". Bacolod City. even as his wife threw money away at the mahjong tables.stayed at the Patria Inn. His constant presence in Manila was required by the pressing demands of an expanding business. but admitted that in 1957. may provide for a receivership. while pertinent and material in the determination of the merits of a petition for legal separation. we nevertheless can determine its meaning from the context of the Law as well as from its ordinary usage. his intention was not. 1958. Tangible proof of his endeavors is that from a single cargo truck which he himself drove at the time of their marriage. by the plaintiff herself who testified that in 1955 the defendant "used to have a short visit there. 1955 to August 15. he was giving her around P500 a month for support. In addition to abandonment as a ground. for his part. if it constitutes abandonment in law. the plaintiff herself furnished him food and took care of his laundry. . Celia Bañez. explaining that she played mahjong to entertain herself and forget the infidelities of her husband.500 a month. The defendant denied that he ever maintained a mistress in Manila. 1 The abandonment must not only be physical estrangement but also amount to financial and moral desertion. and it is our considered view that the defendant is not guilty of abandonment of his wife. the Negros Shipping Service. It behooves us. the plaintiff declared that the defendant refused and failed to inform her of the progress of their various business concerns. by declaring in court that since the start of his employment in 1950 as assistant general manager. she may petition the court for a receivership. or administration by her of the conjugal partnership property. even for a single month. by the witness himself. His wife was always in bad need of money because she played mahjong. must in this case be regarded merely as an attempt to bolster her claim that the defendant had abandoned her. It will be noted that the plaintiff does not ask for legal separation. Hence. denied having abandoned his wife and children. or separation of property". Although she did not allege. The allegation of his wife that he had a concubine is based on mere suspicion. He came to know Nenita Hernandez when she was barely 12 years old. to the management. To entitle her to any of these remedies. He denied having further relations with this woman. to abandon his wife and children. in his absence. channeled his ingenuity. maintenance and expansion of their business concerns. Later she met her husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel where she again confronted him about Nenita. and/or whether the defendant has abused his powers of administration of the conjugal partnership property. The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the husband for at least one year are the same as those granted to her by article 167 in case of abuse of the powers of administration by the husband. When he transferred his living quarters to his office in Mandalagan. The concept of abandonment in article 178 may be established in relation to the alternative remedies granted to the wife when she has been abandoned by the husband. or a year before the filing of the action. whether there has been abandonment. testifying for the plaintiff. she averred nevertheless that her husband might squander and dispose of the conjugal assets in favor of his concubine. previous to the trial. The evidence presented by her to prove concubinage on the part of the defendant. the plaintiff also invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial assets. that all that the spouses now own have been acquired through his diligence. would justify separation of the conjugal assets under the applicable provisions of article 178 of the new Civil Code which read: "The separation in fact between husband and wife without judicial approval. intelligence and industry. all of which are designed to protect the conjugal assets from waste and dissipation rendered imminent by the husband's continued 3 . but had lost track of her thereafter. if the husband has abandoned the wife without just cause for at least one year. declared that she was employed as a cook in the home of the spouses from May 15. as proved by his balance sheet and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2). We have made a searching scrutiny of the record. as to warrant division of the conjugal assets. This article provides that "In case of abuse of powers of administration of the conjugal partnership property by the husband. Since 1953 he stayed in Manila for some duration of time to manage their expanding business and look for market outlets for their texboard products. so as to justify the plaintiff's plea for separation of property. From the time he started living separately in Mandalagan up to the filing of the complaint. denied that he has abandoned his wife and family. Marcos V. the courts. the plaintiff has been drawing an allowance of P1. the Bacolod Press. C. and that during the entire period of her employment she saw the defendant in the place only once. He denied having destroyed the alleged note which the plaintiff claimed to have come from Nenita. to give them financial support. Even the plaintiff admitted in both her original and amended complaints that "sometime in 1953. shall not affect the conjugal partnership. however. that her husband had dissipated the conjugal properties. therefore. in the legal sense. Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit words. the urgency of separation of property. and that out of the income of their enterprises he had purchased additional equipment and machineries and has partially paid their indebtedness to the Philippine National Bank and the Development Bank of the Philippines.500 monthly. While in Bacolod City. with vehemence. he had built up one business after another. administration by her. In point of fact. an accusation which she did not traverse.000 to P1. by the defendant of the plaintiff. nor having seen. but only to teach her a lesson as she was quarrelsome and extremely jealous of every woman. on the petition of the wife. . and devoted his time. because of the expanding business of the herein parties. or separation of property. He decided to live apart from his wife temporarily because at home he could not concentrate on his work as she always quarreled with him. his wife and children continued to draw allowances from his office of a total ranging from P1. the defendant established an office in the City of Manila. The defendant." which statement implies more than one visit. wherein some of the goods. and miscellaneous other business enterprises worth over a million pesos. which amount was given personally by the defendant or. and not mere separation. the Philippine Texboard Factory. The defendant's answer to the charge of mismanagement is that he has applied his industry. while in Mandalagan he could pass the nights in peace. averring that he has never failed. He financed the education of their children. nor of such abuse of his powers of administration of the conjugal partnership.

The proof that Nenita Hernandez was the concubine of the defendant and that they were living as husband and wife in Manila. The plaintiff's testimony on cross-examination. This decision may appear to condone the husband's separation from his wife. to forsake or renounce utterly. the only evidence on record offered to link the defendant to his alleged mistress is exh. which is an act of separation with intent that it shall be perpetual. in spirit and in property. the remedies granted to the wife by articles 167 and 178 are not to be construed as condonation of the husband's act but are designed to protect the conjugal partnership from waste and shield the wife from want. In re Hoss' Estate. In that case. to spare. it is not enough that the husband perform an act or acts prejudicial to the wife. a denial of the wife's prayer does not imply a condonation of the husband's act but merely points up the insufficiency or absence of a cause of action. you are not familiar with her handwriting? A. or would leave her destitute but for the charity of others. and with an intention of causing per perpetual separation. however. C. is "the act of the husband or the wife who leaves his or her consort wilfully. Q. You have not seen her writing anybody? A. whose declarations were not rebutted by the plaintiff. Is that right? A. if the husband. as used in article 178. without demonstrating by credible evidence the existence of illicit relations between Nenita and the defendant. since contributing to their support negatived such intent. Upon the contrary. the separation not being wanton and absolute. it seems rather clear that to constitute abandonment of the wife by the husband. In People v.absence from the conjugal abode. I can say that Nenita writes very well. Q. the plaintiff admitted. Neither have you written to her any letter yourself until now? A. and religiously gives support to his wife and children. The word "abandon". the meaning drawn from the definitions above reproduced. never to return to her. 8 Furthermore. although she minimized the amount of support given. Mrs. however. I am not asking you whether she writes very well or not but. or to claim his marital rights.1äwphï1. Article 1432. The record conclusively shows that he continued to give support to his family despite his absence from the conjugal home. industry. Q. you have ot sent any letter to her. underscores such failure: Q. And then there is at all no showing that the plaintiff and the children were living in want. when referring to the act of one consort of leaving the other. The emphasis is on the finality and the publicity with which some thing or body is thus put in the control of another. You personally never received any letter from Nenita? A. may altogether slam shut the door for possible reconciliation. The estranged spouses may drift irreversibly further apart. the conjugal assets at the time of the trial had increased to a value of over a million pesos. that she and the children received more than this amount. Q. 6 it was held that where a husband. new Civil Code. Therefore. is altogether too indefinite. albeit reluctantly. old Civil Code): and in the latter case. Yes. For "abuse" to exist. Nor is it sufficient that he commits acts injurious to the partnership. there must be absolute cessation of marital relations and duties and rights. With respect to the allegation that the defendant maintained a concubine. a judgment ordering the division of conjugal assets where there has been no real abandonment. on the face whereof the sender merely signed as "D" and the addressee was one unidentified "Darling". The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and resume his marital duties and rights. the record presents a different picture. you are not familiar with the handwriting of Nenita. to promote healthy family life and to preserve the union of the spouses. means to forsake entirely. There is good reason to believe. neither neglects the management of the conjugal partnership nor ceases to give support to his wife. No. he proved that through his industry and zeal. There is absolutely no evidence to show that he has squandered the conjugal assets. hereunder quoted. and to assure the wife of a ready and steady source of support. Aside from the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her husband's concubine. continued to make small contributions at intervals to her support and that of their minor child. with the intention of perpetual separation. it may only be ordered by the court for causes specified in Article 191 of the new Civil Code. that the evidence on record fails to preponderate in favor of the plaintiff's thesis. engendered by the husband's leaving the conjugal abode. despite his voluntary departure from the society of his spouse. physical separation alone is not the full meaning of the term "abandonment". and never to resume his marital duties towards her. This fact is admitted by the complainant. supra. Neither have you received on any time until today from 1949 from Nenita? A. On the contrary. the already broken family solidarity may be 4 . with intent never again to resume or claim one's rights or interests. Yes. Schelske. and efficiency as he did prior to the separation. The plaintiff however failed to connect authorship of the said letter with Nenita. we believe. for these may be the result of mere inefficient or negligent administration. Coming back to the case at bar. Q. 2 The dictionaries trace this word to the root idea of "putting under a bar". 7 If there is only physical separation between the spouses (and nothing more). Consistent with its policy of discouraging a regime of separation as not in harmony with the unity of the family and the mutual affection and help expected of the spouses. it was ruled that a father did not abandon his family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their separation and that he gradually paid some old rental and grocery bills.ñët Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal properties because the basic policy of the law is homiletic. as the defendant's claim that his wife and children continued to draw from his office more than P500 monthly was substantially corroborated by Marcos Ganaban. De la Cruz. Anent the allegation that the defendant had mismanaged the conjugal partnership property. saying that it was only P500 monthly. Why should I write a letter to her. Therefore. we believe that the defendant did not intend to leave his wife and children permanently. my question is this: In view of the fact that you have never received a letter from Nenita. in its ordinary sense. evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. after leaving his wife. No. he was not guilty of their "abandonment". the Civil Code (both old and new) requires that separation of property shall not prevail unless expressly stipulated in marriage settlements before the union is solemnized or by formal judicial decree during the existence of the marriage (Article 190. but the husband continues to manage the conjugal properties with the same zeal. in person. 3 When referring to desertion of a wife by a husband. contrary to the findings of the court a quo. that she frequently played mahjong. such neglect as either leaves the wife destitute of the common necessaries of life. Abuse connotes willful and utter disregard of the interests of the partnership." 4 The word "abandonment". we are not disposed to grant the wife's petition for separation of property. as in the case at bar. from which we can infer that she had money. and hence the meaning of giving up absolutely. The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of the conjugal partnership to inform the wife of the progress of the family businesses constitutes abuse of administration." 5 Giving to the word "abandoned". the word has been defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her entirely.

irretrievably shattered. holding that the petitioner and the private respondent were legally married and that the properties mentioned by the petitioner were acquired by Jo during their 5 .000 which was allowed to the wife in 1958. The two cases were consolidated and tried jointly.000. there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property. While admitting that no mention was made of Civil Case No. The private respondent's petition for review on certiorari was dismissed for tardiness in our resolution dated February 17. is. ACCORDINGLY." However. until he shall have rejoined her in the conjugal home. subject to separation of property under Article 178. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this Court for relief. and b) no such separation was decreed by the trial court in the dispositive portion of its decision.00 in the concept of attorney's fees. long before the devaluation of the Philippine peso in 1962. Such alertness could have avoided this litigation on a purely technical issue. in the concept of support. This Court would be remiss if it did not. and ask for adequate support. she is now concluded by the said decision. petitioner. however. The petitioner has a point. The first of these women. After all.000. Monina Jo.00 to the plaintiff Prima Partosa. 51. is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500. this Court may clarify such an ambiguity by an amendment even after the judgment have become final. It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175. the herein petitioner. Branch 35.00 for the construction of the house in Zamboanguita. the judgment a quo. particularly since the order embodied in that paragraph was in her favor. As will be noticed. this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang. The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal. which amount may. Ample authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases "where the court deems it just and equitable that attorney's fees . G. in the meantime. 2 In doing so. has given cause for the plaintiff to seek redress in the courts. We have said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision. an award of attorney's fees to the plaintiff must be made. 36. . by leaving the conjugal abode. an award of P10. 1 The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code. should have taken immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. J. endure. under the environmental circumstances. both parties came to this Court for relief. vs. THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING). On November 29. should be increased to P3. CRUZ. which affirmed the ruling of the trial court in the complaint for support. When their motions for reconsideration were denied. In 1980. The petitioner should have called the attention of the trial court to the omission so that the proper rectification could be made on time. Lee. Nevertheless. therefore. in addition to an earlier action for support. where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter. and. the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of the decision reading as follows: It is. On the matter of attorney's fees. the Court may resort to the pleading filed by the parties and the findings of fact and the conclusions of law expressed in the text or body of the decision. in view of all the foregoing arguments and considerations. 1983. 1992 PRIMA PARTOSA-JO. admits to having cohabited with three women and fathered fifteen children. The drafting of the decision was indeed not exactly careful. be reduced or increased in the discretion of the court a quo as circumstances warrant. 82606 December 18. sufficient. the amount of P3. No pronouncement as to costs. in the Regional Trial Court of Negros Oriental. without interest. 1988.200. that case should be considered impliedly dismissed. the dispositive portion of which read: WHEREFORE. third paragraph of the Civil Code. is reversed and set aside. Jo elevated the decision to the Court of Appeals. rendered an extensive decision. which can no longer be corrected at this late hour. The award of attorney's fees to the plaintiff is reduced to P10. Not having done so. As the decretal portion clearly made no disposition of Civil Case No. The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. earnestly and steadfastly — all opportunities for reconciliation to the end that their marital differences may be happily resolved. No. 51. Judge German G. to be paid on or before the 5th day of every month. it is our view that because the defendant. docketed as Civil Case No.: The herein private respondent. remind the plaintiff and the defendant that the law enjoins husband and wife to live together.000. on the basis of mutual respect and understanding.R. insofar as it decrees separation of the conjugal properties. the defendant is ordered to pay to the plaintiff. the technical defect is not insuperable.000 per month. The petitioner's counsel. 178 and 191 of the Civil Code. the petitioner filed a complaint against Jo for judicial separation of conjugal property. and any flickering hope for a new life together may be completely and finally extinguished. alias Consing. also against him and docketed as Civil Case No. . Conformably to our observations. claims to be his legal wife whom he begot a daughter. exhort them to avail of — mutually. 3 The trial court made definite findings on the complaint for judicial separation of conjugal property. the defendant in this case.000. firstly. therefore. Jose Jo. respondents. The other women and their respective offspring are not parties of these case.000. This petition deals only with the complaint for judicial separation of conjugal property.00 to the plaintiff by way of support in arrears and to pay the plaintiff the amount of P3. The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively discussed in the body of the decision. hereby ordered that all properties in question are considered properties of Jose Jo. and conjugal harmony may return and. 51 in the dispositive portion of the decision of the trial court. secondly. noting this. should be recovered. Jr. the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. We deal first with the second ground. and. and to give to the plaintiff the amount of P40. Negros Oriental where she may live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19. which is subject of separate proceedings as enunciated herein. The monthly alimony in the sum of P2. in our opinion.

with the intention of perpetual separation. As the private respondent is a Chinese citizen. will dispose of a question according to the law prevailing at the term of such disposition. the petitioner may also invoke the second ground allowed by Article 128. Abondonment by a spouse of the other without just cause. of for authority to be the sole administrator of the conjugal partnership property. there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on appeal. the aggrieved spouse may petition the court for receivership. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal property. and 2. we hereby make such modification. the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other persons in violation of the Anti-Dummy Law. As we held in Ramirez v. in reviewing a judgment on appeal. In addition. Jo has freely admitted to cohabiting with other women and siring many children by them. subject to such precautionary conditions as the court may impose. even if she said spouse does not leave the other spouse. he even denied being married to her. Abandonment implies a departure by one spouse with the avowed intent never to return." It held that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. And even if they did. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband. She submits that the agreement between her and the private respondent was for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. and without in the meantime providing in the least for one's family although able to do so. The above-quoted provision has been superseded by Article 128 of the Family Code. 6 This idea is clearly expressed in the above-quoted provision. Failure of one spouse to comply with his or her obligations to the family without just cause. parental or property relations. the spouse have been separated in fact for at least one year and reconciliation is highly improbable. shall not affect the conjugal partnership. which reads: Art. where she and Jo were living together "because that was our agreement. It is these properties that should now be divided between him and the petitioner. when she returned to him at Dumaguete City and he refused to accept her. except that: xxx xxx xxx (3) If the husband has abandoned the wife without just cause for at least one year. or administration by her of the conjugal partnership property or separation of property. Its conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code. providing as follows: Art. whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. and to expedite these proceedings. the private respondent refused to give financial support to the petitioner. beginning 1968 until the determination by this Court of the action for support in 1988. this arrangement was repudiated and ended in 1942. by statute. Moreover. on the assumption that they were acquired during coverture and so belong to the spouses half and half. In the interest of substantive justice. followed by prolonged absence without just cause. The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is indeed their real owner. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City. Their separation thus falls also squarely under Article 135 of the Family Code. significantly. 178 and 191 of the Civil Code. The physical separation of the parties. The petitioner contends that the respondent court has misinterpreted Articles 175. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family. 128. The separation in fact between husband and wife without judicial approval. 5 There must be absolute cessation of marital relations. There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the dispositive portion. the aggrieved spouse may petition for judicial separation on either of these grounds: 1. who declared under oath that she left Dumaguete City. 178. Any of the following shall be considered sufficient cause for judicial separation of property: xxx xxx xxx (6) That at the time of the petition. for judicial separation of property. coupled with the refusal by the private respondent to give support to the petitioner. duties and rights. The court will therefore reverse a judgement which was correct at the time it was originally rendered where. 1988.marriage although they were registered in the name of the apparent dummy. 51. The petitioner invokes Article 178 (3) of the Civil Code. sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. and not according to the law prevailing at the time of rendition of the appealed judgement. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. 135. she may petition the court for a receivership. The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3." The record shows that as early as 1942. the private respondent had already rejected the petitioner. A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of returning. The obligations to the family mentioned in the preceding paragraph refer to martial. in which actions. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 4 by virtue of which the conjugal partnership of property would be terminated. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal relationship. 6 . for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. The respondent court relied mainly on the testimony of the petitioner. which states: Art. which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. And now to the merits of Civil Case No. Under the this provision. Court of Appeals: 7 The greater weight of authority is inclined to the view that an appellate court. They never agreed to separate permanently. The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. 51 and thus upholding mere form over substance.

1 As to the adultery with Nelson Orzame. if not express. L-13553 February 23. plaintiff filed on July 5. directed the provincial fiscal to investigate whether or not collusion existed between the parties. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture. the law does not order the dismissal.The past has caught up with the private respondent. plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. 1938 by a religious ceremony in Guimba. he had consented to the philandering of his wife.: Action for legal separation by Jose de Ocampo against his wife Serafina. 101 above. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. it takes precautions against collusion. 101. (The Court of Appeals did not find collusion. and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them. G. she indicated her willingness to be separated. The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband. aside from Jose Arcalas. Yet. The court of first instance of Nueva Ecija dismissed it. or to be represented in court as having committed. "On June 18. SERAFINA FLORENCIANO. as well as in fact. plus condonation or consent to the adultery and prescription. which implies more than consent or lack of opposition to the agreement. the decree may and should be granted.R. the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. The plaintiff presented his evidence consisting of the testimony of Vicente Medina. the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. Jose de Ocampo and Capt. he must now make an accounting to his lawful wife of the properties he denied her despite his promise to their of his eternal love and care. B Lived with C. 1955. If a confession defeats the action ipso facto. The fiscal examined the defendant under oath. 51 is hereby decided in favor the plaintiff." The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed. any defendant who opposes the separation will immediately confess judgment. and in June 1955 with Nelson Orzame. and pursuant to Art. Needless to say. when the court is informed that defendant equally desires the separation and admitted the commission of the offense. SO ORDERED. Serafin Gubat. B abandoned A. respondent. 101. even supposing that the above statement of defendant constituted practically a confession of judgment. but upon evidence presented by the plaintiff. 1951. the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. 1955. which for convenience are quoted herewith: ART. vs. When she refused to answer the complaint. plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Where both spouses are offenders. A returned and charged B and C with adultery. Mateo Damo. Because the defendant made no answer. 7 . We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code. Issue: Is B guilty of adultery? Decision of the Supreme Court: B should be acquitted because A's conduct warranted the inference that in truth. since it would not be based on her confession. she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. This agreement. purposely to prevent it. as evidence. . (Art. Allowing the proceeding to continue. Again. holding there was confession of judgment. New Civil Code) We must agree with the Court of Appeals on this point. the appellate court found that in the night of June 18. . 1955. Yet. the husband upon discovering the illicit connection. This division shall be implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership. inasmuch as there is evidence of the adultery independently of such statement. in March 1951 with Jose Arcalas. were legally married. 1952. In case of non-appearance of the defendant. Cesar Enriquez. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand. to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. and the commission of adultery by Serafina. for the purpose of enabling the other to obtain a divorce. It merely prohibits a decree of separation upon a confession of judgment. Plaintiff signified his intention of filing a petition for legal separation. As we understand the article. it does not exclude. BENGZON. As amended. Later. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.—The legal separation may be claimed only by the innocent spouse. Towards the end of June. 1960 JOSE DE OCAMPO. A did nothing to interfere with the relations of his wife and her paramour.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. 100. when defendant had finished studying her course. she left plaintiff and since then they had lived separately. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. legal separation could not be decreed. because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. or to suppress evidence of a valid defense. Nueva Ecija. WHEREFORE. provided there has been no condonation of or consent to the adultery or concubinage. No. They begot several children who are now living with plaintiff. The record shows that on July 5. including those that may have been illegally registered in the name of the persons. Case: People vs Sansano and Ramos 59 Phil. And when she was questioned by the Fiscal upon orders of the court. plaintiff discovered that while in the said city defendant was going out with several other men. 73 Facts of the Case: A and B. respectively. Accordingly. a matrimonial offense. If there is no collusion. petitioner. Later. 102. a petition for legal separation. In March. any admission or confession made by the defendant outside of the court. on the ground of adultery. it should be doubly careful lest a collusion exists. between husband and wife for one of them to commit. the court defaulted her. a legal separation cannot be claimed by either of them. and had lived thereafter as husband and wife. share and share alike. where she stayed for one year. ART. it described their marriage performed in 1938. Civil Case No. After his extramarital flings and a succession of illegitimate children. and then reported to the Court that there was no collusion. husband and wife. J. the evidence thus presented shows that "plaintiff and defendant were married in April 5. completely abandoning his wife B for more than seven years. expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. . The Court of Appeals affirmed. the complaint for legal separation was filed.) Collusion in divorce or legal separation means the agreement. is no obstacle to the successful prosecution of the action. Ernesto de Ocampo.2 This is not occur. He event went to Hawaii. According to the Court of Appeals. 1955. the petitioner herein. or to appear to commit.

it was not his duty to search for her to bring her home. a vital difference will be found: in both instances. the court subsequently declared the wife in default. J. (2d) 1017. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages. 252). on the ground that.). this Court inferred the husband's consent to or condonation of his wife's misconduct. 1957 WILLIAM H. whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. the court rendered judgment denying the legal separation asked. Suppl. W. Sandoz vs. [2d] 688. So ordered. in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary.R. the defendant-appellee. and cross-examined plaintiff Brown. from 1942 to 1945. Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito. there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not. to intervene for the state which is not the fact in the instant case. provided there has been no condonation or of consent to the adultery or concubinage. that there had been consent and connivance.). William H. the truth of the matter being that he intervened for Juanita Yambao. Williams. Under 8 . for custody of the children issued of the marriage. here it was the wife who "left" her husband. Adong vs. 246 N. who defaulted. It is consonant with this policy that the injury by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. Article 52. Gmur 42 Phil. or agreed upon. "when the power of the prosecuting officer is limited to finding out whether or not there is collusion. 855. It is a ground for denying the divorce. which is the fact in the case at bar. 590. The court erred in declaring that there was condonation of or consent to the adultery. which was upon his release from internment in 1945. Griffiths. 9). (Rec.] 40 N.] 46 Atl. Tomas internment camp. providing: ART. The court erred in dismissing the plaintiff's complaint. who was not his wife. and directed the City Fiscal or his representatives to— investigate. the offense of adultery had really taking place. In this connection. 43 Phil.may be implied from the acts of the parties. because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery. J. it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. 689 60 Atl. And proof that the defendant desires the divorce and makes no defense. (Griffiths vs. whether by preconcerted commission by one of a matrimonial offense. Two decisions3 are cited wherein from apparently similar circumstances. 231. Y. Assistant City Fiscal Rafael Jose appeared at the trial. E. REYES. The complaint prayed for confirmation of the liquidation agreement. Brown appeared to this Court. BROWN. upon careful examination. according to the evidence. Rosenweig vs.B. assigning the following errors: The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant. and for their remedy as might be just and equitable. in accordance with Article 101 of the Civil Code. to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. Conyers. The court below also found. Hers was the obligation to return. 214 Pas. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. such evidence of such misconduct. Rep. is to emphasize that marriage is more than a mere contract. Campos. who is private citizen and who is far from being the state. (Pohlman vs.: On July 14. Wherefore. JUANITA YAMBAO. all the consequent effects. Here. 69 N. 102 An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after date when such cause occurred. and because Brown's action had prescribed under Article 102 of the same Code: ART. a legal separation cannot be claimed by either of them. Divorce and Separation. vs. Y. [N. As ordered. No.). G. Eq. Pohlman. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent. 1099. We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. p. and if there is no collusion. The defendant could not have falsely told the adulterous acts to the Fiscal. vs. However. Brown had lived maritally with another woman and had begotten children by her. 107 Ore. Section 500). since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945. defendant-appellee. or by failure. Upon petition of the plaintiff. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife. it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated. Goitia vs. The legal separation may be claimed only by the innocent spouse. his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945. 282. 100. because her story might send her to jail the moment her husband requests the Fiscal to prosecute. Cheong Gee. Where both spouses are offenders. that thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The policy of Article 101 of the new Civil Code. the Assistant Fiscal acted as consel for the defaulting wife. The argument is untenable. for failure to answer in due time. since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. 1955. finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse. upon his release from internment. Nelson. Conyers. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation. Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code. J. L-10699 October 18. under Article 88). Consequently. 35 Phil. that the defendant be declared disqualified to succeed the plaintiff. that it is a social institution in which the state is vitally interested. while the wife's adultery was established. Ramirez vs. 43. App. [N. (Williams vs. She could not have practiced deception at such a personal risk. Sandoz. Costs of all instances against Serafina Florenciano. despite service of summons. In this case. plaintiff-appellant. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State.. Rosenweig. J. the husband had abandoned his wife.L. 658. Thereafter. were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses.". Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders. Wherefore. so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code. or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. is not by itself collusion. 224 S. at the University of Sto. and correctly held that the appellant's action was already barred.

who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint. ordered the dismissal of the action. Hence. The legal separation may be claimed only by the innocent spouse. which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence. Manila. After the motion for reconsideration filed by plaintiff was denied. is barred by the statute of limitations. The third assignment of error being a mere consequence of the others must necessarily fail with them. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or. condonation is the "conditional forgiveness or remission. Immediately after their marriage. The motion to dismiss was answered by plaintiff and the Court. the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco. there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner and prescription of the action). Pangasinan.R. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. Ilocos Norte. by a husband or wife of a matrimonial offense which the latter has committed". Nevertheless. On November 18. 1951. Pangasinan. the case was dismissed.. The facts of the case abridgedly stated are as follows: Benjamin Bugayong. plaintiff-appellant. Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife. 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity. Certainly. As early as July. which she claims to have destroyed. Pangasinan. It is to be noted. the act charged have been condoned by the plaintiffhusband. that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband. 1952. that a certain "Eliong" kissed her. and (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. It is true that the wife has not interposed prescription as a defense. as anyway they have not been raised in appellant's assignment of errors. the couple lived with their sisters who later moved to Sampaloc. 97. We will disregard the other 2 grounds of the motion to dismiss. Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan. was married to defendant Leonila Ginez on August 27. All these communications prompted him in October. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. of "acts of rank infidelity amounting to adultery" preferred against the defendant. The decision appealed from is affirmed. As the questions raised in the brief were merely questions of law. considering only the second ground of the motion to dismiss i. at Asingan. 102. 1949. G. nor the 9 . action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. 100. We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery.: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant. instead of answering his query. So ordered. 1956 BENJAMIN BUGAYONG. The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery". condonation. the courts can take cognizance thereof. the cause of action. She came along with him and both proceeded to the house of Pedro Bugayong. because actions seeking a decree of legal separation. a serviceman in the United States Navy. or about July. No. where they stayed and lived for 2 nights and 1 day as husband and wife. 1952. Where both spouses are offenders. defendant's godmother. Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila. Leonila Ginez. (b) In finding that there were condonation on the part of plaintiff-appellant. involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiffhusband had preferred in the complaint against his wife. but said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact involved. 1951. On the second day. and he was directed to consult instead the navy legal department. LEONILA GINEZ. ART. plaintiff exerted efforts to locate her and failing to find her. ART. a cousin of the plaintiff-husband. or (2) An attempt by one spouse against the life of the other. p. the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. however. The Civil Code provides: ART. After that and despite such belief. plaintiff admitted that his wife also informed him by letter. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code. with costs against appellant. as stated in I Bouver's Law Dictionary. defendant-appellee. appellant's counsel maintaining that the lower court erred: (a) In so prematurely dismissing the case. After the issues were joined and convinced that a reconciliation was not possible. Malalang. the case was taken up for review to the Court of Appeals. plaintiff went to Asingan. and even if We were to give full weight to the testimony of the plaintiff. e. provided there has been no condonation of or consent to the adultery or concubinage. but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. 1953. who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. vs. counsel for the defendant orally moved for the dismissal of the complaint. a legal separation cannot by either of them. In August. 585. or annulment of marriage. On cross-examination. It is thus needless to discuss the second assignment of error. if any. he went to Bacarra. and sought for his wife whom he met in the house of one Mrs. L-10033 December 28. Even if it did not. the court set the case for hearing on June 9. as the complaint states. or. Appellant's brief does not even contest the correctness of such findings and conclusion. "to soothe his wounded feelings". Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. merely packed up and left. The order of dismissal was appealed to the Court of Appeals. After some time. while on furlough leave.Article 102 of the new Civil Code. (2) That under the same assumption. from which place she later moved to Dagupan City to study in a local college there. which he took as a confirmation of the acts of infidelity imputed on her. FELIX. the Court of Appeals certified the case to Superiority. nor the anonymous letters which plaintiff also failed to present. J. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor. his situation would not be improved.

t. Rogers.s. Four days later or on the fifth day since my arrival she went to the house of our godmother.s.s. t. such acts necessary implied forgiveness. I consulted the chaplain and he told me to consult the legal adviser. it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. I came to know that my wife is committing adultery.s. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Shackleton.n. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation. to what extent must it be to constitute condonation? Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation. citing Phinizy vs. 15 South 657.n. of the legal provisions above quoted. 19. Eq. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant. legal separation cannot be claimed by either of them. amount to a condonation of her previous and supposed adulterous acts? In the order appealed from. J. and of the various decisions above-cited. In the lights of the facts testified to by the plaintiffhusband. t. you have filed this action for legal separation from your wife. When was that? — A. Court why you want to separate from your wife? — A." In Tiffany's Domestic and Family Relations. 185. implied by the law when not express. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day. because his said conduct comes within the restriction of Article 100 of the Civil Code. deprives him.alleged letter that. 12. t. 11. Where both spouses are offenders.s. E. What happened next? — A. do not amount to anything that can be relied upon. of any action for legal separation against the offending wife.n. A breach of the condition will revive the original offense as a ground for divorce. 19. 19 t. In this appeal. J. though in vain. A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. t.n. 50 Atl. S. (p. 67 N. preferred to desert him. (p.) Q. after which he says that he tried to verify from her the truth of the news he had about her infidelity. Toulson. that the wrongdoer shall not again commit the offense. That was in August.n.)lawphil. provided there has been no condonation of or consent to the adultery or concubinage. What did he do in such state of mind. In August. according to plaintiff. 100 it says:lawphil. 19. 364. 401. do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him. The act of the latter in persuading her to come along with him. the plaintiff further testified as follows: Q. How many nights did you sleep together as husband and wife? — A. (p. 80 Pac. will amount to conclusive evidence of condonation. it is presumed that they live on terms of matrimonial cohabitation (27 C. Eq. 10 . Condonation may be express or implied. Collins vs. sir. especially those portions quoted above. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt. J. (p. section 61 and cases cited therein).n. 154 Ga. We agree with the trial judge that the conduct of the plaintiffhusband above narrated despite his belief that his wife was unfaithful. Only two nights. and where the parties live in the same house. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife. but this presumption may be rebutted by evidence (60 L. But this is not a question at issue.) Q. t. 97. when you slept in your own house. and also that he shall thereafter treat the other spouse with conjugal kindness. and the further fact that in the second night they again slept together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery.net The legal separation may be claimed only by the innocent spouse. and with the knowledge or belief on the part of the injured party of its commission.) Q. 73).) Q. sir. (27 Corpus Juris Secundum. 21 Atl. Please tell this Hon. Yes. Prob. in its Art. 12. Yes.n. If there had been cohabitation. S.s. the Court a quo had the following to say on this point: In the hearing of the case. 48 N. 1952. the inevitable conclusion is that the present action is untenable. did you slept together? — A. On the next night. and as a husband I went to her to come along with me in our house but she refused. One day and one night. says: A petition for legal separation may be filed: (1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party. as alleged the offended spouse. (p. (p. 114 S. a reconciliation was effected between her and the plaintiff. Now Mr. and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night. probably enraged for being subjected to such humiliation. 1952. It has been held in a long line of decisions of the various supreme courts of the different states of the U. In Shackleton vs. 935. But it is on the condition. Day vs. did you sleep together also as husband and wife? — A.s.s.. whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. (p. instead of answering his query on the matter. Phinizy. 199. And yet he tried to locate her. his wife addressed to him admitting that she had been kissed by one Eliong. t.n. A detailed examination of the testimony of the plaintiffhusband. Now. Bugayong. Martin. her consent should operate as a pardon of his wrong. especially as against the husband'. How long did you remain in the house of your cousin Pedro Bugayong? — A.) The New Civil Code of the Philippines. Day. J.net Q. section 107 says: Condonation. Although no acts of infidelity might have been committed by the wife. but failed to attain his purpose because his wife.) Q. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. section 6-d). (p. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong. I persuaded her to come along with me. after the commission of the offense. 12. clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife.) Q. and in its Art. Did you finally locate her?--A. 534) or sleeping together for a single night (Toulson vs.

the suit must be dismissed for two reasons. 1956. the. . 100 Civil Code). filed with the Court of First Instance of Camarines Sur. Having condoned and/or consented in writing. provided there has been no condonation of or consent to the adultery or concubinage. provided there has been no condonation of or consent to the adultery or concubinage. petitioner. ZOILO PRAXEDES. 14 N. therefore. L-11766 October 25. plaintiff-appellant. Counsel in his brief submits that the agreement is divided in two parts. 1955. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss.: Alleging abandonment and concubinage. The same is hereby affirmed. the court a quo rendered judgment holding that the acts of defendant constituted concubinage. (a) That both of us relinquish our right over the other as legal husband and wife. from the fact of the living together as husband and wife. nothing appearing to the contrary. 1955. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January. 7-8).It was shown also that defendant and Asuncion deported themselves as husband and wife and were generally reputed as such in the community. because in the second ground of the motion to dismiss. defendant-appellee. the order appealed from is hereby affirmed. long before the effectivity of the new Civil Code" (appellants brief. During the trial. PAREDES. said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. and on the strength of the foregoing. and the second part — that which becomes a license to commit the ground for legal separation which is admittedly illegal. Again. because it is contrary to the evidence. we find that the decision appealed from is in accordance with the evidence and the law on the matter.. the plaintiff cannot claim legal separation. C.R. No. (d) That neither of us can claim anything from the other from the time we verbally separated. 413). plaintiff. 1944 to the present when we made our verbal separation into writing..). viz: Under Art. the plaintiff is now undeserving of the court's sympathy (People vs. For failure to agree on how they should live as husband and wife. . Plaintiff and defendant were legally married on January 10. L-34132 July 29. an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. Camarines Sur. 1956. the plaintiff has consented to the commission of concubinage by her husband. The law (Art. calls for the interpretation of the provisions of the law upon which the lower court based its judgment of dismissal. The above decision is now before us for review. agreed to live separately from each other.R. we cannot subscribed to counsel's contention. Rule 17 of the Rules of Court). which status remained unchanged until the present. she came to know the ground (concubinage) for the legal separation in January. The very wording of the agreement Exhibit B. By the very admission of plaintiff. She instituted the complaint only on April 24.. the significant portions of which are hereunder reproduced. The complaint was filed outside the periods provided for by the above Article. No. is no longer entitled for any support from my husband or any benefits he may received thereafter. pp. As shown in Exhibit B. Her consent is clear from the following stipulations: (b) That both of us is free to get any mate and live with as husband and wife without any interference by any of us. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. filed out of time and for that reason action is barred. He claims however. on May 30. 1955. plaintiff and defendant entered into an agreement (Exhibit B). B). with costs. 1943 at Iriga. J. but without the marital bond having been affected. We do not share appellant's view. 1960 SOCORRO MATUBIS. G.Collins. It is so ordered. Wherefore. nor I the husband is not entitled for anything from my wife. 1972 LUCY SOMOSA-RAMOS. 1944. on April 24. who interposed the defense that it was plaintiff who left the conjugal home. Eq. G. 1956. The resumption of marital cohabitation as a basis of condonation will generally be inferred. Plaintiff's counsel even agrees that the complaint should be dismissed. nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4. the couple. 73 Phil. The first part having to do with the act of living separately which he claims to be legal. This stipulation is an unbridled license she gave her husband to commit concubinage. that the grounds for the dismissal should not be those stated in the decision of the lower court. Marsh. J. a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes. The present action was. It is true that it was filed after the answer and after the hearing had been commenced. On April 3. defendant began cohabiting with one Asuncion Rebulado and on September 1. that is from May 30. Presiding Judge of the Court of 11 . 1955. (b) That both without any interference by any of us. The proposition. vs. plaintiff Socorro Matubis. Article 102 of the new Civil Code provides: An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from after the date when cause occurred. with costs against appellant. In January. Conformably with the foregoing.appellant claiming that it was error for the lower court to have considered that the period to bring the action has already elapsed and that there was consent on the part of the plaintiff to the concubinage. 193 So. 102 of the new Civil Code. and many others. without the defendant adducing any evidence. gives no room for interpretation other than that given by the trial judge. especially as against the husband (Marsh vs. The allegations of the complaint were denied by defendant spouse. Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent spouse. THE HONORABLE CIPRIANO VAMENTA. (c) That I. (Exh. The complaint was filed on April 24. After the trial. vs. It is to be noted that appellant did not even press this matter in her brief. nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. a ground for legal separation. specifically provides that legal separation may be claimed only by the innocent spouse. wife. 1948. It however. 702). Scheneckenburger. JR. wherein the plaintiff alone introduced oral as well as documentary evidence. therefore. dismissed the complaint by stating: While this legal ground exist. Having consented to the concubinage. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. "but on the ground that plaintiff and defendant have already been legally separated from each other. the following facts were established:. .

or an attempt of one spouse against the life of the other. suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. petitioner received an order dated August 4. this certiorari proceeding. the hope that the parties may settle their differences is not all together abandoned. 1971.. and the offended party may in turn exhibit magnanimity. The absolute limitation from which the court suffers under the preceding article is thereby eased. L-29138 May 29. The answer was filed December 2 of that year. CESAR J.R. Ramos. Hence. defendant-appellee. 5274 in the sala of respondent Judge against respondent Clemente Ramos for legal separation. G. That the law. it may appoint another to manage said property. There may be constant bickering. Jr. much less the welfare of the husband or the wife. Grievances.:p The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition. and the order of respondent Court of August 4. then under the administration and management of respondent Clemente Ramos. No. would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit. If these are ignored or the courts close their eyes to actual facts. the guilty parties may mend his or her ways. based on Article 103 of the Civil Code. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. Ramos. vs. The pleadings show that on June 18. adultery on the part of the wife and concubinage on the part of the husband. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction. the wife who brought the action for legal separation would dispute such a ruling. The sooner the dispute is resolved. 1971 of respondent Judge granting the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. DIZON. There was an opposition to the hearing of such a motion. there would be a failure to abide by the literal language of such codal provision. If it were otherwise. the spouse shall be entitled to live separately from each other and manage their respective property. Even then. an assertion that was not specifically denied by him. that if the motion asking for preliminary mandatory injunction were heard. Respondent Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Then on September 3. the reason for maintaining the conjugal union is even more imperative. it is the holding of this Court that Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period. J. it will not serve public interest. 1971. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property. the prospect of the reconciliation of the spouses would become even more dim. 1972 came a manifestation from parties in the case submitting the matter without further arguments. from the time of the issuance of the order complained of on August 4. A suit for legal separation. 1971. J. Nonetheless. answered the question in the affirmative." 2 There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such sixmonth period. 00138 dismissing her complaint upon the ground that the same was filed 12 . to allow them to go their respective ways. however. albeit reluctantly. It involves a relationship on which the law for the best reasons would attach the quality of permanence. and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. on concubinage on the respondent's part and an attempt by him against her life being alleged. 1970 ELENA CONTRERAS. It is a mark of realism of the law that for certain cases. respondents. FERNANDO. whether fancied or real. Hopefully.. What was held by this Court in Araneta v. the plea of petitioner for a writ of certiorari is granted. no such delay is permissible. that the couple is better off apart. The respondent Judge ought to have acted differently. Where there are offspring. The healing balm of time may aid in the process. The plea for a writ of certiorari must be granted. 1971. Respondent Cipriano Vamenta. does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstance . Petitioner. more than six months certainly had elapsed. of the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. 1971. The husband shall continue to manage the conjugal partnership property but if the court deems it proper. Hence. Costs against respondent Clemente G. the better for all concerned. WHEREFORE. 1 it recognizes. A suit for legal separation lies. petitioner filed Civil Case No.: Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila in Civil Case No. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. necessary to carry out legislative policy. dated July 3. The loss affection on the part of one or both may be discernible. Concepcion.First Instance of Negros Oriental and CLEMEN G. The court where the action is pending according to Article 103 is to remain passive. It reads thus: "After the filing of the petition for legal separation. The recital of their grievances against each other in court may only fan their already inflamed passions against one another. in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court. That is the order complained of in this petition for certiorari. Ordinarily of course. An administrator may even be appointed for the management of the property of the conjugal partnership. Respondents were required to answer according to our resolution of October 5. remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. RAMOS. Then on January 12. It must let the parties alone in the meanwhile. however. is something else again." He therefore ordered the suspension. 1971. the interposition of a six-month period before an action for legal separation is to be tried. 3 thus possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. rank injustice may be caused. plaintiff-appellant. It was further manifested by him in a pleading dated July 16. It is precluded from hearing the suit. It is understandable why there should be a period during which the court is precluded from acting. As will be shown later there is justification for such a move on the part of petitioner." 4 At any rate. in view of the absolute tenor of such Civil Code provision. 1. But this practical expedient. After a careful consideration of the legal question presented. considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in the management of what she claimed to be her paraphernal property. may be entertained by one or both of the spouses. The parties may in the meanwhile be heard. The law expressly enjoins that these should be determined by the court according to the circumstances. Justice to parties would not thereby be served. which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. There is all the more reason for this response from respondent Judge. upon the plea of the other respondent the husband Clemente G. of the Court of First Instance of Negros Oriental. Respondent Judge ordered the parties to submit their respective memoranda on the matter.. 1971. Lucy Somosa-Ramos. MACARAIG.

The latter was driven by Lubos to the house in Singalong and between 5:00 and 6:00 o'clock that afternoon. told plaintiff that defendant was living in Singalong with Lily Ann Alcala. in April 1963. Felicisima Antioquia. Lucilo Macaraig. and Alexander C. 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away. known as Lot 4. Out of their Marriage. the one-year period should be deemed to have started even if 13 . In respect of concubinage. 1952 in the Catholic Church of Quiapo. The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision as follows: Under the facts established by plaintiff's evidence. All this while. When defendant did not interpose any answer after he was served summons. Macaraig. to own a house and lot. Immediately before the election of 1961. the word 'cognizant' may not connote the date when proof thereof sufficient to establish the cause before a court of law is possessed. Avelino Lubos. On the other hand. where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home. Mrs. 1963. Block 8 of the Philamlife Homes in Quezon City which they transferred in favor of their three children on October 29. the one year period would be meaningless for practical purposes because all a wife would have to do would be to claim that the necessary proof was secured only within one year before the filing of the complaint. and by Mrs. The following. G) which she gave to plaintiff sometime in October. her father's employee. They repaired to Victoria Peak. howsoever baseless the report might be. the couple acquired rights. Sometime in 1958. that her husband is living in concubinage with another woman. Otherwise. All the children are in the care of plaintiff wife. the following October. After a report was received from Asst. yet the case will have to be dismissed. 1953. In September. On December 14. Victoria and Alexander. that rules might be different in case of adultery." In the absence of a clear-cut decision of the Supreme Court as to the exact import of the term "cognizant. and for concubinage. Although plaintiff. which is an act. on August 4. In the early part of December. At the time a wife acquired information. defendant was employed as manager of the printing establishment owned by plaintiff's father known as the MICO Offset. Sergio Osmeña. Macaraig. driver of the family car. defendant. the case was referred to the Office of the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. Mr. plaintiff was allowed to present her evidence.more than one year from and after the date on which she had become cognizant of the cause for legal separation. an action for legal separation cannot be instituted except within one year after plaintiff "became cognizant of the cause. Victoria C. 1958 (Exh. After plaintiff received reports that Lily Ann Alcala had given birth to a baby. on March 26. 1963. as lessee and purchaser under a conditional sale agreement. who place orders with MICO Offset for propaganda materials for Mr. in a way. Installment payments are being made by plaintiff's father. 1956. Enriqueta Majul. and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and Lily Ann Alcala. When defendant. defendant resigned from MICO Offset to be a special agent at Malacañang. she sent Mrs. who was then a Vice-Presidential candidate. it should be hard to concede that what the law envisages (and. Article 102 provides that. which can be reasonably relied upon as true. returned to the conjugal home. plaintiff." the practical application of said Article can be attended with difficulty. although the infidelity of the husband is apparent. assuring him that she was willing to forgive him. After the elections of 1961. she was so happy that defendant again return to the family home in May. F). on January 11. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. Manila. Peñaranda that he believed that there was no collusion present.. accompanied by her two children. defendant explained that he was out on a series of confidential missions. Lily Ann said she was willing to give up defendant as she had no desire to be accused criminally but it was defendant who refused to break relationship with her. defendant met and came to know Lily Ann Alcala. For one thing. Fiscal Primitivo M. a nearby restaurant. The Court believes that the correct rule lies between the two extremes. He began to be away so often and to come home very late. Macaraig. which may be a situation or a relationship. Upon plaintiff's inquiry. In that capacity. to intercede with defendant and to convince him to return to his family. plaintiff requested the cooperation of defendant's older sister. Defendant has never appeared in this case. encourages) is the filing of a complaint within one year after the innocent spouses has received information of the other's infidelity. Plaintiff then entreated her father-in-law. three children were born: Eusebio C. to verify the reports. Mrs. after talking to his son and seeking him with the latter's child told plaintiff that he could not do anything. In November. Leticia Lagronio went to talk to defendant at his place of work on España Extension in front of Quezon Institute. Antioquia then went to the parish priest of Singalong where she inquired about the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal certificate of Maria Vivien Mageline Macaraig (Exh. also received rumors that defendant was seen with a woman who was on the family way on Dasmariñas St. if and whenever he returned to the family fold. would only stay for two or three days but would be gone for a period of about a month. plaintiff instituted the present action for legal separation. Macaraig. facts found by the trial court are not in dispute: Plaintiff and defendant were married on March 16. 1958. she saw defendant was carrying a baby in his arms. 1963. The spouses own no other conjugal property. 1962. plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor drive defendant away. 1963.

Indeed. Lucilo Macaraig. the petitioner herein. Leticia Lagronio went to talk to defendant at his place of work on España Extension in front of Quezon Institute. WHEREFORE. as an alloted time within which proof should be secured. L-13982 July 31. accompanied by her two children. notwithstanding her husband's obvious neglect of his entire family. Its purpose is to obtain an order declaring: (a) That the respondent. In the words of the lower court. Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Viña. because "she was so happy that defendant again returned to the family home in May 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away. as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo. 1963 came a little too late. Province of Oriental Negros. As a matter of fact. has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband. Computing the period of one year from the former date. True. and it was only then that the legal period of one year must be deemed to have commenced. No. G. After her husband resigned from MICO Offset to be a special agent in Malacañan. the Court has to find that plaintiff became cognizant of defendant's infidelity in September. as far as the instant case is concerned from September 1962 or from December 1963. and NARCISA GEOPANO.R. Province of Negros Oriental. the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to legal separation as prayed for in her complaint. Lily Ann and the baby. respondents. 1962. in said action. 1963. the Honorable Antonio Villareal. whatever knowledge appellant had acquired regarding the infidelity of her husband. Enriqueta Majul" for the same purpose. In the instant action. Antioquia (when plaintiff had asked to verify the reports) to the house in Singalong where she saw defendant. where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home. alleging: (1) That she was a resident of the municipality of Iloilo. in the year 1888. having been married to him in the municipality of Guijulñgan.the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law. 1962. appellant likewise heard in April 1963 rumors that her husband was seen with a woman on the family way on Dasmariñas Street. Upon the undisputed facts it seems clear that. she apparently thought it best — and no reasonable person may justifiably blame her for it — not to go deeper into the matter herself because in all probability even up to that time. notwithstanding all these painful informations which would not have been legally sufficient to make a case for legal separation — appellant still made brave if desperate attempts to persuade her husband to come back home. it is clear that plaintiff's complaint filed on December 14. It is consonant with the philosophy that marriage is an inviolable social institution so that the law provides strict requirements before it will allow a disruption of its status. Victoria and Alexander. of the fact that he was then living in Singalong with Lily Ann Alcala. and (c) that all the proceedings theretofore had in said court were null and void. 1917. He allayed plaintiff's suspicions with the explanation that he had been away on 'confidential missions. petitioner. subsequent to the elections of 1961. quoting from the appealed decision. Diego de la Viña. From all the foregoing We conclude that it was only on the occasion mentioned in the preceding paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not to sue for legal separation. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. she purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant away" — quoting the very words of the trial court. 1920 DIEGO DE LA VIÑA. Her husband remained obdurate. JOHNSON. and the case is hereby remanded to the lower court for appropriate proceedings in accordance with law. (2) that she was the legitimate wife of the defendant. he would seldom come home. she "entreated her father-in-law. in September. a nearby restaurant. while the reverse would be true if said period is deemed to have commenced only in the month of December 1963. but all that was of no avail.' However. as Auxiliary Judge of First Instance. in the month of September 1962. Much as such hearsay information had pained and anguished her. reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. to intercede with defendant and to convince him to return to his family" and also "requested the cooperation of defendant's older sister. was only through the information given to her by Avelino Lubos. F.: This is an original petition presented in the Supreme Court. assuring him that she was willing to forgive him. three of whom were 14 . the only time when appellant really became cognizant of the infidelity of her husband was in the early part of December 1963 when. Province of Iloilo. It is in the light of this rule that the Court will determine whether or not plaintiff's action for legal separation has prescribed. inter alia. Avelino Lubos. plaintiff's driver. but this was due. They repaired to Victoria Peak. appellant still cherished the hope — however forlorn — of his coming back home to them. and that the defendant was a resident of the municipality of Vallehermoso. and by Mrs. The requirement of the law that a complaint for legal separation be filed within one year after the date plaintiff become cognizant of the cause is not of prescriptive nature. driver of the family car. vs." As a matter of fact. the following happened — In the early part of December. as the lower court itself believed. but failed again to either bring up the matter with her husband or make attempts to verify the truth of said rumors. ANTONIO VILLAREAL. (b) that the said respondent judge has exceeded his power and authority in issuing. it was also Lubos who brought Mrs. (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children. The period of "five years from after the date when such cause occurred" is not here involved. We are persuaded that. Plaintiff made successive attempts to induce the husband to amend his erring ways but failed. Mrs. After a careful review of the record. a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action. plaintiff. It appears from the record that on September 17. The one-year period may be viewed. J. but is of the essence of the cause of action. when her husband returned to the conjugal home the following October. in the eyes of the law. that is. The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil Code should be counted. Her desire to bring defendant back to the connubial fold and to preserve family solidarity deterred her from taking timely legal action.

15 How. may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action? I.)..) The case of Narcisa Geopano comes under one of the many exceptions above-mentioned. Cheever vs. where her husband resided. 25 Am. 1917. under the law. 155 N. in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved.) The law making the domicile of the husband that of the wife is applicable only to their relations with third parties. but not in that of the wife. 129. scorned by her husband. [Me. Cheever vs. Barber vs. (b) the partition of the conjugal property." In support of this proposition there is a formidable array of authorities. they may have different domiciles. 498. Wilson. Smith. overruled the defendant's demurrer. brought by the wife against her husband.000 and all of which was under the administration of the defendant. of Law. to decree a divorce in her favor. but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce. 549. would stand upon very unequal ground. S. 2 Bishop. or where there has been a forfeiture by the wife of the benefit of the husband's domicile. 21 How.. It is intended to promote. in which the partition of the conjugal property is also prayed for. Wilson. the defendant ejected the plaintiff from the conjugal home. and secure their interests in this relation. (Notes. to the prejudice of the plaintiff. 9 Wall. opposed the said motion for a preliminary injunction. as expressive of the idea of home. the plaintiff therein. 545. C. But the authorities are unanimous in holding that this is not an absolute rule. in which her domicile or residence is established. among other things. 23 Am. for which reason she was obliged to live in the city of Iloilo. and separate rights. The questions arising out of the foregoing facts are as follows: 1. (Harteau vs.) The matrimonial domicile of the wife is usually that of the husband. Otherwise the parties.. she acquires a domicile in the latter state.). and. This contention of the petitioner is not tenable. 375376. presented a motion. 367.. must also be considered a resident of the same province inasmuch as. 76 U. as the wife of the defendant. (U. to wit: "Where the husband has given cause for divorce. and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises. Schonwald (55 N... The defendant Diego de la Viña. 475. sec. citing various cases. and has left and deserted the wife. as follows: Although the law fixes the domicile of the wife as being that of her husband. Rep. Diego de la Viña filed the present petition for certiorari in this court. bed and board being put.). Ann. in to separate orders. and had exceeded his power and authority in issuing said preliminary injunction. and granted the preliminary injunction prayed for by the plaintiff. as it ordinarily exists. the defendant had been committing acts of adultery with one Ana Calog. Alden. as a general of law. (Atherton vs.) Under the pauper laws. Narcisa Geopano. 400-401. In that case the wife filed a bill of divorce in a court in North Carolina.. universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce.) Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife.. and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. 16 L. the wife is regarded as having the domicile of her husband. in the view of the law regulating divorces. had no means of support and was living only at the expense of one of her daughters. according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state. C. 108. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage? 2. C. sustaining illicit relations with her and having her as his concubine. 5 Am. which justifies her in leaving him. C. in this respect. It is true. (9 Wall. and Div. S. (U. 574. and the presumption that. St. from the nature of the relation. 43 La. apart for the whole. where she had since established her habitual residence." (Smith vs. which was later amended. the domicile of the husband is also the domicile of the wife. the home of the one is that of the other. 372.]. (6) that because of said illicit relations. p.. [Mass. 181. or where the husband has given cause for divorce. and Eng. or where there is a separation of the parties by agreement. S. Schonwald vs. Schouler. subsequently. that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved. necessarily authorities her to live elsewhere and to acquire a separate domicile. and especially a separate domicile and home. "nor over the person of the defendant. Atherton. Thereafter and on April 27. 63 Am. 497. and separate interests. 15 . Dec. Encyc. L. 109. Schonwald. strenghten. or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband. Barber. 55 N. p. Dec. Hus. 1918.].. 140. and Wife. upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question. Vence. Pr. therefore. 1146. and (7) that the plaintiff. where union and harmony prevail. respectively. L. A. the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. real and personal." After hearing the respective parties the respondent judge. If the husband has forfeited those rights be misbehavior. 650. or so modified as to establish separate interests. and upon general principles. dated November 1 and November 2. 582. with public scandal and in disgrace of the plaintiff. (Harding vs. R. as it is by the institution of divorce proceedings. the defendant. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain.) The law will recognize a wife as having a separate existence. 756. 343). the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband and wife is is dissolved. In an action for divorce. ed. Vence vs. and. the defendant. it being in the power of the husband to change his domicile at will. the value of which was about P300. 9 Greenl. and (c) alimony pendente lite in the sum of P400 per month. The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff. We shall content ourselves with illustrative quotations from a few of them. Upon said allegations she prayed for (a) a decree of divorce. (5) that since the year 1913 and up to the date of the complaint. Harteau. 605.." (9 R. Subsequent to the filing of the said complaint. and the duties of the wife. Accordingly. 14 Pick. and she thereupon does leave him and go into another state for the purpose of there permanently residing. petitioner herein. that the domicile of the wife follows that of her husband. 19 L. the wife may acquire another and seperate domicile from that of her husband. 1140. (9 R. (4) that during their marriage plaintiff and defendant had acquired property. alleging. demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause. hut this results from his marital rights. Mar.living and were already of age. Y.) In the case of Schonwald vs. that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant. 552.

the defendant. For her to continue living with him. upon the ground that the defendant was committing some acts in violation of the plaintiff's rights. We cannot subscribe to that argument of counsel. Ann. they have their own independent domicile. the domicile of the wife. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff. in the manner hereinafter provided. 354. as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Act No. from the very nature of the relating between husband and wife. 164. the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with article 63. p. Furthermore. that the husband's power of administration be curtailed. etc. 40) says: The domicile of married women not legally separated from their husband shall be that of the latter. 3. . that a married woman may acquire a residence or domicile separate from that of her husband. with the object of injuring her interests. she was not entitled to the relief demanded.) Manresa. (P. 23. the former will promote and not injure the interests of the latter. 190. Section 164 of Act No. which should be considered in determining jurisdiction in cases of provisional support guardianship of persons. Champon. as the wife of the defendant.) Turning to the Spanish authorities. Civil Code. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. (1 Manresa. in all of which it is declared that when married women as well as children subject to parental authority live." (Champon vs. (Scaevola. So long as this harmonious relation. 344. from party of reasons can it give jurisdiction. then. but it is not so for every purpose. for the purpose of determining jurisdiction. . and tending to render the judgment ineffectual. is empowered to alienate and encumber and conjugal property without the consent of the wife. 1887. This principle. some act probably in violation of the plaintiff's rights. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that. consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually. in our opinion. For. it is just and proper. The court dismissed the bill. would have been a condonation of his flagrant breach of fidelity and marital duty. the wife seeks to dissolve the marriage and to partition the conjugal property. The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section. and in conformity with this last decision. respecting the subject of the action. above quoted. or any part thereof. had been a resident of North Carolina for more than three years. where the wife is forbidden to come. That the defendant is doing. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction.) It is clear. that act "would probably work injustice to the plaintiff. we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. as alleged in the present case. 1899. 433). commenting upon the same article (art. neither. in a proper action. Indeed. That the plaintiff is entitled to the relief demanded and such relief. on is about to do. with the acquiescence of their husbands or fathers. in order to protect the interests of the wife. Scaevola. or threatens. not legally separated from her husband. We come now to the second question — whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner. as such. the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. during the pendency of the action. 40 La. It cannot be doubted that. and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. and the Court of First Instance granted ex parte. yet. The case under consideration. continues. when the tacit consent of the husband and other circumstances justify it. But when that relation ceases and." Therefore the law allowed her to acquire a separate residence. maintained by the Supreme Court in numerous decisions. had nor right to intervene in the administration of the conjugal property. that neither could the wife obtain a preliminary injunction under paragraph 3 of said section. says: Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman. that under articles 1412 and 1413 of the Civil Code. was modified in a particular case by the decision of June 17. which consisted in restraining the power and authority which the law confers upon the husband. In view of this fact. to the satisfaction of the judge granting it: 1. as counsel for the petitioner believes. insofar as alienating or encumbering the conjugal property is concerned. respecting the subject of the action. is not an absolute one. "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband. even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. during the existence of the marriage. and tending to render the judgment ineffectual. In her motion for a preliminary injunction.. we see no reason why the law will not allow her to do so when. or is procuring or suffering to be done. therefore. even if he had permitted it. and 28. where the husband has given cause for divorce. 28. the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman.. if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce." or that it would probably be "in violation of the plaintiff's rights. but she claimed that the domicile of her husband was also her domicile and." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property. . holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. three others were afterwards rendered on October 13. 2. is covered or contemplated by the statute (sec. Doroteo Jose asked for. in this case no longer was there an "identity of persons and of interest between the husband and the wife. 190). 233. commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case). is that of the latter. as required by the statute. so that there can be no question. because the plaintiff. a writ of preliminary mandatory injunction 16 . Del Rosario and Jose (22 Phil. The court said: It is true that for many purpose the domicile of the husband is the domicile of the wife. the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. and squander or fraudulently conceal the proceeds. Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships. II. inasmuch as her husband. in a place distinct from where the latter live.She herself had not resided in that state for three years previous to the filing of the suit. and therefore no right of hers was violated. she had also been a resident of that state during that time.) If the wife can acquire a separate residence when her husband consents or acquiesces. we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband. but the right to share in the conjugal property upon the dissolution of the conjugal partnership. In the case of Manila Electric Railroad and Light Company vs. the husband is the manager of the conjugal partnership and. as contemplated by law. 190 provides: A preliminary injunction may be granted when it is established.

he would have succeeded killing her. No. and. as courts of record of general and unlimited original jurisdiction. therefore.000. and was going to hit her with a steel tray as her driver.000. the wife may obtain a preliminary injunction against the husband. 06928-SP entitled "Manuel J. respondents. When he did not mind him. Manila Metropolitan Police. L-48219 February 28. The only limitation upon the power of Courts of First Instance to issue preliminary injunctions. The defendant. Manuel J. in which the partition of the conjugal property is also prayed for. 3 The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support during the pendency of the case. petitioner. When she ran upstairs to her father for protection. vs. opposed the application for support pendente lite on the ground that his wife had committed adultery with her physician. Ilustre and attacked plaintiff.00 a month. having in mind the nature of the remedy. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances whatever. C. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings and the documents attached thereto by the parties. 1976. alleging that even if she entitled. versus. be annulled on the ground that the respondent Judge. FERNANDEZ. The pertinent allegations of the complaint are: 6. He pummeled her with fist blows that floored her. for legal separation on the ground that the defendant had attempted to kill plaintiff. had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano. filed in the Juvenile and Domestic Relations Court of Quezon City a complaint dated June 3. determining the power of the Courts of First Instance to issue preliminary injunction. For fear of further injury and for life. Celia Ilustre-Reyes. Respondents". as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo. both preventative and mandatory. petitioner. Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this. dismissing the petition to annul the order of the respondent Judge directing the petitioner to give support pendente lite to his wife. Determined to finish her off. she went thereto to get her overnight bag. The respondent Judge reduced the amount from P5. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN ERROR OF LAW AND A DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY THIS HON. and in cases not covered by or contemplated by the statute. she rushed to Precinct 5 at united Nations Avenue. Celia Ilustre-Reyes. with intent to kill. 1979 MANUEL J. We see no compelling reason to give it due course. is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands. 1977 asking that the order granting support pendente lite to private respondent. 1977 granting plaintiff's prayer for alimony pendente lite in the amount of P5. petitioner herein. On May 26. AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD THAT RESPONDENTAPPELLEE JUDGE DID NOT COMMIT ANY 17 . COURT OF APPEALS and CELIA ILUSTREREYES. prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action. Reyes. J. had committed a grave abuse of discretion or that said order be modified inasmuch as the amount awarded as support pendente lite is excessive. private respondent herein. as Judge of the Juvenile & Domestic Relations Court. C.R.000. REYES. We believe that the petitioner has not presented a clear case of grave abuse of discretion on the part of the respondent in issuing the questioned orders. came due to her screams for help.9. defendant yelled at her to get out of the office. both legal and equitable.R. 4 Manuel J. then held her head and. LEONOR INESLUCIANO.8 On March 10. defendant went to V. 1 The private petitioner. C. the amount awarded was excessive. 2 The plaintiff asked for support pendente lite for her and her three children.00 a month in an order dated June 17. and the doctrine and practice established in the courts upon which our judicial is modeled. C. Reyes. Were it not for plaintiff's father. with costs against the petitioner. he suddenly doused her with a glass of grape juice.directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Therefore. IN REFUSING TO GIVE DUE COURSE TO THE ORIGINAL PETITION FOR certiorari HEREIN AGAINST RESPONDENTSAPPELLEES. Celia Ilustre-Reyes. Ricardo Mancera. he again gave her a strong swing at her abdomen which floored her half unconscious. for assistance and protection. 1977. No. Reyes filed a petition for certiorari in the Court of Appeals dated July 25. 1976. Upon seeing her. 5 The petitioner contends that the Court of Appeal committed the following error: THE HON. Leonor Ines-Luciano. bumped it several times against the cement floor. kicked her several times that landed at her back and nape. 6. 1976 against her husband. in the amount of P40. he pushed her at the stairway of 13 flights and she fell sliding to the ground floor. either mandatory of preventative. the Honorable Antonio Villareal. HON.: This is a petition for certiorari to review the decision of the Court of Appeals in CA-G. that in an action for divorce brought by the wife against the husband. The Court of Appeals dismissed the petition because: Considering the plight of the wife during the pendency of the case for legal separation and that the husband appears to be financially capable of giving the support. We conclude.00 a month commencing from June 1976. G. Leonor Ines-Luciano as Judge of the Juvenile & Domestic Relations Court (Quezon City) and Celia Ilustre-Reyes. It follows from all of the foregoing that the respondent. although on May 11 previous she ceased holding office with defendant at Bel-Air Apartments elsewhere adverted to. and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant. So ordered.00. prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action. is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure. as follows: The power to grant preliminary injunctions. the petition should be and is hereby denied. The respondent Judge issued an order dated March 15. The Hon. Quezon City.00 to P44. these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular case. This court denied that petition. COURT IN THE CASES WE SHALL LATER ON DISCUSS.

Lerma.00 should be made to commence or. and last Retained Earnings is P98. the respondent judge did not act capriciously and whimsically.00 as payment of support for the period from June 1976 to November 1978 or thirty (30) months at P1.00 a month. was her documentary evidence .. bumped it several times against the cement floor and when she ran upstairs to her father for protection. with paid-in capital of P100. one way or the other. had committed adultery with any person. the alleged adultery of wife must be established by competent evidence. and that she needs of P5. defendant would have succeeded in killing her. When she originally fixed the amount of P5. 1979. petitioner herein. incorporated on July 12.108. 8 It is. AND B.84. held her head and with intent to kill.000.000. and Real Estate Mortgage were undertaken by plaintiff of their properties outside of other accommodations.52. There is no showing that the respondent Judge has committed a grave abuse of discretion in granting said support. We find that the amount of P4. it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application. Assets and liabilities of P831.669.61: and majority stockholder is defendant. the petition for certiorari is hereby denied and the decision of the Council of Appeals sought to be reviewed is affirmed with the modification that the support pendente lite at the rate of Four 18 .654. The Contra-Prop Marine Philippines. Adultery is a good defense and if properly proved and sustained wig defeat the action. In a resolution dated July 31.000. kicked her several times at her back and nape and was going to hit her with a steel tray if it were not for her driver who came due to her creams for help.. had made attempts to kill the private respondent. pummeled her with fist blows that floored her. the petitioner pushed her at the stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a strong swing at her abdomen which floored her half unconscious and were it not for plaintiff's father. 1971.000. Thus it is alleged that on March 10.00 a month. WHEREFORE. doubtful whether adultery will affect her right to alimony pendente lite. she is being supported by her father with whom she resides: that defendant had been maltreating her and Cried to kill her.00 a month granted by the respondent Judge as alimony pendente lite to the private respondent is not excessive.000. through his counsel a check in the amount of P30.00 monthly commencing June 1976 and in lieu thereof to allow such support only to the extent of P1. 3. 1976. 10 It is also alleged that on May 26. 15 Later the petitioner was required to pay the support at the rate of P1. 6 It is true that the adultery of the wife is a defense in an action for support however. therefore.00 a month in compliance with the resolution of this Court dated October 9. private respondent Celia Ilustre-Reyes.000.00 a month which had accumulated since June 1976 within ten (10) days from notice of the resolution: 16 The private respondent acknowledged on November 20.000.00 a month for her support in accordance with their station in life.00. Mere affidavits may satisfy the court to pass upon the application for support pendente lite.000. 13 It is enough the the facts be established by affidavits or other documentary evidence appearing in the record. that she is presently unemployed and without funds. that all their conjugal properties are in the possession of defendant who is also president.000.879. 1976. Standard Mineral Products. Retained Earnings of P85. 1975. thus. In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case. the "private respondent was not asking support to be taken from petitioner's personal funds or wherewithal. the respondent Judge considered the following: On record for plaintiff's cause are the following: that she and defendant were married on January 18. FOR THE REASONS THAT: A.00. In view of the foregoing." 11 In fixing the amount of monthly support pendente lite of P4. 1978. the defendant attacked plaintiff. 1978 having received from the petitioner. To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate. IT IS ENOUGH THAT THE COURT ASCERTAIN THE KIND AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR OTHER DOCUMENTARY EVIDENCE APPEARING IN THE RECORDS. with paid-in capital of P200. Manager and Treasurer of their corporation namely: 1. in view of the merely provisional character of the resolution to be entered.00 a month. that as pointed out by the respondents in their comment. 12 The amount of support pendente lite was reduced to P4.". which was incorporated on February 9. 1959: presently with paid-in capital of P295. Development and Technology Consultant Inc.000. assets and liabilities of P757. defendant owns 99% of the stocks. 1978. 1958. but from the conjugal property—which. The complaint or legal separation contains allegations showing that on at least two occasions the defendant. March 1. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE. The contention of the petitioner that the order of the respondent Judge granting the private respondent support pendente lite in the amount of P4.000. It is to be noted however. 2. The allegation that the wife has committed adultery will not bar her from the right receive support pendente lite. which was incorporated on October 3. 9 the action for support was based on the obligation of the husband to support his wife. the support of P4.670. The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM THE HUSBAND DESPITE THE FACT THAT A CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND AGAINST HER. Inc.000.00 inasmuch as the children are in the custody of the petitioner and are being supported by him. this Court issued a temporary restraining order effective immediately against the enforcement of the lower court's order giving support pendente lite to private respondent in the sum of P4.00 a month is not supported by the allegations of the complaint for legal separation and by competent evidence has no merit. at the hearing of the application for support pendente lite before the Juvenile and Domestic Relations Court presided by the respondent Judge. 7 In the instant case. 14 The private respondent has submitted documents showing that the corporations controlled by the petitioner have entered into multimillion contracts in projects of the Ministry of Public Highways.000. In Quintana vs. Hon. Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents of record.000.ABUSE OF DISCRETION IN ISSUING SAID ORDERS.34.00. It is thus seen that the respondent judge acted with due deliberation before fixing the amount of support pendente lite in the amount of P4.000 defendant owns 99% of the stocks. the defendant doused Celia Ilustre-Reyes with a glass of grape juice. Leonor Ines-Luciano the petitioner did not present any evidence to prove the allegation that his wife.

128 Cal. Lapuz Sy. The dismissal order was issued over the objection of Macario Lapuz. and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street. which occurred during the pendency of the case. Issues having been joined. of the Juvenile and Domestic Relations Court of Manila. Cas. 155. . 97 S. Carmen O. She prayed for the issuance of a decree of legal separation.. for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief. July 27. which. abate the action? If it does.L. would order that the defendant Eufemio S. 659. The heirs cannot even continue the suit.. On 26 June 1969. by allowing only the innocent spouse (and no one else) to claim legal separation. that they had lived together as husband and wife continuously until 1943 when her husband abandoned her. Being personal in character. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim. counsel for deceased petitioner moved to substitute the deceased Carmen by her father. which the court resolved in the negative. In the absence of a statute to the contrary. Cass. namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code. 1871. 1 Corpus Juris. page 22). On 18 August 1953. Marriage is a personal relation or status. before final decree. filed counterclaims. 717. 1972 CARMEN LAPUZ SY. and in its Article 108. Danforth. respondent-appellee. and.Thousand Pesos (P4. 1933. dismissing said case for legal separation on the ground that the death of the therein plaintiff. On 9 June 1969. An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100. 5 The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.E. Strickland. that they had no child. The action is absolutely dead (Cass. dismissing the case.. the death of one of the parties to such action abates the action.. in an action for legal separation. by their reconciliation. Matter of Grandall. D.A. alleging. Eufemio. Macario Lapuz. represented by her substitute MACARIO LAPUZ. EUFEMIO S. in its Civil Case No. In his second amended answer to the petition. 2 In the body of the order. vs. 578. 452. Moss. filed after the effectivity of Republic Act 5440. 141. will abatement also apply if the action involves property rights? . 127. 185. No.00) a month should commence from March 1. on the ground of his prior and subsisting marriage. 830. the herein respondent Eufemio S. 3 Although the defendant below. Rep. 1.R. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. Counsel for Eufemio opposed the motion. which is without basis. the petitioner filed the present petition on 14 October 1969. McCurley. L-30977 January 31. Lapuz Sy died in a vehicular accident on 31 May 1969. while the petition for nullity has a voidable marriage as a pre-condition. Strickland v. Counsel for petitioner duly notified the court of her death. it follows that the death of one party to the action causes the death of the action itself — actio personalis moritur cum persona. who prayed for the affirmance of the said order.") 4 . Begbie v. Eufemio. 817. for review by certiorari of an order. for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction. 60 Pac. Eufemio should be deprived of his share of the conjugal partnership profits. that they were married civilly on 21 September 1934 and canonically on 30 September 1934. by providing that the spouses can. Wilson. Not only this. Begbie. because the marriage is dissolved. When one of the spouses is dead. EUFEMIO alias EUFEMIO SY UY. there is no need for divorce. Wilcon v. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969). 874. and that the death of Carmen abated the action for legal separation. in the main. Ark. Lapuz Sy (through her self-assumed substitute — for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court.:p Petition. 1979 without pronouncement as to costs. On 29 July 1969. Bates. 60 Md. 236.. stop or abate the proceedings and even rescind a decree of legal separation already rendered. counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Eufemio alleged affirmative and special defenses. 71. REYES J. 19 . 89 N. for legal separation pre-supposes a valid marriage. the court issued the order under review. G. May 8. on or about March 1949. J. 332. 49 L. SO ORDERED. he did not pursue them after the court below dismissed the case. the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment. req. The action is one of a personal nature. Rep.000. respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds.B. among others. petitioner-appellant. 81. abates the action. 111 Ill. if the death of the spouse takes place during the course of the suit (Article 244. 620. 17 Ann. the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived. 134 Am St. 1933.R. 41 N. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. 667. 2 Gilman. 73 Mich.W. 45 Am. and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. with one Go Hiok. But petitioner Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. Lapuz Sy. 101 SW 412. Carmen O. along with several other claims involving money and other properties.Y. abated the cause of action as well as the action itself. W. both over the persons of the parties to the action and of the subject-matter of the action itself. 20387. celebrated according to Chinese law and customs. Wren v. 196 N. McCurley v. The same was given due course and answer thereto was filed by respondent. 1 Corpus Juris 208). petitioner Carmen O. H. 80 Ark. Danforth v. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding. Manila. created under the sanction of law. trial proceeded and the parties adduced their respective evidence. does the death of a party abate the proceedings? The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage. alias Ngo Hiok. 72. The first real issue in this case is: Does the death of the plaintiff before final decree. herein respondent Eufemio S. dated 29 July 1969. that they acquired properties during their marriage. D. 208. Section 3).

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz. decreeing said legal separation. respectively. during which the children were enrolled in a school in Davao.: In an action for legal separation brought by Armando Medel against Rosario Matute. 14190 of the Court of First Instance of Manila — decision was. 17. Branch X. of the Civil Code. (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. And furthermore. 8 and 4 years of age. (2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated. after due hearing:chanroblesvirtuallawlibrary “(1) to issue an order awarding the custody of the above-named children to the herein movant. of the Revised Rules of Court: SECTION 1. chan roblesvirtualawlibraryand “(2) to order Armando Medel. death producing a more radical and definitive separation. Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration. the court shall order. Death of party. were then 16. Ernesto Medel — which action was docketed as civil case No. and actions to recover damages for an injury to person or property. Rules of Court). Moreover. from the estate. in whose house Rosario subsequently lived in order to be with her offspring. or within such time as may be granted. vs. Rule 100.” Said motion was based upon the ground that the children — three (3) of whom. HIGINIO B. Petitioner.A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation. Sec. hence. because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years. the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse". 106. and awarding to Armando the custody of their four (4) minor children. At the close of the then current school year. of the Rules of Court. father of the said minor children. a motion the prayer of which is of the following tenor:chanroblesvirtuallawlibrary “WHEREFORE. 1955. upon proper notice. 1955. even if the bigamous marriage had not been void ab initio but only voidable under Article 83. Rosario did not do so. Article 106 of the Civil Code provides: . 1955. Actions which may and which may not be brought against executor or administrator. Carmelita and Benito. and there could be no further interest in continuing the same after her demise. 10. such claims and disabilities are difficult to conceive as assignable or transmissible.. paragraph 2. A further reason why an action for legal separation is abated by the death of the plaintiff. real or personal. but the marriage bonds shall not be severed. Armando alleges that he consented thereto on condition that she would return the children to him within two (2) weeks. on June 10. After a party dies and the claim is not thereby extinguished. L-9325. No special pronouncement as to costs. requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. With his permission. namely. to attend the funeral of her father. as expressly provided in Section 2 of the Revised Rule 73. paragraph 2. Florencia. but actions to recover real or personal property. as Judge of the Court of First Instance of Manila. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other.. . finding Rosario guilty of the charge against her. provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law. 1952. their source being the decree itself. their mother. the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed.] ROSARIO MATUTE. is that these rights are mere effects of decree of separation. no decree can be forthcoming. (3) The custody of the minor children shall be awarded to the innocent spouse. for whom said court may appoint a guardian. these claims are merely rights in expectation. may be commenced against him. Art. and by their nature and intent. movant respectfully prays this Honorable Court. Hence. and ARMANDO MEDEL. Respondents. without prejudice to the provisions of article 176. and not in the annulment proceeding. on November 6. Rosario brought the children to Manila in April. they joined their father in Cebu. On the point. are vested exclusively in the persons of the spouses. Rule 87. From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property). by the very terms of the Civil Code article.. to warrant continuation of the action through a substitute of the deceased party. in deference to the preference expressed by the children (Sec. and the expected consequential rights and claims would necessarily remain unborn. all surnamed Medel. the legal representative of the deceased to appear and to be substituted for the deceased. rendered by the latter. so that before the finality of a decree. Instead. 1956. or to enforce a lien thereon. 6. leaving the children in the City of Davao under the care of his sister Pilar Medel. or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one.R. they can not survive the death of the plaintiff if it occurs prior to the decree. MACADAEG. ACCORDINGLY. Armando went to the United States. of the Code. or when she had been generally believed dead. However. CONCEPCION. If death supervenes during the pendency of the action. May 30. it is apparent that such action became moot and academic upon the death of the latter. HON. in said civil case No. respectively — do not want to go back to their 20 . or an interest therein. unless otherwise directed by the court in the interest of said minors. Manuel. 14190. upon the ground of adultery committed with his brother and her brother-in-law. without the decree such rights do not come into existence. Florencia. The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1. Manuel and Carmelita. within a period of thirty (30) days. the loss of right by the offending spouse to any share of the profits earned by the partnership or community. that automatically dissolved the questioned union. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator. or in March. 14 and 12 years of age. still the action for annulment became extinguished as soon as one of the three persons involved had died. Armando returned to the Philippines late in 1954. as provided in Article 87. to support said children by paying their school fees and giving them a reasonable allowance both items in an amount not less than P200 a month. J. under Section 17. but the offending spouse shall have no right to any share of the profits earned by the partnership or community. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. then 12. Thereafter. a claim to said rights is not a claim that "is not thereby extinguished" after a party dies. In fact. even if property rights are involved. Rule 3. [G. No. she filed. are all rights and disabilities that.

or person. chan roblesvirtualawlibraryand (6) although he had married the latter.” They are not “errors of jurisdiction”. a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal. to annul the said Order and to award the custody of the children to your Petitioner. therefore. The case before us is one of certiorari and prohibition. No such modification having been made. 1952. Petitioner herein maintains that the children should be under her custody. may choose which parent they prefer to live with. presided over by Hon. but errors in the exercise of the jurisdiction which the lower court admittedly had. The prayer in her petition. Rosario Matute is hereby ordered to deliver to Armando Medel the persons of the said minor children. governed by sections 1 and 2 of Rule 67 of the Rules of Court. insofar as it refers to the custody of the minor children. pursuant to Rule 100. it is conceded that children over ten (10) years of age. section 6. 1955. the duty to execute and implement said award. and. section 6. It is true that. but denying her motion for their custody and ordering her to deliver them to Armando within twenty-four (24) hours from notice. however. neither the writ of certiorari nor that of prohibition lies unless the act complained of has been performed “without or in excess of” jurisdiction “or with grave abuse of discretion”. it is clear to our mind that the affirmative assumption implicit in the order complained of cannot be characterized as an “abuse of discretion”. admittedly. constitute “merely errors of judgment. dated June 29. “Let copies of this Order be served immediately by the Sheriff of this Court. and that there is no other plain. incapacity or poverty” (Rule 100. dated June 22. as adjudged in the decision of November 6. at best.father. has acted without or in excess of its or his jurisdiction. that. Rules of Court). II. — When any tribunal. Furthermore. although she is free to seek a review of the order or decision awarding the custody of the minors to him. 167 and 168). accordingly. their aforementioned wish must. in effect. she having secured Armando’s consent before bringing the children to Manila. Thus. 21 . adequate and speedy remedy in the ordinary course of law. ordering Respondents. 1955. he may have committed in the appraisal of the situation — on which we do not express our view — in determining the best solution to said issue or which one of the litigants is best qualified or least disqualified to take charge of the children. it is a thing of the past. 1955. 2. but also on the parties themselves. to declare Petitioner guilty of contempt of court. a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the Defendant to desist from further proceedings in the action or matter specified therein. Macadaeg. Higinio B. Armando opposed this motion and countered with a petition to declare and punish Rosario for contempt of court. without costs. because he “is living with a woman other than” their mother. for the purpose of attending the funeral of their maternal grandfather. 1955. “Petitioner likewise prays for such other or further relief as may be just and equitable. said decision is never final. to wit:chanroblesvirtuallawlibrary whether said custody should be retained by Respondent Medel. demand their return at any time. not a present reality. Judge. if any. upon the ground that said order of June 29. the custody of said minors. whether exercising functions judicial or ministerial. on behalf and by authority of Respondent Medel. absolving Rosario from the charge of contempt of court. which is admittedly final and executory. not only on the lawyers appearing in this case. (Comments on the Rules of Court. we do not deem it necessary to pass upon the merits of such pretense. 1965. is as follows:chanroblesvirtuallawlibrary “WHEREFORE. — When the proceedings of any tribunal corporation board. Manuel. said decree is null and void and. or should be given to Petitioner herein. by virtue of said decision of November 6.” Pursuant to these provisions. Respondent had. Rosario instituted. Briefly stated. or with grave abuse of discretion and there is no appeal. by Moran. She cannot even question his authority to make it. and after hearing.” Thereupon. Neither does the aforementioned order of June 29. Petition for prohibition. would. Florencia. and to ask that they be placed under her charge. chan roblesvirtualawlibrary(3) the act of infidelity of which she had been found guilty in the decision of November 6. and she is bound to comply immediately with such demand. because:chanroblesvirtuallawlibrary (1) she is their legitimate mother and they wish to stay with her. be heeded. whose agent she. After due hearing the Court of First Instance of Manila. we issued the writ of preliminary injunction therein prayed for. does not involve “moral depravity”. at yet. nor any plain. He may. unless “the parent so chosen be unfit to take charge” of them “by reason of moral depravity. the present action for certiorari and prohibition with preliminary injunction. within twenty-four (24) hours from receipt of copy of this Order. for custody of the children. without bond. with costs. incapacity or poverty”. not their father Armando Medel. end adequate remedy in the ordinary course of law. and there is no appeal or any other plain. chan roblesvirtualawlibrary(4) in any event. in the sense that it is subject to review at any time that the Court may deem it for the best interest of said minors. The dispositive part of said order reads:chanroblesvirtuallawlibrary “IN VIEW OF THE FOREGOING. chan roblesvirtualawlibrary(5) Respondent Armando Medel is now unfit to have the children under his care. said award must stand. is. not only the authority. is hereby denied. There is no question but that Respondent Judge had jurisdiction to pass upon the issue raised by Petitioner’s motion of June 10. 1952. and adequate remedy in the ordinary course of law. speedy. They may be reviewed by appeal. habitual drunkenness. Carmelita. involve a grave abuse of discretion for it merely enforces the award made in the decision of November 6. had been issued with grave abuse of discretion. with costs. In the present action. unless and until reviewed and modified. “SEC. not by writ of certiorari or prohibition. chan roblesvirtualawlibrarybut. or officer exercising judicial functions. and Benito. chan roblesvirtualawlibrary(2) three (3) of the children are over ten (10) years of age. which took place in April. for he is living maritally with a woman by the name of Paz Jesusa Concepcion. all surnamed Medel. motion for the custody of the minor children. 1955. board.” Upon the filing of the petition. he is guilty of bigamy. or with grave abuse of discretion. speedy. whose parents are divorced or living separately. of the Rules of Court. Petitioner obtained and has the physical possession of the minors in a precarious manner. Petition for certiorari. Whatever mistakes. and the petition of Respondent Medel. It is no less true. Respondent Judge had. agents and other persons acting by and under their orders to cease and desist from enforcing in any way the order of the Respondent Court dated June 19. or officer as the law requires. their attorneys. issued an order. board. Again. 1955. hence. Without deciding whether the adultery committed by herein Petitioner with her own brother-in-law involves moral depravity. in view of her failure and alleged refusal to restore the custody of their children to him. against Armando and Judge Macadaeg. Petitioner merely obtained his permission to bring them to Manila. 1952. unless the parent chosen is unfit to take charge of their care by reason of “moral depravity. Such errors do not affect the legality or validity of the order complained of. Petitioner respectfully prays this Honorable Court to issue a writ of preliminary injunction upon Petitioner’s filing a bond in such sum as this Honorable Court may fix. pp. Which ever alternative taken by Respondent Judge would not vitiate his choice as being “without or in excess” of jurisdiction. also. Vol. after securing in the United States a decree of divorce dissolving his marriage with Petitioner herein. habitual drunkenness. 1952. much less a “grave” one. reading:chanroblesvirtuallawlibrary “SECTION 1. She holds it in the name. are without or in excess of its or his jurisdiction.

Consequently. 3. Santamaria. not a sufficient ground to justify a change of the name of herein petitioner. the spouses moved to Mawab Davao del Norte where. that in a partial decision entered on this Honorable Court on January 18. Hence. petitioner's motion for reconsideration of the said resolution having been denied on January 29. giving as reason or cause therefor her being legally separated from the husband Enrique R. REPUBLIC OF THE PHILIPPINES. transportation.Lastly. the procedure prescribed in Rule 103 of the Rules of Court for change of name has been observed. 106[2]. shall continue using her name and surname employed before the legal separation. these were not the causes upon which the petition was based. J. BARRERA. hence.” and the substantial accuracy of this statement is not contested. When legal separation has been granted. (Art. in Civil Case No. treating the petition as one for change of name. That in view of the fact that she has been legally separated from Mr. G. the petition is denied and the case dismissed. J. applying Rule 103 to this case. We are not prepared to hold. which dismissed the petition in CA-G. that the said partial decision is now final. That petitioner's maiden name is ELISEA LAPERAL. (Emphasis supplied) Note that the language of the statute is mandatory that the wife. Enrique Santamaria was given a decree of legal separation from her. even after she is decreed legally separated from her husband. HONORABLE ALEJANDRO E. Court of First Instance of Davao. Wherefore. vs. among other causes. The writ of preliminary injunction heretofore issued is hereby dissolved. rice and corn mill business. petitioner. MACADANGDANG. 22 . she naturally used. Santamaria. That during her marriage to Enrique R. 1973. in his capacity as Presiding Judge. 1981 ANTONIO MACADANGDANG. 1939. she married Mr. according to her own admission. to continue using her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. with costs against the Petitioner. But from the petition quoted in full at the beginning of these opinion. rendered Petitioner unfit to take charge of her children or made it unwise to place them under her care. Elisea L. however. 372. granting the petition. No. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the date of the filing of this petition. the one she has been using. Enrique R. petitioner respectfully prayed that after the necessary proceedings are had. it is desirable that she be allowed to change her name and/or be permitted to resume using her maiden name. who is a businesswoman decreed legally separated from her husband. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned. to Elisea Laperal. From a humble buy-and-sell business and sari-sari store operation in Davao City. Enrique R. the wife shall continue using her name and surname employed before the legal separation. that aside from her legal separation from Enrique R. It is doubtful. reconsidered its decision and granted the petition on the ground that to allow petitioner. instead of her maiden name. vs. 1960. her maiden name. said order further declares:chanroblesvirtuallawlibrary “ cralaw The facts remains that Defendant-movant is without means of livelihood and.R. there could be no more occasion for an eventual liquidation of the conjugal assets. 1962 ELISEA LAPERAL. respondents. even after the legal separation has been decreed. entitled 'Enrique R. that of Elisea L. ceased to live with him for many years. there being no severance of the vinculum. 356 of this Court. Davao del Norte.: On May 10. the fact of legal separation alone — which is the only basis for the petition at bar — is. for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372. the court. She has no home of her own to offer to her children. No. In its decision of October 31. prohibition and injunction with prayer for temporary restraining order presents for review the Court of Appeal's resolution dated December 21. this appeal by the State. Sp-02656-R. 16th Judicial District. is hereby set aside and the petition dismissed. L-38287 October 23. WHEREFORE. since her marriage. to continue using the name and surname she employed before the legal separation. relative to the custody of the children. Upon petitioner's motion. So ordered. however. to say the least. and that it is not sanctioned by the Rules of Court. It is SO ORDERED. THE COURT OF APPEALS. WHEREFORE. 1960. Civil Cod). Santamaria. 2. The appellee contends. she be allowed to resume using her maiden name of Elisea Laperal. the order of the lower court of December 1. the court denied the petition for the reason that Article 372 of the Civil Code requires the wife. oppositor. No. FILOMENA GAVIANA. she has also ceased to live with him for many years now. Santamaria. Santamaria. From the records. MAKASIAR. petitioner. or a modification of the award made in the decision of November 6. Without costs. with the issuance of the decree of legal separation in 1958. Santamaria. In the first place. 1958. that on March 24.R. SEBASTIAN. This finding is however without basis. the continued used of her husband surname may cause undue confusion in her finances and the eventual liquidation of the conjugal assets. The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which reads: ART. Tagum. Santamaria vs. their small business grew and expanded into merchandising. This is so because her married status is unaffected by the separation. however.: This petition for certiorari. L-18008 October 30. but only she would shelter them under the roof of her brothers. it appears that respondent Filomena Gaviana Macadangdang (hereinafter referred to as private respondent) and petitioner Antonio Macadangdang contracted marriage in 1946 after having lived together for two years. through hard work and good fortune. from these circumstances. without prejudice to such appropriate action as Petitioner may deem fit to take for the purpose of securing a review of the order of Respondent Judge of June 29. Santamaria' Mr. obviously no evidence to this effect had been adduced. the only reason relied upon for the change of name is the fact that petitioner is legally separated from her husband and has. Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. and the fact that they have ceased to live together for many years. that the petition is substantially for change of her name from Elisea L. that “poverty”. or both. The petition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Article 370 (should be 372) of the Civil Code. she lives on the charity of her brothers. Secondly. It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns extensive business interests.R. that a grave abuse of discretion was committed when the lower court impliedly deduced. Sala 1. 1952. 1955. the conjugal partnership between petitioner and her husband had automatically been dissolved and liquidated. and ROLANDO RAMA. Even. 1960. may prevail over the specific provisions of Article 372 of the New Civil Code with regards to married women legally separated from their husbands. No. Santamaria and has likewise ceased to live with him for many years. G. 433) a petition which reads: 1. There seems to be no dispute that in the institution of these proceedings. in our opinion. to wit: ELISEA LAPERAL. 4. 1974. whether Rule 103 which refers to change of name in general. in fact. trucking.

]. which complaint was docketed as Civil Case No. When she returned to Davao in 1971. 1973. 1973 [p.]. 118. ruled that the questioned January 4. 1973 which directed the clerk of court "to deliver. 1972. to administer the estate of the conjugal partnership pending the termination of the case [p. 4. Petitioner had averred that the Court of Appeals gravely erred in holding that respondent Judge's incomplete decision of January 4. respondent Judge issued an order directing plaintiff's counsel "to submit three (3) names for appointment as administrator. rec]. 1973. Petitioner opposed the aforesaid petition in a pleading dated February 21. rec. While the economic or material aspect of their marriage was stabilized the physical and spiritual aspects became shaky. 109 of the Court of First Instance of Davao have become moot and academic [p. 120. to prohibit respondent Judge from carrying out and executing the aforecited orders. 1973 had become final and executory and that the same Court committed an error in holding that the appointment of an administrator in the case below was proper. under receipt. 1973 as being "final and executory" as well as from enforcing the same in any manner whatsoever [pp. 133. 104-115. 524. the decision of January 4. 1973. three of whom were already of majority age and the other three were still minors as of the time this case was initiated in the lower court. through a notice of death and motion to dismiss. On February 9. rec]. this appeal from the resolution of December 21.abaca stripping. 158. private respondent agrees with petitioner's counsel that her husband's death has rendered the instant petition moot and academic [pp. The appellate court accordingly dismissed the petition [pp. Said petition sought to review. rec]. 1.00 from the lease rental of a portion of their conjugal property deposited by Francisco Dizon [p. the petition for appointment of administrator not having been acted upon. submitting therein three nominees for administrator [p. their once simple life became complicated and their relationship started to suffer setbacks. With their established businesses and accumulated wealth.. since the applicable law and jurisprudence afford the petitioner no valid cause to impugn the three questioned orders. counsel for petitioner. 1973 of respondent Judge. upon the other hand. 1973 of the order of September 20. Petitioner (then defendant) filed his answer with counterclaim dated May 31.00" [p. 135. despite the nonissuance of a supplemental decision regarding the division of the conjugal properties. 516. particularly the dissolution and liquidation of the conjugal community of property. furnishing a copy of said list to defendant. The Court of Appeals. 1971. rec. rec]. Since there is no complete list of the community property which has to be divided. rec]. 70-80. On August 7. the trial court handed down its decision. 1980. They were blessed with six children. rec]. 1973 decision of the lower court had become final and. judgment is hereby rendered ordering the legal separation of plaintiff and the defendant. and 23 .00 for her support. real estate and others. has always maintained that — 1. 1973 had become final and executory when the petitioner failed to appeal therefrom within the reglementary period of 30 days from receipt thereof.000. Then and there. in its resolution of December 21. when required to comment on the aforesaid motion. herein private respondent filed a motion for appointment of administrator and submission of complete fist of conjugal assets by defendant. if possible. 102. reiterating therein his ruling that the decree of legal separation had become final [p. she learned of the illicit affairs of her estranged husband. In effect. This motion for reconsideration was denied in the order of October 13. she decided to take the initial action. such division to be embodied in a supplemental decision. CA rec. 100. this case and Civil Case No. 1973. who will take over the administration and management of all the conjugal partnership properties. October 13. 109 and entitled "Filomena Gaviana Macadangdang vs. private respondent (plaintiff therein) instituted a complaint for legal separation in the Court of First Instance of Davao. 1971 [p. 1973 be reconsidered by not proceeding with the appointment of an administrator of the conjugal properties of the parties [p. the dispositive portion of which states thus: Wherefore.]. private respondent filed a motion praying that she be allowed to withdraw P10. who shag be given three (3) days from receipt thereof to present his observations and objections to said recommended persons or entity. 122. 1973. Married life for them became so intolerable that they separated in 1965 when private respondent left for Cebu for good. moved for a resolution of this case although she believes that petitioner's death has posed new intervening circumstances that would affect the entire purpose in filing the same. Antonio Macadangdang" [P. 1973 with prayer that he be allowed to continue administering the conjugal properties in accordance with law [p. 116. and act as guardian of the minor children. 141. rec. 126-127. 1979 and as a consequence thereof. On October 13. Petitioner brought the case to the Court of Appeals in a petition for certiorari and prohibition with writ of preliminary injunction and/or temporary restraining order filed on December 18. consequently. Atty.]. and to prohibit him from treating.].000. reiterating her previous petition and urging favorable action thereon "to impede unlawful sequestration of some conjugal assets and clandestine transfers" by petitioner [p. Branch VI I I at Tagum. 522. Respondent Judge denied the aforesaid second motion for reconsideration in his order of November 19. including in the list. private respondent filed another motion for the appointment of an administrator. Hence. Both accused each other of indulging in extramarital relations. Davao. Marcial Fernandez.]. 1973 [p. On October 23. rec] Petitioner then filed a motion for reconsideration dated October 3. 1973. a banking institution authorized to handle cases of administration of properties. pending the dissolution of the conjugal property. & 5. 156. On September 20. rec. rec]. for any way he had been disposing some of the properties or mortgaging them without sharing the plaintiff any part of the fruits or proceeds thereof until the court can appoint an administrator.]. 1973. 1973 and November 19. . rec] On January 4. Petitioner again filed his opposition dated September 6. rec. On April 28. On August 25. 1973.. 1973. On February 6. 1973. 1973. to plaintiff Filomena Gaviana Macadangdang and/or to her counsel. and who will submit a complete inventory of said properties so that the Court can make a just division. rec]. petitioner filed his second motion for reconsideration praying therein that the orders of September 20. rec. Respondent Judge acted on the aforesaid motion by issuing the order of August 13. or what under the old law was separation from bed and board — a mensa et thoro — with all the legal effects attendant thereto. set aside and declare null and void the orders of September 20.]. Private respondent.000. the defendant is ordered to pay to plaintiff P10. the amount of P10. private respondent filed a petition for appointment of administrator. informed this Court that petitioner Antonio Macadangdang died on November 30. after which the Court will select the administrator as may seem best suited for the purpose" [pp. to protect said properties from dissipation.]. Private respondent. rec. as prayed for by plaintiff in a separate petition. [pp. 128. 137. 1972 [P. 1973 and October 13. rec. regarding and construing his decision of January 4. the appointment of an administrator was valid and that the petition was not sufficient in substance.

. the settlement of the property rights being merely incidental (Wash. Vol. which necessitated the announcement of a forthcoming supplemental decision. 43 Wash. 2d 578. petitioner respectfully submits that the Decision was an incomplete judgment. 1973 had become final and executory. Westgate. 27B). Even American courts have made definite pronouncements on the aforestated legal effect of a divorce (legal separation) decree. 264 C.S. rec) In this single action. de Guzman. 37 So. 291 [1] p.. 126 Ind.J. 106. 69 So.-Novak vs. 27B. xxx xxx xxx [emphasis supplied]. whether the intestate heirs of the deceased could inherit from the innocent surviving spouse. 77 Utah 60.. Thus. 300 [11 p. the lower court resolved only the issue of legal separation and reserved for supplemental decision the division of the conjugal properties. is found this very succinct explanation of what an incomplete judgment is: . 286 F. 354. private respondent asked the trial court to decide if petitioner and she should be legally separated. not actually vested. The decree of legal separation shall have the following effects: 1) The spouses shall be entitled to live separately from each other. Superior Court of King Country. 2d. 313 Mich. C. Vol.-Shaffer vs. Should the children of both spouses predecease the surviving spouse.S.J. In Santos v.W. For this reason the trial had to be reopened and a supplemental decision had to be rendered . 2d 881. petitioner had consistently asserted the following reasons: 1. WE do not find merit in petitioner's submission that the questioned decision had not become final and executory since the law explicitly and clearly provides for the dissolution and liquidation of the conjugal partnership of gains of the absolute community of property as among the effects of the final decree of legal separation. as already stated. 193-194. It has been held that notwithstanding the division of property between the parties. [p. 1016. 20 N. by the very nature of the litigation. 751. 18. Of the aforesaid issues. Branch VIII in Tagum [pp.. rec]. the appointment of an administrator pending the actual division of said properties is proper being a must and an exercise of the sound discretion of the Honorable Presiding Judge in the Court of First Instance of Davao.. 97 P. and if they should. in view of Article 106. 262 P. 354. Under other authorities.-Karwowski vs.J. what properties would form part of the conjugal regime and which properties would be assigned to each spouse. 935.. 1053.S. 27B).160 Fla. 2d 677.—Pearce vs. 2d 851.S.S.S. on the decision in Civil Case No. 291 [1] p. 4 of the New Civil Code. 2d 423. Finston. 300 11] p. That upon trial of this action judgment be rendered ordering the legal separation of the plaintiff and the defendant and the division of all the assets of the conjugal partnership. An absolute divorce ordinarily terminates all property rights and interests. 157. Thus. 134 in the Court of First Instance of Davao for the settlement of the estate of the deceased petitioner herein. 2. Vol. Petitioner had further argued that — Inasmuch as the Decision failed to dispose of all the issues before the Court. 298. Article 106 of the Civil Code thus reads: Art. 2.C. construing Texas statute. Did petitioner's death on November 30. (at p. 291 [1] p. 291 P.J. In support of his contention that the Court of Appeals committed grave error in holding that respondent Judge's incomplete decision of January 4. Karwowski. Smith. The aforequoted provision mandates the dissolution and liquidation of the property regime of the spouses upon finality of the decree of legal separation. C. Whether the decision of the trial court dated January 4. 763. 291 Mich. 27B). 543. Shaffer.J. 109 finding herein petitioner guilty of concubinage and decreeing legal separation between him and his wife Filomena Gaviana Macadangdang (private respondent herein) had already become final and executory long before the herein petition was filed. particularly where the latter's share in the conjugal assets is concerned. 167. p.— Cooper vs.E. the same problems may come up again in another case of similar magnitude. Vol.S. and it has been held that the provisions of the decree should definitely and finally determine the property rights and interests of the parties (Wash. Vol. it has been held that the settlement of some pro-property rights between the parties is an incident of every decree of divorce where there is any property involved (Utah-Smith vs. This legal effect of the decree of legal separation ipso facto or automatically follows. 109 as well as on the instant petition. Novak. 1973 in Civil Case No. 27B). 133 N. Private respondent's complaint for legal separation and division of properties was a single complaint. emphasis supplied). 1 SCRA 1048. Vol.. 27A). There was but one case before the lower court.J. 2d. 154. Likewise. 1979 render the case moot and academic? Legal problems do not cease simply because one of the parties dies. 1 Wash.A. all property rights growing out of marital relations are settled and included in divorce proceedings (Ind. 62 S..—Spreckles vs. Some statutes providing for the division or disposition of the property of the parties to a divorce have been held mandatory and hence to require the court to decree some division of their property rights (U. and that any attempted reservation of such questions for future determination is improper and error (Mich. 465) and bars any action thereafter brought by either party to determine the question of property rights (Fla. 354 C. Cooper. Its first decision (of June 12. 1956) was. 860. 315 U. emphasis supplied). 27B. Such dissolution and liquidation are necessary consequences of the final decree. Ct. Vol.S.J. No. Considering also the far-reaching significance and implications of a pronouncement on the very important issues involved. emphasis supplied). 288 N. . the judgment decreeing legal separation—for the purpose of determining the share of each spouse in the conjugal assets.S..2. the purpose of a decree in divorce insofar as the disposition of property is concerned is to fix and make certain the property rights and interests of the parties (Mich-Westgate vs. Atkins vs. as an inevitable incident of. Generally speaking. 428) and a decree of divorce is an adjudication of all property rights connected with the marriage and precludes the parties as to all matters which might have been legitimately proved in support of charges or defenses in the action (U.S. she explicitly prayed: xxx xxx xxx 3. 264. Finston vs. 139. C. 2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated but the offending spouse shall have no right to any share of the profits earned by the partnership or community. and 3. without prejudice to the provisions of article 176. 2d 629. App. C. the questions for resolution have been narrowed down to the following: 1. CIR.W. The effect of the pendency of Special Proceedings No. Wakefield. but the marriage bonds shall not be severed. 263 C.-State ex rel. 86 L. incomplete the same not having resolved the issues involved in the litigation. 300 [1] p. of divorced persons in property of each 24 . C. this Court feels bound to meet said issues frontally and come out with a decisive resolution of the same. ed. the subject matter of a divorce action remains the marital status of the parties.

deems it proper for the guidance of the bench and bar to now declare as is clearly indicated from the compelling reasons and considerations herein-above stated:— that the court considers the better rule to be that stated in H. S. 46254. this Court further explained: The judgment "directing an accounting is appealable. computation and payment of his backwages less earnings elsewhere during his layoff) and that the only reason given in Fuentebella for the contrary ruling. 752-753.S. 1938 [Unpublished) and ruled that such a decision for recovery of property with accounting 'is not final but merely interlocutory and therefore not appealable and subsequent cases Adhering to the same Zaldarriaga vs. that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property.S.—Ex parte Scott 123 S. Accordingly. 70 F. D..W. [June 18. section 4 or to be implemented at the execution stage upon final affirmance on appeal of the judgment (as in Court of Industrial Relations unfair labor practice cases ordering reinstatement of the worker with accounting. That is to say.S. C. 126. Heacock Co. 1 SCRA 1188) must be now in turn abandoned and set aside. 1. (53 Phil...R. the contrary ruling in Fuentebella vs. 27A). that in this kind of a case an accounting is a mere incident to the judgment. Co. American Trading Co.. the court declares as abandoned the doctrine of Fuentebella vs. Prophylactic Brush Co. regardless of whether the accounting is the principal relief sought or a mere incident or consequence of the judgment which grants recovery and delivery of absconded properties as the principal relief and expressly provides that"a judgment or order directing an accounting in an action. et al. . Little. Helm. court held: "The part of a divorce suit regarding property is a part of the very divorce action itself" (Tex. Enunciating with directness and finality.. 752). which are dependent on the marriage (U. 23.W. speedy and inexpensive determination of every action militate against such a novel and unprecedented situation where a judgment on the merits for recovery of properties would be left dangling and would be considered as "interlocutory" and subject to revision and alteration at will for as long as the accounting ordered as a mere incident and logical consequence has not been rendered and acted upon by the trial court. just. xxx xxx xxx —that accordingly. inchoate rights of the wife in the husband's property are usually cut off (Ky—Bowling vs. speedy and inexpensive determination of every action can for considering such judgments for recovery of property with accounting as final judgments which are duly appealable (and would therefore become final and executory if not appealed within the reglementary period) with the accounting as a mere incident of the judgment to be rendered during the course of the appeal as provided in Rule 39. at least where no proceedings have been taken to vacate or modify the decree by appeal until the statutory time therefor has expired (Kan. 2d 525. The law (Articles 106. 206 S. de Zaldarriaga vs. (is) a final judgment ..other. 76 Kan. Zaldarriaga which in turn cited the doctrine of Fuentebella vs. Court of Appeals. "the judgment . Carrascoso. Court of Appeals (L-33007. the remaining issue for Our resolution is the final disposition of their conjugal partnership of gains which partnership. "the general harm that would follow from throwing the door open to multiplicity of appeals in a single case is of lesser import and consequence". xxx xxx xxx If a judgment which directs solely an accounting is appealable notwithstanding that it "does not finally dispose of the action and the accounting has yet to be rendered to complete the relief sought.—Roberts vs. 2d. 42 Phil. 481 [19291. the clear mandate of Article 106 of the Civil Code and the aforequoted ruling in the Miranda case. Africa. etc. 27B).. 313. xxx xxx xxx The Court. App. vs. viz. 182 Ky 86) especially where by the terms of the decree all property obtained by either spouse from or through the other during the marriage is restored to such spouse (Tex.S. 697.W. Considering the aforestated well-established jurisprudence on the matter. shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. Capistrano.. Petitioner erred in invoking the case of Vda. by reason of the final decree. 536).. this Court explicitly stated: For the guidance of the bench and bar. 934... G. Mo. C. 264. Houston.C. Villanueva vs. xxx xxx xxx The Court's considered opinion is that imperative considerations of public policy and of sound practice in the courts and adherence to the constitutional mandate of simplified. 93 S. that an appeal lies from the rendition of the judgment as rendered . and (that) the order of the court for an accounting was based upon and is incidental to the judgment on the merits. however. 291 [1] p. 306. 559.W. vs. R. had been automatically dissolved. 1973. the decision of the trial court dated January 4. 133 Tex. Civ. 1973 decreeing the legal separation between then spouses Antonio Macadangdang and Filomena Gaviana Macadangdang had long become final and executory and the division of the conjugal property in a "supplemental decision" is a mere incident of the decree of legal separation. 1. Woodson.J. Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and appealable (without need of awaiting the accounting) and would become final and executory if not appealed within the reglementary period. 107 and 176 of the 25 . App. 1976]). unless the court granting the decree is without jurisdiction. Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as of January 4. In resolving the question of whether or not the judgment directing an accounting in an action for recovery of properties is final and appealable.J. one U. Enriquez. Vol. because the judgment which orders the delivery of properties does finally dispose of the action on its merits. rendered by the lower court [is] a judgment on the merits as to those questions. answers to certified questions conformed to. that the judgment . vs. No.E. Nov. pp. which We have already declared abrogated in the case of Miranda vs. 71 SCRA 295. Carrascoso which expressly reversed the Heacock case and a line of similar decisions (Africa vs. Fagan 92 P. In this case. Vol. xxx xxx xxx Imperative and controlling considerations of public policy and of sound practice in the courts to achieve the desideratum of just.—Cockrill vs." much more so is a judgment which orders accounting as a mere incident appealable. to wit. Civ.

1973 when the decree of legal separation became final. the law on intestate succession should take over in the disposition of whatever remaining properties have been allocated to petitioner. This procedure involves details which properly pertain to the lower court. shall be distributed in accordance with the laws of intestate succession in Special Proceedings No. The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the conjugal assets. the rules on dissolution and liquidation of the conjugal partnership of gains under the aforecited provisions of the Civil Code would be applied effective January 4. 134. The death on November 30. 26 . SO ORDERED.Civil Code) clearly spells out the effects of a final decree of legal separation on the conjugal property. WHEREFORE. poses a new problem which can be resolved simply by the application of the rules on intestate succession with respect to the properties of the deceased petitioner. Upon the liquidation and distribution conformably with the law governing the effects of the final decree of legal separation. Thus. THIS PETITION IS HEREBY DISMISSED. before the liquidation of the conjugal property is effected. 1979 of herein petitioner who was declared the guilty spouse by the trial court. WITH COSTS AGAINST PETITIONER'S ESTATE.