VII.

Legal Separation
Code
Cases

A. Article 55 FC, Article 57 Civil Derecho Penal, Vol. II, p. 569). True, two or more adulterous
acts committed by the same defendants are against the same
person the offended husband, the same status the union
of the husband and wife by their marriage, and the same
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.
community represented by the State for its interest in
GUADALUPE
ZAPATA
and
DALMACIO
maintaining and preserving such status. But this identity of the
BONDOC, defendants-appellees. First Assistant Solicitor
offended party, status society does not argue against the
General Roberto A. Gianzon and Solicitor Jaime de los Angeles
commission of the crime of adultery as many times as there
for appellant. Francisco M. Ramos and Moises Sevilla Ocampo
were carnal consummated, for as long as the status remain
for appellee Dalmacio Bondoc. Hernandez and Laquian for
unchanged, the nexus undissolved and unbroken, an
appellee Guadalupe Zapata.
encroachment or trespass upon that status constitutes a crime.
PADILLA, J.: In the Court of First Instance of Pampanga a There is no constitutional or legal provision which bars the filing
complaint for adultery was filed by Andres Bondoc against of as many complaints for adultery as there were adulterous
Guadalupe Zapata, his wife, and Dalmacio Bondoc, her acts committed, each constituting one crime.
paramour, for cohabiting and having repeated sexual
intercourse during the period from the year 1946 14 March
1947, the date of the filing of the complaint, Dalmacio Bondoc
knowing his codefendant to be a married woman (criminal case
No. 426). The defendant wife entered the plea of guilty and was
sentenced to suffer four months of arresto mayor which penalty
she served. In the same court, on 17 September 1948, the
offended husband filed another complaint for adulterous acts
committed by his wife and her paramour from 15 March 1947 to
17 September 1948, the date of the filing of the second
complaint (criminal case No. 735). On 21 February 1949, each
of the defendants filed a motion to quash the complaint of the
ground that they would be twice put in jeopardy of punishment
for the same offense. The trial court upheld the contention of the
defendants and quashed the second complaint. From the other
sustaining the motions to quash the prosecution has appealed.
The trial court held that the adulterous acts charged in the first
and second complains must be deemed one continuous
offense, the defendants in both complaints being the same and
identical persons and the two sets of unlawful acts having taken
place continuously during the years 1946, 1947 and part of
1948, and that the acts or two sets of acts that gave rise to the
crimes of adultery complained of in both cases constitute one
and the same offense, within the scope and meaning of the
constitutional provision that "No person shall be twice put in
jeopardy of punishment for the same offense.".
Adultery is a crime of result and not of tendency, as the
Supreme Court of Spain has held (S. 10 December 1945); it is a
instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union. Each sexual
intercourse constitutes a crime of adultery (Cuello Calon,

The notion or concept of a continuous crime has its origin in the

juridical fiction favorable to the law transgressors and in many a
case against the interest of society (Cuello Calon, Derecho
Penal, Vol. II, p. 521). For it to exist there would be plurality of
acts performed seperately during a period of time; unity of penal
provision infringed upon or violated; and unity of criminal intent
or purpose, which means that two or more violations of the
same penal provision are united in one and the same intent
leading to the perpetration of the same criminal purpose or aim
(Ibid. p. 520).In the instant case the last unity does not exist,
because as already stated the culprits perpetrate the crime in
every sexual intercourse and they need not to another or other
adulterous acts to consummate it. After the last acts of adultery
had been committed as charged in the first complaint, the
defendants again committed adulterous acts not included in the
first complaint and for which the second complaint was filed. It
was held by the Supreme Court of Spain that another crime of
adultery was committed, if the defendants, after their
provincional release during the pendency of the case in which
they were sent to prison to serve the penalty imposed upon
them(S. 28 February 1906; 76 Jur. Crim. pp. 208-210).
Another reason why a second complaint charging the
commission of adulterous acts not included in the first complaint
does not constitute a violation of the double jeopardy clause of
the constitution is that, if the second places complaint the
defendants twice in jeopardy of punishment for the same
offense, the adultery committed by the male defendant charged
in the second complaint, should he be absolved from, or
acquitted of, the first charge upon the evidence that he did not
know that his codefendant was a married woman, would remain
or go unpunished. The defense set up by him against the first
charge upon which he was acquitted would no longer be

available, because at the time of the commission of the crime

charged in the second complaint, he already knew that this
defendant was a married woman and he continued to have
carnal knowledge of her. Even if the husband should pardon his
adulterous wife, such pardon would not exempt the wife and her
paramour from criminal liability for adulterous acts committed
after the pardon was granted because the pardon refers to
previous and not to subsequent adulterous acts(Viada [5th ed.]
Vol. 5, p. 208; Groizard [2nd ed.] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint
for adultery, is hereby reversed and set aside, and trial court
directed to proceed with the trial of the defendants in
accordance with law, with costs against the appellees. Feria,
Pablo, Tuason and Jugo, JJ., concur. Paras, C.J., Bengzon and
Montemayor, JJ., concur in the result. Paras, C.J., Mr. Justice
Reyes voted for the reversal.

FELICIDAD P. MUOZ vs. JOSE DEL BARRIO. FELICIDAD P.

MUOZ, petitioner and appellant, vs. JOSE DEL BARRIO,
respondent and appellee. APPEAL from a judgment of the Court
of First Instance of Bulacan. Ysip, J. . Manuel Y. Macias for
petitioner and appellant. Jose del Barrio in his own behalf as
respondent and appellee.
FELIX, J.: Felicidad P. Muoz and Jose del Barrio were married
civilly before Judge Natividad Almeda Lopez of the Municipal
Court of Manila on September 24, 1942 and again canonically
on October 24 of that year before the Catholic Minister Fr.
Antonio Albrecht. Since their
marriage the couple lived together as husband and wife for the
ensuing six months in the house
of the husbands father at Rizal Avenue, Manila, and then
moved their residence to the
municipality of Maycawayan, Bulacan. Out of this union were
born Felix Luis del Barrio and Maria Teresa del Barrio who must
be actually 11 and 9 years old, respectively.
It seems that during their married life this couple had frequent
quarrels, on which occasions the husband maltreated his wife
by deed, and because the latter was unable to bear such
punishment, in 1947 they unceremoniously separated, the wife
staying in Meycawayan and the husband in the house of his
father at 2110 Rizal Avenue, Manila. Notwithstanding this
separation of dwellings they met each other in the City of
Manila, and the wife claims that in December, 1950, or January,
1951, and in September of the latter year she was again
maltreated by her husband. This moved her to institute the
present action alleging in the petition filed on October 26, 1951,
in the Court of First Instance of Bulacan, among other things,
that the system of conjugal partnership of gains governs her
marriage to the respondent; that no property has been acquired
during the marriage of the petitioner and respondent except a

portion of a residential land located in Meycawayan, Bulacan,

from which no rentals are derived; that respondent has made
several attempts on the life of the herein petitioner which
compelled her to live separately and apart from the respondent
since 1947; and that respondent has not provided support for
petitioner and their children. Hence she prays the court:
(a) that a decree be entered for the legal separation of petitioner
from
respondent;
(b) that petitioner be awarded the custody of their minor children
Felix del Barrio and Maria Teresa del Barrio by herein
respondent;
(c) that respondent be directed to contribute to the support of
said
children;
(d) that petitioner be allowed costs, plus attorneys fees in the
sum of P200 in this instance, to be charged against the conjugal
partnership property referred to in paragraph 4 above, pursuant
to Article 293 of the Civil Code of the Philippines;
(e) that whatever shall remain of said conjugal partnership
property after deduction of the expenses mentioned in the next
preceding paragraph, be divided and adjudicated in equal parts
to herein petitioner and respondent and the conjugal partnership
dissolved
and
liquidated;
and
(f) that petitioner be granted such further and complete relief as
may be just and equitable in the premises.
On November 12, 1951, respondent filed his answer to the
petition denying the averments made in his wifes pleading and
prayed the court that the petition be denied and dismissed for
lack of merit, it being contrary to moral and good customs and
not authorized or sanctioned by statute, praying further for such
other relief as provided by law, with costs de oficio.
After the issues were joined, the court, in compliance with the
provisions of Article 98 of the new Civil Code, took every
feasible step towards the reconciliation of the spouses, but His
Honor failed in his purpose by reason of the determined refusal
of the wife to yield to the efforts of the Judge to that end. Hence
the case proceeded with the intervention of the office of the
Provincial Fiscal of Bulacan. After hearing the Court rendered
decision the dispositive part of which, translated into English, is
as follows:
IN VIEW OF THESE CONSIDERATIONS, the Court is of the
opinion and so holds that the present complaint must be, as it is
hereby, dismissed for lack of merits; without costs.
Not satisfied with the outcome of her petition, Felicidad P.
Muoz appealed from said judgment, and in this instance her
counsel maintains that the lower court erred:
1. In not finding that respondent-appellee had made attempts on
the life of petitioner-appellant; 2. In not decreeing legal
separation and in dismissing petitioner-appellants action
without costs; and 3. In not awarding attorneys fees to
petitioner-appellant.
The new Civil Code prescribes the following:
Art. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage on

the part of the husband, as defined in the Penal Code; or

(2) An attempt by one spouse against the life of the other.
In the case at bar the alleged maltreatments to the wife by the
husband occurred before their separation a mensa et thoro in
1947 must not have amounted to said husbands attempts on
the life of his wife, since the latter did not institute any action for
the legal separation from him upon the effectivity of the Civil
Code on August 30, 1950, and this case was only brought to
court on October 26, 1951, after the alleged maltreatment of
September 1951 had taken place. Therefore, in this appeal we
only have to determine whether the maltreatments that
appellant suffered at the hands of the respondent after their
separation of dwelling, which allegedly occurred in December,
1950, or January, 1951, and September of the latter year,
furnish ground for the legal separation applied for under
paragraph 2 of Article 97 of the Civil Code.
In appellants brief mention is made of the testimonies of Jovita
Faustino, a tenant of apartment No. 2068 Ipil St., Manila, owned
by appellants father, Felix Muoz, of Meycawayan, Bulacan,
and referring to the quarrel that the spouses had in March of
1950; of Faustino Mallari, patrolman in the Manila Police
Department, referring to the spouses encounter in December,
1950, or January, 1951; of appellants counsel, Attorney Manuel
M. Macias, relative to the occasion in which the spouses met at
his office on or about September 30, 1951; and of appellant
herself. The maltreatment referred to by Jovita Faustino
consisted merely in appelles giving a fist blow on the face of
appellant. Patrolman Mallari did not witness the maltreatment
on which he testified, for he was called by appellant to intervene
in the quarrel between the spouses when it was already over,
and the only thing he noticed was that she was crying and that
there were certain scratches on her brow and cheeks and on
certain points of the neck which were blackened (ecchymosis).
About the quarrel spoken of by Attorney Macias, the latter
declared that appelle boxed his wife on the abdomen, pulled her
hair and had also twisted her neck when said attorney, Leoncio
Santos and Jose Enriquez separated petitioner and respondent.
An attempt on the life of a person implies that the actor in the
attempt is moved by an intention to kill the person against whom
the attempt is made, and after a careful examination of the
evidence produced by appellant we cannot make up our mind to
declare that the alleged maltreatments of respondent to his wife
were moved by such intent to kill. On the contrary, we share the
opinion of the trial judge who declared that said maltreatments
cannot constitute attempts on the life of appellant as provided in
Article 97, No.2, of the Civil Code of the
Philippines.
From the second edition of the Revised Penal Code by Dean
Vicente J. Francisco Book II,
part 1, pp. 671-672 we copy the following: In the prosecutions
for frustrated or attempted homicide, the intention to take life
must be proved with the same degree of certainty as is required
with respect to other elements of the crime, and the inference of
such intent should not be drawn in the absence of

circumstances sufficient to prove such intention beyond

reasonable doubt (People vs. Villanueva, 51 Phil., 448). It is
absolutely necessary that the homicidal intent be evidenced by
adequate acts which at the time of their execution were
unmistakably calculated to produce the death of the victim,
since the crime of frustrated or attempted homicide is one in
which, more than in any other case, the penal law is based
upon the material results produced by the criminal act. It is not
proper or just to attribute to the delinquent a specific intent to
commit the higher crime in the absence of proof to justify such a
conclusion (U.S. vs. Taguibao, 1 Phil., 16). Conformably to this
rule, therefore, an accused who, upon seeing a man plowing the
land which was the subject matter of a dispute, immediately
attacks the latter, inflicting blows upon his neck with the back of
the bolo, must be convicted of physical injuries, and not of
frustrated homicide, because the mere fact that the assault was
committed with the back instead of the cutting edge of the bolo
negatives the idea of homicidal intent and precludes the crime
from constituting frustrated homicide. (U.S. vs. Taguibao, 1
Phil., 16).
Nothing is more difficult to discover than intention, this being a
mental act; we are only able to deduce it from the external acts
performed by the agent, and when these acts have naturally
given a definite result, courts should not without clear and
conclusive proof, hold that some other result was intended (U.S.
vs. Mendoza, 38 Phil., 691, 693)> It is always to be
remembered that the first and simplest presumption which, as
stated above, the law draws with respect to human conduct, in
connection with acts of violence, is that the actor intended the
natural consequence of his acts; and this presumption should
be implied in a fair and rational way, with proper regard to all the
details of the act, and without the suppression of any of its
elements. *** Likewise, where the accused inflicted a scalp
wound with a hatchet and struck at his victim a second time, it
should not be inferred, from the mere fact that a hatchet in the
hands of an infuriated man is a deadly weapon, that the
accused really intended to kill (People vs. Villanueva, 51 Phil.,
488). When criminal liability is made to consist in the intention to
perform an act which was not realized, the facts from which it is
claimed that intention sprang must be such as to exclude all
contrary supposition. When this intention is not necessarily
disclosed by the acts performed by the defendant, greater
importance should not be given to such acts than that which
they in themselves import, nor should the defendants liability be
extended beyond that which is actually involved in the material
results of the act. (U.S. vs Mendoza, 38 Phil., 691).
In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest
Tribunal of the land said the following: Homicide; Criminal
intent. When the case affords no good reason for holding that
the assailants positively intended to kill the injured party in spite
of the persistent and repeated beatings they gave him, however
much they plainly demonstrated their intention of doing him
injury, by striking him in an inhuman manner on various parts of
his body, it is improper to classify the crime as either frustrated

or attempted homicide. A personal assault must be punished

according to its consequences and the harm done to the victim,
for the penal law in this class of crimes is only concerned with
the material results produced by the transgression, unless the
perverse intention of taking the victims life be clearly
manifested.
In the maltreatments complained of in this case, the respondent
only used at most his bare fists or hands and desisted from
giving further chastisement after the first blows were given at
the spur of the impulse. It is argued, however, that this is a civil
case and that appellant is only bound to prove her right of action
by preponderance of evidence and not by evidence beyond
reasonable doubt upon which a conviction for attempted
paricide would rest, and though we may, to a certain extent,
agree with counsel for appellant on this point, yet we cannot
help but declare that in so far as the intent to kill is concerned, it
must be established with clear and convincing evidence, and
that in the case at bar said intent has not been proved by such
evidence. Petitioner-appellant herself should not have been so
sure of her evidence when instead of the present action she
dared not cause the prosecution of her husband for attempted
parricide as a means of establishing her right to secure the legal
separation she applies for in this case. Wherefore, the decision
appealed from, being in conformity with the law and the
evidence of record, is hereby affirmed without pronouncement
as to costs. It is so ordered. Pea and Makalintal, JJ., concur.
Judgment affirmed.
FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C.
PEARANDA, 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 can not 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 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
supportpendente 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. Yap
(Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,
concur.
CARMEN LAPUZ SY, represented by her substitute
MACARIO
LAPUZ, petitioner-appellant,
vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY
UY, respondent-appellee. Jose W. Diokno for petitionerappellant. D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:p Petition, filed after the effectivity of Republic
Act 5440, for review by certiorari of an order, dated 29 July
1969, of the Juvenile and Domestic Relations Court of Manila,
in its Civil Case No. 20387, dismissing said case for legal
separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the action itself.
The dismissal order was issued over the objection of Macario
Lapuz, the heir of the deceased plaintiff (and petitioner herein)
who sought to substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for
legal separation against Eufemio S. Eufemio, alleging, in the
main, that they were married civilly on 21 September 1934 and
canonically on 30 September 1934; that they had lived together
as husband and wife continuously until 1943 when her husband
abandoned her; that they had no child; that they acquired
properties during their marriage; and that she discovered her
husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed
for the issuance of a decree of legal separation, which, among
others, would order that the defendant Eufemio S. Eufemio
should be deprived of his share of the conjugal partnership
profits.

In his second amended answer to the petition, herein

respondent Eufemio S. Eufemio alleged affirmative and special
defenses, and, along with several other claims involving money
and other properties, counter-claimed for the declaration of
nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage, celebrated
according to Chinese law and customs, with one Go Hiok, alias
Ngo Hiok.
Issues having been joined, trial proceeded and the parties
adduced their respective evidence. But before the trial could be
completed (the respondent was already scheduled to present
surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen
O. Lapuz Sy died in a vehicular accident on 31 May 1969.
Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the
"petition for legal separation" 1 on two (2) grounds, namely: that
the petition for legal separation was filed beyond the one-year
period provided for in Article 102 of the Civil Code; and that the
death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to
substitute the deceased Carmen by her father, Macario Lapuz.
Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review,
dismissing the case. 2 In the body of the order, 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, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was
denied on 15 September 1969.
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, the petitioner filed the present petition
on 14 October 1969. The same was given due course and
answer thereto was filed by respondent, who prayed for the
affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio
S. Eufemio, filed counterclaims, he did not pursue them after
the court below dismissed the case. 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.
But petitioner Carmen O. 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,
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, which is without basis, for even petitioner
asserted that "the respondent has acquiesced to the dismissal
of his counterclaim" (Petitioner's Brief, page 22). Not only this.
The petition for legal separation and the counterclaim to declare

the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the
action for legal separation converted into one for a declaration
of nullity by the counterclaim, for legal separation pre-supposes
a valid marriage, while the petition for nullity has a voidable
marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff
before final decree, in an action for legal separation, abate the
action? If it does, will abatement also apply if the action involves
property rights? .
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, by
allowing only the innocent spouse (and no one else) to claim
legal separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation
already rendered. Being personal in character, it follows that the
death of one party to the action causes the death of the action
itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs cannot
even continue the suit, if the death of the spouse takes place
during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass.
req., May 8, 1933, D. H. 1933, 332.") 4 .
Marriage is a personal relation or status, created under the
sanction of law, and an action for divorce is a proceeding
brought for the purpose of effecting a dissolution of that relation.
The action is one of a personal nature. In the absence of a
statute to the contrary, the death of one of the parties to such
action abates the action, for the reason that death has settled
the question of separation beyond all controversy and deprived
the court of jurisdiction, both over the persons of the parties to
the action and of the subject-matter of the action itself. For this
reason the courts are almost unanimous in holding that the
death of either party to a divorce proceeding, before final
decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2
Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17
Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128
Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for
separation and maintenance (Johnson vs. Bates, Ark. 101 SW
412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between
spouses shows that they are solely the effect of the decree of
legal separation; hence, they can not survive the death of the
plaintiff if it occurs prior to the decree. On the point, Article 106
of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following
effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed; .
(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, without prejudice to
the provisions of article 176;
(3) The custody of the minor children shall be awarded to the
innocent spouse, unless otherwise directed by the court in the
interest of said minors, for whom said court may appoint a
guardian;
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of
the innocent one shall be revoked by operation of law.
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), the loss of right by the offending spouse to any
share of the profits earned by the partnership or community, 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, are all
rights and disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the spouses;
and by their nature and intent, such claims and disabilities are
difficult to conceive as assignable or transmissible. Hence, a
claim to said rights is not a claim that "is not thereby
extinguished" after a party dies, under Section 17, Rule 3, of the
Rules of Court, to warrant continuation of the action through a
substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice,
the legal representative of the deceased to appear and to be
substituted for the deceased, within a period of thirty (30) days,
or within such time as may be granted...
The same result flows from a consideration of the enumeration
of the actions that survive for or against administrators in
Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought
against executor or administrator. No action upon a claim for the
recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but actions
to recover real or personal property, or an interest therein, from
the estate, or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal,
may be commenced against him.
Neither actions for legal separation or for annulment of marriage
can be deemed fairly included in the enumeration..
A further reason why an action for legal separation is abated by
the death of the plaintiff, even if property rights are involved, is
that these rights are mere effects of decree of separation, their
source being the decree itself; without the decree such rights do

not come into existence, so that before the finality of a decree,

these claims are merely rights in expectation. If death
supervenes during the pendency of the action, no decree can
be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims
would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a
declaration of nullity ab initio of his marriage to Carmen Lapuz,
it is apparent that such action became moot and academic upon
the death of the latter, and there could be no further interest in
continuing the same after her demise, that automatically
dissolved the questioned union. 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.
In fact, even if the bigamous marriage had not been void ab
initio but only voidable under Article 83, paragraph 2, of the Civil
Code, because the second marriage had been contracted with
the first wife having been an absentee for seven consecutive
years, or when she had been generally believed dead, still the
action for annulment became extinguished as soon as one of
the three persons involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of
the parties involved. And furthermore, 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", as expressly provided in
Section 2 of the Revised Rule 73, and not in the annulment
proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of
Juvenile and Domestic Relations is hereby affirmed. No special
pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando,
Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
ESTRELLA DE LA CRUZ,plaintiff-appellee, vs. SEVERINO DE
LA CRUZ,defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee. Manuel O.
Soriano and Pio G. Villoso for 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
Pias, 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.1wph1.t
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 stayed at the Patria Inn, but had already left for Manila
before her arrival. 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. He denied
having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was
employed as a cook in the home of the spouses from May 15,
1955 to August 15, 1958, and that during the entire period of her

employment she saw the defendant in the place only once. This
declaration is contradicted, however, by the plaintiff herself who
testified that in 1955 the defendant "used to have a short visit
there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife
and children, but admitted that in 1957, or a year before the
filing of the action, he started to live separately from his wife.
When he transferred his living quarters to his office in
Mandalagan, Bacolod City, his intention was not, as it never has
been, to abandon his wife and children, but only to teach her a
lesson as she was quarrelsome and extremely jealous
of every woman. 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, while in Mandalagan he
could pass the nights in peace. 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. Even the
plaintiff admitted in both her original and amended complaints
that "sometime in 1953, because of the expanding business of
the herein parties, the defendant established an office in the
City of Manila, wherein some of the goods, effects and
merchandise manufactured or produced in the business
enterprises of the parties were sold or disposed of". From the
time he started living separately in Mandalagan up to the filing
of the complaint, the plaintiff herself furnished him food and took
care of his laundry. This latter declaration was not rebutted by
the plaintiff.
The defendant, with vehemence, denied that he has abandoned
his wife and family, averring that he has never failed, even for a
single month, to give them financial support, 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, he was giving her around P500 a month for
support. In point of fact, his wife and children continued to draw
allowances from his office of a total ranging from P1,200 to
P1,500 a month. He financed the education of their children,
two of whom were studying in Manila at the time of the trial and
were not living with the plaintiff. While in Bacolod City, he never
failed to visit his family, particularly the children. His wife was
always in bad need of money because she played mahjong, an
accusation which she did not traverse, explaining that she
played mahjong to entertain herself and forget the infidelities of
her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard
Factory, corroborated the testimony of the defendant on the
matter of the support the latter gave to his family, by declaring in
court that since the start of his employment in 1950 as assistant
general manager, the plaintiff has been drawing an allowance of
P1,000 to P1,500 monthly, which amount was given personally
by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in
Manila. He came to know Nenita Hernandez when she was
barely 12 years old, but had lost track of her thereafter. His
constant presence in Manila was required by the pressing

demands of an expanding business. He denied having

destroyed the alleged note which the plaintiff claimed to have
come from Nenita, nor having seen, previous to the trial, the
letter exh. C. The allegation of his wife that he had a concubine
is based on mere suspicion. He had always been faithful to his
wife, and not for a single instance had he been caught or
surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his
powers of administration of the conjugal partnership, the plaintiff
declared that the defendant refused and failed to inform her of
the progress of their various business concerns. Although she
did not allege, much less prove, that her husband had
dissipated the conjugal properties, she averred nevertheless
that her husband might squander and dispose of the conjugal
assets in favor of his concubine. Hence, the urgency of
separation of property.
The defendant's answer to the charge of mismanagement is
that he has applied his industry, channeled his ingenuity, and
devoted his time, to the management, maintenance and
expansion of their business concerns, even as his wife threw
money away at the mahjong tables. Tangible proof of his
endeavors is that from a single cargo truck which he himself
drove at the time of their marriage, he had built up one business
after another, the Speedway Trucking Service, the Negros
Shipping Service, the Bacolod Press, the Philippine Texboard
Factory, and miscellaneous other business enterprises worth
over a million pesos; that all that the spouses now own have
been acquired through his diligence, intelligence and industry;
that he has steadily expanded the income and assets of said
business enterprises from year to year, contrary to the
allegations of the complainant, as proved by his balance sheet
and profit and loss statements for the year 1958 and 1959
(exhibits 1 and 2); 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.
It will be noted that the plaintiff does not ask for legal
separation. The evidence presented by her to prove
concubinage on the part of the defendant, while pertinent and
material in the determination of the merits of a petition for legal
separation, must in this case be regarded merely as an attempt
to bolster her claim that the defendant had abandoned her,
which abandonment, if it constitutes abandonment in law, 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, shall not affect the conjugal partnership, except that . .
. if the husband has abandoned the wife without just cause for
at least one year, she may petition the court for a receivership,
or administration by her of the conjugal partnership property, or
separation of property". In addition to abandonment as a
ground, the plaintiff also invokes article 167 of the new Civil
Code in support of her prayer for division of the matrimonial
assets. This article provides that "In case of abuse of powers of

administration of the conjugal partnership property by the

husband, the courts, on the petition of the wife, may provide for
a receivership, or administration by the wife, or separation of
property". It behooves us, therefore, to inquire, in the case at
bar, whether there has been abandonment, in the legal sense,
by the defendant of the plaintiff, and/or whether the defendant
has abused his powers of administration of the conjugal
partnership property, so as to justify the plaintiff's plea for
separation of property.
We have made a searching scrutiny of the record, and it is our
considered view that the defendant is not guilty of abandonment
of his wife, nor of such abuse of his powers of administration of
the conjugal partnership, as to warrant division of the conjugal
assets.
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. To
entitle her to any of these remedies, under article 178, there
must be real abandonment, and not mere separation. 1 The
abandonment must not only be physical estrangement but also
amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment "
is yet to be spelled out in explicit words, we nevertheless can
determine its meaning from the context of the Law as well as
from its ordinary usage. 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, namely, receivership, administration by her, or
separation of property, all of which are designed to protect the
conjugal assets from waste and dissipation rendered imminent
by the husband's continued absence from the conjugal abode,
and to assure the wife of a ready and steady source of support.
Therefore, physical separation alone is not the full meaning of
the term "abandonment", if the husband, despite his voluntary
departure from the society of his spouse, neither neglects the
management of the conjugal partnership nor ceases to give
support to his wife.
The word "abandon", in its ordinary sense, means to forsake
entirely; to forsake or renounce utterly. 2 The dictionaries trace
this word to the root idea of "putting under a bar". The emphasis
is on the finality and the publicity with which some thing or body
is thus put in the control of another, and hence the meaning of
giving up absolutely, with intent never again to resume or claim
one's rights or interests. 3 When referring to desertion of a wife
by a husband, the word has been defined as "the act of a
husband in voluntarily leaving his wife with intention to forsake
her entirely, never to return to her, and never to resume his
marital duties towards her, or to claim his marital rights; such
neglect as either leaves the wife destitute of the common
necessaries of life, or would leave her destitute but for the
charity of others." 4 The word "abandonment", when referring to
the act of one consort of leaving the other, is "the act of the
husband or the wife who leaves his or her consort wilfully, and

with an intention of causing per perpetual separation." 5 Giving to

the word "abandoned", as used in article 178, the meaning
drawn from the definitions above reproduced, it seems rather
clear that to constitute abandonment of the wife by the husband,
there must be absolute cessation of marital relations and duties
and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant
did not intend to leave his wife and children permanently. The
record conclusively shows that he continued to give support to
his family despite his absence from the conjugal home. This fact
is admitted by the complainant, although she minimized the
amount of support given, saying that it was only P500 monthly.
There is good reason to believe, however, that she and the
children received more than this amount, 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, whose declarations were not rebutted by the
plaintiff. And then there is at all no showing that the plaintiff and
the children were living in want. On the contrary, the plaintiff
admitted, albeit reluctantly, that she frequently played mahjong,
from which we can infer that she had money; to spare.
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.
In People v. Schelske, 6 it was held that where a husband, after
leaving his wife, continued to make small contributions at
intervals to her support and that of their minor child, he was not
guilty of their "abandonment", which is an act of separation with
intent that it shall be perpetual, since contributing to their
support negatived such intent. In re Hoss' Estate, supra, 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.
With respect to the allegation that the defendant maintained a
concubine, we believe, contrary to the findings of the court a
quo, that the evidence on record fails to preponderate in favor of
the plaintiff's thesis. The proof that Nenita Hernandez was the
concubine of the defendant and that they were living as
husband and wife in Manila, is altogether too indefinite. Aside
from the uncorroborated statement of the plaintiff that she knew
that Nenita Hernandez was her husband's concubine, without
demonstrating by credible evidence the existence of illicit
relations between Nenita and the defendant, the only evidence
on record offered to link the defendant to his alleged mistress is
exh. C. The plaintiff however failed to connect authorship of the
said letter with Nenita, on the face whereof the sender merely
signed as "D" and the addressee was one unidentified "Darling".
The plaintiff's testimony on cross-examination, hereunder
quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949
from Nenita?

A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the
handwriting of Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but,
my question is this: In view of the fact that you have never
received a letter from Nenita, you have ot sent any letter to her,
you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the
conjugal partnership property, the record presents a different
picture. There is absolutely no evidence to show that he has
squandered the conjugal assets. Upon the contrary, he proved
that through his industry and zeal, the conjugal assets at the
time of the trial had increased to a value of over a million pesos.
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. For "abuse" to
exist, it is not enough that the husband perform an act or acts
prejudicial to the wife. Nor is it sufficient that he commits acts
injurious to the partnership, for these may be the result of mere
inefficient or negligent administration. Abuse connotes willful
and utter disregard of the interests of the partnership, evidenced
by a repetition of deliberate acts and/or omissions prejudicial to
the latter. 7
If there is only physical separation between the spouses (and
nothing more), engendered by the husband's leaving the
conjugal abode, but the husband continues to manage the
conjugal properties with the same zeal, industry, and efficiency
as he did prior to the separation, and religiously gives support to
his wife and children, as in the case at bar, we are not disposed
to grant the wife's petition for separation of property. This
decision may appear to condone the husband's separation from
his wife; however, 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.
Therefore, 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.1wph1.t
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, to promote
healthy family life and to preserve the union of the spouses, in
person, in spirit and in property.
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, 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, new Civil
Code, Article 1432, old Civil Code): and in the latter case, it may
only be ordered by the court for causes specified in Article 191
of the new Civil Code. 8
Furthermore, a judgment ordering the division of conjugal
assets where there has been no real abandonment, the
separation not being wanton and absolute, may altogether slam
shut the door for possible reconciliation. The estranged spouses
may drift irreversibly further apart; the already broken family
solidarity may be irretrievably shattered; and any flickering hope
for a new life together may be completely and finally
extinguished.
The monthly alimony in the sum of P2,000 which was allowed to
the wife in 1958, long before the devaluation of the Philippine
peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the
defendant, by leaving the conjugal abode, has given cause for
the plaintiff to seek redress in the courts, and ask
for adequate support, an award of attorney's fees to the plaintiff
must be made. 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 . . . should be recovered."
However, an award of P10,000, in our opinion, is, under the
environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the
plaintiff and the defendant that the law enjoins husband and
wife to live together, and, secondly, exhort them to avail of
mutually, earnestly and steadfastly all opportunities for
reconciliation to the end that their marital differences may be
happily resolved, and conjugal harmony may return and, on the
basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees
separation of the conjugal properties, is reversed and set aside.
Conformably to our observations, however, the defendant is
ordered to pay to the plaintiff, in the concept of support, the
amount of P3,000 per month, until he shall have rejoined her in
the conjugal home, which amount may, in the meantime, be
reduced or increased in the discretion of the court a quo as
circumstances warrant. The award of attorney's fees to the
plaintiff is reduced to P10,000, without interest. No
pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L.,
Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles
and Fernando, JJ., concur.
ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner, vs. LUCITA
G. ONG, respondent.
AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for
Review seeking the reversal of the Decision 1 of the Court of
Appeals (CA) in CA G.R. CV No. 59400 which affirmed in
toto the Decision of the Regional Trial Court (RTC) Branch 41,

Dagupan City granting the petition for legal separation filed by

herein respondent, as well as the Resolution 2 of the CA dated
April 26, 2002 which denied petitioners motion for
reconsideration.
Ong Eng Kiam, also known as William Ong (William) and Lucita
G. Ong (Lucita) were married on July 13, 1975 at the San
Agustin Church in Manila. They have three children: Kingston,
Charleston, and Princeton who are now all of the age of
majority.3
On March 21, 1996, Lucita filed a Complaint for Legal
Separation under Article 55 par. (1) of the Family Code 4before
the Regional Trial Court (RTC) of Dagupan City, Branch 41
alleging that her life with William was marked by physical
violence, threats, intimidation and grossly abusive conduct. 5
Lucita claimed that: soon after three years of marriage, she and
William quarreled almost every day, with physical violence being
inflicted upon her; William would shout invectives at her like
"putang ina mo", "gago", "tanga", and he would slap her, kick
her, pull her hair, bang her head against concrete wall and throw
at her whatever he could reach with his hand; the causes of
these fights were petty things regarding their children or their
business; William would also scold and beat the children at
different parts of their bodies using the buckle of his belt;
whenever she tried to stop William from hitting the children, he
would turn his ire on her and box her; on December 9, 1995,
after she protested with Williams decision to allow their eldest
son Kingston to go to Bacolod, William slapped her and said, "it
is none of your business"; on December 14, 1995, she asked
William to bring Kingston back from Bacolod; a violent quarrel
ensued and William hit her on her head, left cheek, eye,
stomach, and arms; when William hit her on the stomach and
she bent down because of the pain, he hit her on the head then
pointed a gun at her and asked her to leave the house; she then
went to her sisters house in Binondo where she was fetched by
her other siblings and brought to their parents house in
Dagupan; the following day, she went to her parents doctor, Dr.
Vicente Elinzano for treatment of her injuries. 6
William for his part denied that he ever inflicted physical harm
on his wife, used insulting language against her, or whipped the
children with the buckle of his belt. While he admits that he and
Lucita quarreled on December 9, 1995, at their house in Jose
Abad Santos Avenue, Tondo, Manila, he claimed that he left the
same, stayed in their Greenhills condominium and only went
back to their Tondo house to work in their office below. In the
afternoon of December 14, 1995, their laundrywoman told him
that Lucita left the house.7
On January 5, 1998, the RTC rendered its Decision decreeing
legal separation, thus:
WHEREFORE, premises considered, judgment is hereby
rendered decreeing the legal separation of plaintiff and
defendant, with all the legal effects attendant thereto,
particularly the dissolution and liquidation of the conjugal
partnership properties, for which purpose the parties are hereby
ordered to submit a complete inventory of said properties so

that the Court can make a just and proper division, such division
to be embodied in a supplemental decision.
SO ORDERED.8
The RTC found that:
It is indubitable that plaintiff (Lucita) and defendant (William) had
their frequent quarrels and misunderstanding which made both
of their lives miserable and hellish. This is even admitted by the
defendant when he said that there was no day that he did not
quarrel with his wife. Defendant had regarded the plaintiff
negligent in the performance of her wifely duties and had
blamed her for not reporting to him about the wrongdoings of
their children. (citations omitted)
These quarrels were always punctuated by acts of physical
violence, threats and intimidation by the defendant against the
plaintiff and on the children. In the process, insulting words and
language were heaped upon her. The plaintiff suffered and
endured the mental and physical anguish of these marital fights
until December 14, 1995 when she had reached the limits of her
endurance. The more than twenty years of her marriage could
not have been put to waste by the plaintiff if the same had been
lived in an atmosphere of love, harmony and peace. Worst, their
children are also suffering. As very well stated in plaintiffs
memorandum, "it would be unthinkable for her to throw away
this twenty years of relationship, abandon the comforts of her
home and be separated from her children, whom she loves, if
there exists no cause, which is already beyond her endurance. 9
William appealed to the CA which affirmed in toto the RTC
decision. In its Decision dated October 8, 2001, the CA found
that the testimonies for Lucita were straightforward and credible
and the ground for legal separation under Art. 55, par. 1 of the
Family Code, i.e., physical violence and grossly abusive
conduct directed against Lucita, were adequately proven. 10
As the CA explained:
The straightforward and candid testimonies of the witnesses
were uncontroverted and credible. Dr. Elinzanos testimony was
able to show that the [Lucita] suffered several injuries inflicted
by [William]. It is clear that on December 14, 1995, she
sustained redness in her cheek, black eye on her left eye, fist
blow on the stomach, blood clot and a blackish discoloration on
both shoulders and a "bump" or "bukol" on her head. The
presence of these injuries was established by the testimonies of
[Lucita] herself and her sister, Linda Lim. The
Memorandum/Medical Certificate also confirmed the evidence
presented and does not deviate from the doctors main
testimony --- that [Lucita] suffered physical violence on [sic] the
hands of her husband, caused by physical trauma, slapping of
the cheek, boxing and fist blows. The effect of the so-called
alterations in the Memorandum/Medical Certificate questioned
by [William] does not depart from the main thrust of the
testimony of the said doctor.
Also, the testimony of [Lucita] herself consistently and
constantly established that [William] inflicted repeated physical
violence upon her during their marriage and that she had been
subjected to grossly abusive conduct when he constantly hurled

invectives at her even in front of their customers and

employees, shouting words like, "gaga", "putang ina mo,"
tanga," and "you dont know anything."
These were further corroborated by several incidents narrated
by Linda Lim who lived in their conjugal home from 1989 to
1991. She saw her sister after the December 14, 1995 incident
when she (Lucita) was fetched by the latter on the same date.
She was a witness to the kind of relationship her sister and
[William] had during the three years she lived with them. She
observed that [William] has an "explosive temper, easily gets
angry and becomes very violent." She cited several instances
which proved that William Ong indeed treated her wife shabbily
and despicably, in words and deeds.
xxx
That the physical violence and grossly abusive conduct were
brought to bear upon [Lucita] by [William] have been duly
established by [Lucita] and her witnesses. These incidents were
not explained nor controverted by [William], except by making a
general denial thereof. Consequently, as between an affirmative
assertion and a general denial, weight must be accorded to the
affirmative assertion.
The grossly abusive conduct is also apparent in the instances
testified to by [Lucita] and her sister. The injurious invectives
hurled at [Lucita] and his treatment of her, in its entirety, in front
of their employees and friends, are enough to constitute grossly
abusive conduct. The aggregate behavior of [William] warrants
legal separation under grossly abusive conduct. x x x 11
William filed a motion for reconsideration which was denied by
the CA on April 26, 2002.12
Hence the present petition where William claims that:
I) THE COURT OF APPEALS COMMITTED AN ERROR OF
LAW IN DISREGARDING CLEAR EVIDENCE THAT THE
PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY
THE PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF
REMOVING FROM PETITIONER THE CONTROL AND
OWNERSHIP OF THEIR CONJUGAL PROPERTIES AND TO
TRANSFER THE SAME TO PRIVATE RESPONDENTS
FAMILY.
II) THE COURT OF APPEALS COMMITTED AN ERROR OF
LAW IN DISREGARDING CLEAR EVIDENCE REPUDIATING
PRIVATE RESPONDENTS CLAIM OF REPEATED PHYSICAL
VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE
PART OF PETITIONER.13
William argues that: the real motive of Lucita and her family in
filing the case is to wrest control and ownership of properties
belonging to the conjugal partnership; these properties, which
include real properties in Hong Kong, Metro Manila, Baguio and
Dagupan, were acquired during the marriage through his
(Williams) sole efforts; the only parties who will benefit from a
decree of legal separation are Lucitas parents and siblings
while such decree would condemn him as a violent and cruel
person, a wife-beater and child abuser, and will taint his
reputation, especially among the Filipino-Chinese community;
substantial facts and circumstances have been overlooked

which warrant an exception to the general rule that factual

findings of the trial court will not be disturbed on appeal; the
findings of the trial court that he committed acts of repeated
physical violence against Lucita and their children were not
sufficiently established; what took place were disagreements
regarding the manner of raising and disciplining the children
particularly Charleston, Lucitas favorite son; marriage being a
social contract cannot be impaired by mere verbal
disagreements and the complaining party must adduce clear
and convincing evidence to justify legal separation; the CA erred
in relying on the testimonies of Lucita and her witnesses, her
sister Linda Lim, and their parents doctor, Dr. Vicente
Elinzanzo, whose testimonies are tainted with relationship and
fraud; in the 20 years of their marriage, Lucita has not
complained of any cruel behavior on the part of William in
relation to their marital and family life; William expressed his
willingness to receive respondent unconditionally however, it is
Lucita who abandoned the conjugal dwelling on December 14,
1995 and instituted the complaint below in order to appropriate
for herself and her relatives the conjugal properties; the
Constitution provides that marriage is an inviolable social
institution and shall be protected by the State, thus the rule is
the preservation of the marital union and not its infringement;
only for grounds enumerated in Art. 55 of the Family Code,
which grounds should be clearly and convincingly proven, can
the courts decree a legal separation among the spouses. 14
Respondent Lucita in her Comment, meanwhile, asserts that:
the issues raised in the present petition are factual; the findings
of both lower courts rest on strong and clear evidence borne by
the records; this Court is not a trier of facts and factual findings
of the RTC when confirmed by the CA are final and conclusive
and may not be reviewed on appeal; the contention of William
that Lucita filed the case for legal separation in order to remove
from William the control and ownership of their conjugal
properties and to transfer the same to Lucitas family is absurd;
Lucita will not just throw her marriage of 20 years and forego
the companionship of William and her children just to serve the
interest of her family; Lucita left the conjugal home because of
the repeated physical violence and grossly abusive conduct of
petitioner.15
Petitioner filed a Reply, reasserting his claims in his
petition,16 as well as a Memorandum where he averred for the
first time that since respondent is guilty of abandonment, the
petition for legal separation should be denied following Art. 56,
par. (4) of the Family Code. 17 Petitioner argues that since
respondent herself has given ground for legal separation by
abandoning the family simply because of a quarrel and refusing
to return thereto unless the conjugal properties were placed in
the administration of petitioners in-laws, no decree of legal
separation should be issued in her favor. 18
Respondent likewise filed a Memorandum reiterating her earlier
assertions.19
We resolve to deny the petition.

It is settled that questions of fact cannot be the subject of a

petition for review under Rule 45 of the Rules of Court. The rule
finds more stringent application where the CA upholds the
findings of fact of the trial court. In such instance, this Court is
generally bound to adopt the facts as determined by the lower
courts.20
The only instances when this Court reviews findings of fact are:
(1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is
manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee; (7)
when the findings are contrary to that of the trial court; (8) when
the findings are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the
petition as well as in the petitioners main and reply briefs are
not disputed by the respondent; (10) when the findings of fact
are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the
Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered, would
justify a different conclusion.21
As petitioner failed to show that the instant case falls under any
of the exceptional circumstances, the general rule applies.
Indeed, this Court cannot review factual findings on appeal,
especially when they are borne out by the records or are based
on substantial evidence.22 In this case, the findings of the RTC
were affirmed by the CA and are adequately supported by the
records.
As correctly observed by the trial court, William himself admitted
that there was no day that he did not quarrel with his wife, which
made his life miserable, and he blames her for being negligent
of her wifely duties and for not reporting to him the wrongdoings
of their children.23
Lucita and her sister, Linda Lim, also gave numerous accounts
of the instances when William displayed violent temper against
Lucita and their children; such as: when William threw a steel
chair at Lucita;24 threw chairs at their children;25 slapped Lucita
and utter insulting words at her; 26 use the buckle of the belt in
whipping the children;27pinned Lucita against the wall with his
strong arms almost strangling her, and smashed the flower vase
and brick rocks and moldings leaving the bedroom in
disarray;28 shouted at Lucita and threw a directory at her, in front
of Linda and the employees of their business, because he could
not find a draft letter on his table; 29 got mad at Charleston for
cooking steak with vetchin prompting William to smash the plate
with steak and hit Charleston, then slapped Lucita and shouted
at her "putang ina mo, gago, wala kang pakialam, tarantado"
when she sided with Charleston;30 and the December 9 and
December 14, 1995 incidents which forced Lucita to leave the
conjugal dwelling.31

Lucita also explained that the injuries she received on

December 14, 1995, were not the first. As she related before the
trial court:
q. You stated on cross examination that the injuries you
sustained on December 14, 1995 were the most serious?
a. Unlike before I considered December 14, 1995 the very
serious because before it is only on the arm and black eye, but
on this December 14, I suffered bruises in all parts of my body,
sir.32
To these, all William and his witnesses, could offer are denials
and attempts to downplay the said incidents. 33
As between the detailed accounts given for Lucita and the
general denial for William, the Court gives more weight to those
of the former. The Court also gives a great amount of
consideration to the assessment of the trial court regarding the
credibility of witnesses as trial court judges enjoy the unique
opportunity of observing the deportment of witnesses on the
stand, a vantage point denied appellate tribunals. 34 Indeed, it is
settled that the assessment of the trial court of the credibility of
witnesses is entitled to great respect and weight having had the
opportunity to observe the conduct and demeanor of the
witnesses while testifying.35
In this case, the RTC noted that:
Williams denial and that of his witnesses of the imputation of
physical violence committed by him could not be given much
credence by the Court. Since the office secretary Ofelia Rosal
and the family laundrywoman Rosalino Morco are dependent
upon defendant for their livelihood, their testimonies may be
tainted with bias and they could not be considered as impartial
and credible witnesses. So with Kingston Ong who lives with
defendant and depends upon him for support. 36
Parenthetically, William claims that that the witnesses of Lucita
are not credible because of their relationship with her. We do
not agree. Relationship alone is not reason enough to discredit
and label a witnesss testimony as biased and unworthy of
credence37 and a witness relationship to one of the parties does
not automatically affect the veracity of his or her
testimony.38 Considering the detailed and straightforward
testimonies given by Linda Lim and Dr. Vicente Elinzano,
bolstered by the credence accorded them by the trial court, the
Court finds that their testimonies are not tainted with bias.
William also posits that the real motive of Lucita in filing the
case for legal separation is in order for her side of the family to
gain control of the conjugal properties; that Lucita was willing to
destroy his reputation by filing the legal separation case just so
her parents and her siblings could control the properties he
worked hard for. The Court finds such reasoning hard to
believe. What benefit would Lucita personally gain by pushing
for her parents and siblings financial interests at the expense of
her marriage? What is more probable is that there truly exists a
ground for legal separation, a cause so strong, that Lucita had
to seek redress from the courts. As aptly stated by the RTC,
...it would be unthinkable for her to throw away this twenty years
of relationship, abandon the comforts of her home and be

separated from her children whom she loves, if there exists no

cause, which is already beyond her endurance. 39
The claim of William that a decree of legal separation would
taint his reputation and label him as a wife-beater and childabuser also does not elicit sympathy from this Court. If there
would be such a smear on his reputation then it would not be
because of Lucitas decision to seek relief from the courts, but
because he gave Lucita reason to go to court in the first place.
Also without merit is the argument of William that since Lucita
has abandoned the family, a decree of legal separation should
not be granted, following Art. 56, par. (4) of the Family Code
which provides that legal separation shall be denied when both
parties have given ground for legal separation. The
abandonment referred to by the Family Code is abandonment
without justifiable cause for more than one year. 40 As it was
established that Lucita left William due to his abusive conduct,
such does not constitute abandonment contemplated by the
said provision.
As a final note, we reiterate that our Constitution is committed to
the policy of strengthening the family as a basic social
institution.41 The Constitution itself however does not establish
the parameters of state protection to marriage and the family, as
it remains the province of the legislature to define all legal
aspects of marriage and prescribe the strategy and the
modalities to protect it and put into operation the constitutional
provisions that protect the same. 42 With the enactment of the
Family Code, this has been accomplished as it defines marriage
and the family, spells out the corresponding legal effects,
imposes the limitations that affect married and family life, as well
as prescribes the grounds for declaration of nullity and those for
legal separation.43 As Lucita has adequately proven the
presence of a ground for legal separation, the Court has no
reason but to affirm the findings of the RTC and the CA, and
grant her the relief she is entitled to under the law.
WHEREFORE, the petition is DENIED for lack of merit. Costs
against petitioner. SO ORDERED. Panganiban, C.J.
(Chairperson), Ynares-Santiago, Callejo, Sr., and ChicoNazario, JJ., concur.
VII. B. Defenses Article 56
Cases
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee, vs. URSULA SENSANO and MARCELO
RAMOS, defendants-appellants.Emilio
L.
Medina
for
appellants. Attorney-General Jaranilla for appellee.
BUTTE, J.: The appellants were sentenced by the Court of First
Instance of Ilocos Norte for the crime of adultery to three years,
six months and twenty-one days of prision correccional and
appealed to this court, assigning the following error: "The court
below erred in not holding that the offended husband contested
to the adultery committed by his wife Ursula Sensano in that he
refused to live with her after she extinguished her previous
sentence for the same offense, and by telling her then that she
could go where she wanted to and do what she pleased, and by

his silence for seven years notwithstanding that he was

informed of said adultery."
The facts briefly stated as follows:
Ursula Sensano and Mariano Ventura were married on April 29,
1919. They had one child. Shortly after the birth of his child, the
husband left his wife to go to the Province of Cagayan where he
remained for three years without writing to his wife or sending
her anything for the support of herself and their son. Poor and
illiterate, without relatives upon whom she could call, she
struggled for an existence for herself and her son until a fatal
day when she met the accused Marcelo Ramos who took her
and the child to live with him. On the return of the husband (in
1924), he filed a charge against his wife and Marcelo Ramos for
adultery and both were sentenced to four months and one day
of arresto mayor. The court, in its decision, stated the following:
"In the opinion of the court, the husband of the accused has
been somewhat cruel in his treatment of his wife having
abandoned her as he did." After completing her sentence, the
accused left her paramour. She thereupon appealed to this
municipal president and the justice of the peace to send for her
husband so that she might ask his pardon and beg him to take
her back. At the house of the president she begged his pardon
and promised to be a faithful wife it he would take care her
back. He refused to pardon her to live with her and said she
could go where she wished, that he would have nothing more to
do with her, and she could do as she pleased. Abandoned for
the second time, she and her child went back to her coaccused
Marcelo Ramos (this was in the year 1924) and they have lived
with him ever since. The husband, knowing that she resumed
living with her codefendant in 1924, did nothing to interfere with
their relations or to assert his rights as husband. Shortly
thereafter he left for the Territory of Hawaii where she remained
for seven years completely abandoning his said wife and child.
On his return to these Islands, he presented the second charge
of adultery here involved with the sole purpose, as he declared,
of being able to obtain a divorce under the provisions of Act No.
2710.
Article 344 of the Revised Penal Code, paragraphs 1 and 2, are
as follows:
Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of
lasciviousness. The crimes of adultery and concubinage shall
not be prosecuted except upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
Apart from the fact that the husband in this case was assuming
a mere pose when he signed the complaint as the "offended"
spouse, we have come to the conclusion that the evidence in
this case and his conduct warrant the inference that he
consented to the adulterous relations existing between the
accused and therefore he is not authorized by law to institute
this criminal proceeding.

We cannot accept the argument of the Attorney-General that the

seven years of acquiescence on his part in the adultery of his
wife is explained by his absence from the Philippine Islands
during which period it was impossible for him to take any action
against the accused. There is no merit in the argument that it
was impossible for the husband to take any action against the
accused during the said seven years. The judgment below is
reversed with costs de oficio.
Street and Ostrand, JJ., concur
JOSE
DE
OCAMPO, petitioner,
vs
SERAFINA
FLORENCIANO, respondent. Joselito J. Coloma for petitioner.
BENGZON, J.: Action for legal separation by Jose de Ocampo
against his wife Serafina, on the ground of adultery. The court of
first instance of Nueva Ecija dismissed it. The Court of Appeals
affirmed, holding there was confession of judgment, plus
condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100
and 101 of the New Civil Code, which for convenience are
quoted herewith:
ART. 100.The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a
collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to
take care that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal
separation was filed. As amended, it described their marriage
performed in 1938, and the commission of adultery by Serafina,
in March 1951 with Jose Arcalas, and in June 1955 with Nelson
Orzame.
Because the defendant made no answer, the court defaulted
her, and pursuant to Art. 101 above, directed the provincial
fiscal to investigate whether or not collusion existed between
the parties. The fiscal examined the defendant under oath, and
then reported to the Court that there was no collusion. The
plaintiff presented his evidence consisting of the testimony of
Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo
Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented
shows that "plaintiff and defendant were married in April 5, 1938
by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children
who are now living with plaintiff. In March, 1951, plaintiff
discovered on several occasions that his wife was betraying his
trust by maintaining illicit relations with one Jose Arcalas.
Having found the defendant carrying marital relations with

another man plaintiff sent her to Manila in June 1951 to study

beauty culture, where she stayed for one year. Again, plaintiff
discovered that while in the said city defendant was going out
with several other men, aside from Jose Arcalas. Towards the
end of June, 1952, when defendant had finished studying her
course, she left plaintiff and since then they had lived
separately.
"On June 18, 1955, plaintiff surprised his wife in the act of
having illicit relations with another man by the name of Nelson
Orzame. Plaintiff signified his intention of filing a petition for
legal separation, to which defendant manifested her conformity
provided she is not charged with adultery in a criminal action.
Accordingly, plaintiff filed on July 5, 1955, a petition for legal
separation."
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, because his action was not filed within
one year from March 1951 when plaintiff discovered her
infidelity. (Art. 102, New Civil Code) We must agree with the
Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court
found that in the night of June 18, 1955, the husband upon
discovering the illicit connection, expressed his wish to file a
petition for legal separation and defendant readily agreed to
such filing. And when she was questioned by the Fiscal upon
orders of the court, she reiterated her conformity to the legal
separation even as she admitted having had sexual relations
with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under
Art. 101, legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence,
any admission or confession made by the defendant outside of
the court. It merely prohibits a decree of separation upon a
confession of judgment. 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. 2 This is not occur.
Yet, even supposing that the above statement of defendant
constituted practically a confession of judgment, inasmuch as
there is evidence of the adultery independently of such
statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence
presented by the plaintiff. What the law prohibits is a judgment
based exclusively or mainly on defendant's confession. If a
confession defeats the actionipso facto, any defendant who
opposes the separation will immediately confess judgment,
purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she
"like also" to be legally separated from her husband, is no
obstacle to the successful prosecution of the action. When she
refused to answer the complaint, she indicated her willingness
to be separated. Yet, the law does not order the dismissal.
Allowing the proceeding to continue, it takes precautions

against collusion, which implies more than consent or lack of

opposition to the agreement.
Needless to say, when the court is informed that defendant
equally desires the separation and admitted the commission of
the offense, it should be doubly careful lest a collusion exists.
(The Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to
appear to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence of a
valid defense, for the purpose of enabling the other to obtain a
divorce. This agreement, if not express, may be implied from
the acts of the parties. It is a ground for denying the divorce.
(Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs.
Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged
to make it appear that a matrimonial offense had been
committed although it was not, or if the parties had connived to
bring about a legal separation even in the absence of grounds
therefor.
Here, the offense of adultery had really taking place, according
to the evidence. The defendant could not havefalsely told the
adulterous acts to the Fiscal, because her story might send her
to jail the moment her husband requests the Fiscal to
prosecute. She could not have practiced deception at such a
personal risk.
In this connection, 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. (Williams vs. Williams, [N. Y.] 40 N. E.
(2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231;
Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no
defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.]
46 Atl. Rep. 658.).
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. It will be remembered that she "left" him after
having sinned with Arcalas and after he had discovered her
dates with other men. Consequently, it was not his duty to
search for her to bring her home. Hers was the obligation to
return.
Two decisions3 are cited wherein from apparently similar
circumstances, this Court inferred the husband's consent to or
condonation of his wife's misconduct. However, upon careful
examination, a vital difference will be found: in both instances,
the husband had abandoned his wife; here it was the wife who
"left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's
petition we hereby reverse the appealed decision and decree a
legal separation between these spouse, all the consequent
effects. Costs of all instances against Serafina Florenciano. So
ordered. Paras, C. J., Padilla, Montemayor, Labrador,

Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez

David, JJ., concur.
SARGENT v. SARGENT. (No. 46-713.) (Court of Chancery of
New Jersey. Dec. 29, 1920.)
[Source: 114 Atlantic Reporter 428 (1920) keynotes 1-7 are a
summary of the holdings by the Atlantic Reporter. Spelling and
word use has been left as in the original. This is the report of
the Advisory Master of the Court of Chancery. In 1921, the
Court of Errors and Appeals upheld the ruling, but that opinion is
not included here; it can be found at 114 Atlantic Reporter 439
(1921) as well as in the New Jersey Equity Reports.]
1. Divorce 129(1)--Convincing evidence of adultery
between white woman and negro required.
In a husband's suit for divorce, adultery between the wife, a
cultured, refined, and modest appearing white woman, and a
negro, must be proved by evidence so convincing and compelling as to leave no doubt whatever of her guilt.
2. Divorce 129(10)- -Adultery not proved if circumstances
admit of interpretation favoring innocence.
To establish adultery in a suit for divorce, the circumstances
must be such as to lead the guarded discretion of a reasonable
and just mind to the conclusion of guilt, and if the
circumstances, singly or together, admit of two interpretations,
that interpretation which favors innocence should be adopted.
3. Divorcee 129(16)-Evidence insufficient to prove adultery.
In a husband's suit for divorce, evidence held not to show
adultery between the wife and a negro chauffeur.
4. Divorce 129(7)- Testimony of detectives, etc., carefully
scrutinized, and not relied on unless corroborated.
In a husband's suit for divorce on the ground of adultery, the
testimony of detectives, paid spies, and household servants,
though competent, should be scrutinized carefully and should
not be relied on unless corroborated.
5. Divorce 127(1)- When evidence circumstantial wife's
denial given same weight as that of others.
Where, in a divorce suit, it is the endeavor to establish
circumstances from which it is sought to draw an inference of
the wife's guilt of adultery, and her veracity is unimpeached, her
testimony in denial should be given the same weight as that of
any other witness, except as affected by her interest.
6. Divorce 125- Admissions of alleged paramour not
evidence against defendant.
In a husband's suit for divorce, an admission of the wife's
alleged paramour that they had committed adultery cannot be
received as evidence against the wife, but only goes to affect
the credibility of the alleged paramour in his denial of the
alleged adultery.
7. Divorce 45- -Husband held to have consented to adultery.
A husband who had reason to suspect his wife of an inclination
for illicit relations with a negro chauffeur, but did not discharge
the chauffeur or even warn the wife against intimacy with him,
and facilitated adultery between them by absenting himself from
home, and placed detectives in the home, suborned servants,

and received reports from them, etc., held to have consented to

the adultery, if committed. within Divorce act. 28.
Suit for divorce by Donald J. Sargent against Frances L.
Sargent. Decree for defendant.
Decree affirmed; 114 Atl. 439.
Merritt Lane, of Newark, and Henry Runyon and William Huck,
Jr., both of Jersey City, for petitioner.
Alexander Simpson, of Jersey City, for defendant.
FIELDER, Adv. M. The petition, filed August 2, 1919, charges
defendant with having committed adultery (a) on various days in
the month of November, 1917, with an unknown man at
petitioner's home on Kensington avenue, Jersey City; (b) at
times and places unknown, with a man or men unknown, as a
result of which she contracted gonorrhea; (c) from September,
1918, to July, 1919, the exact dates not being known to
petitioner, at petitioner's said home and at Port Richmond,
Staten Island, and in petitioner's automobile and at other places
unknown, all with Charles Simmons; (d) on July 11, 1919, at
petitioner's said home, with Charles Simmons. The answer, filed
September 3, 1919, denies the charges of adultery, and alleges
that petitioner communicated the venereal disease to
defendant, and that be conspired with detectives and servants
to falsely accuse defendant of adultery with Simmons, and that
petitioner solicited Simmons to commit adultery with her, and
afforded him opportunities to do so. On the hearing, no proof
was offered to show adultery with any man other than Simmons,
and with him the petitioner endeavored to show that defendant
committed three specific acts, the first at Jeffersonville, N.Y., on
or about October 14, 1918; the second at petitioner's
Kensington avenue home, on or about 1919; and the third at the
same place on July 11, 1919.
Before referring to the voluminous testimony tending to prove
these acts, the social status of the parties concerned must be
considered. Simmons, the alleged paramour, is a negro
chauffeur, employed by the petitioner from July, 1918, to July
11, 1919, to drive an automobile used by petitioner and his wife.
He is a coffee colored negro, showing the characteristics of his
race, save that his hair is straight; about 30 years old; about six
feet tall, and of slender build; intelligent, but speaking
ungrammatically, and I would say of not a prepossessing
appearance. As to his appearance, the three negro women who
testified for petitioner said that they did not consider him good
looking, one of them describing him as a "gawky Indian." He
was married, and from about the same month in 1913 to April 5,
1919. His wife was employed in the Sargent household as a domestic servant. Simmons and his wife lived in the Sargent home
from July, 1918, to April 5, 1919. Mr. Sargent appears to be
about 40 years old, and Mrs. Sargent a few years younger.
They were married September 22, 1909, and for 3 years prior to
July 11, 1919, had resided in their home on Kensington avenue,
in a fashionable part of Jersey City, He has the appearance,
manner, and bearing of a man of education and culture. That he
is a man of some wealth is apparent from the fact that be is
paying his wife $300 a month alimony pendente lite. He had

been master of a Masonic Lodge in his city and a member of

several social clubs, whose functions be attended with Mrs. Sargent. He and his wife moved in good social circles and
entertained and were entertained by people prominent in social,
religious, and financial life. She appears to be a woman of
modest demeanor and of refinement and education, and she
possesses beauty of face and form. She was a member of various women's organizations, of a Browning society, of musical
clubs, and she was a church attendant. There is no evidence
whatever to indicate that outside of her home, while in company
of men or women of her social circle, or in the company of the
corespondent, she misconducted herself in any way, or was
guilty of any act of impropriety, indiscretion, or even frivolity. Nor
is there any evidence to show any act in her home which might
subject her to suspicion or criticism, other than with this negro
chauffeur. All the evidence as to her conduct and acts, except
as to the Jeffersonville occurrence, relates to what happened in
her home, and it is upon such evidence I must rely to adjudge
her guilty of all or any of the three acts of adultery mentioned.
[1] The thought of this cultured, refined, and modest appearing
white woman in sexual relation with any negro is revolting to the
senses. The acts and conduct with which she is charged by
witnesses for petitioner are peculiarly contrary to the universal
teachings and practice of the white society to which she
belonged, which is absolutely opposed to any business or social
alliance between the races and association of the nature
charged against her with a black man, is repugnant to white
women of her social standing, is unnatural, and rarely found to
exist. So objectionable is it to the white race that in many states
of our Union marriage between the races is prohibited. To
convince me that defendant has departed from the traditions of
her race and has fallen so low in the human scale and has been
so grossly immoral as to place herself among the most debased
of womankind the evidence must be so convincing and compelling as to leave no doubt whatever existing in my mind as to her
guilt.
[2] Our courts have said that the burden of proof is upon him
who asserts the adultery, and that burden must be clearly sustained. To establish adultery the circumstances must be such as
to lead the guarded discretion of a reasonable and just mind to
the conclusion of guilt. The judgment must not be rash and
intemperate, moving upon appearances that are equally
capable of two interpretations. If the circumstances, taken both
singly and together, admit of two interpretations, that interpretation which favors innocence should be adopted (Berckmans v.
Berckmans, 17 N. J. Eq. 453: Culver v. Culver. 38 N. J. Eq. 163;
Hurtzig v. Hurtzig, 44 N. J. Eq. 329, 15 Atl. 537; Luderitz v.
Luderitz, 88 N. J. Eq. 103, 102 Atl. 661), and this rule our courts
have followed in determining the evidence insufficient to
establish adultery in many cases. Osborn v. Osborn, 44 N. J.
Eq. 257, 9 Atl. 698, 10 Aft 107, 14 Atl. 217; Brown v. Brown, 63
N. J. Eq. 348, 50 Atl. 608; Farrow v. Farrow, 70 N. J. Eq. 777, 60
Atl. 1103; Letts v. Letts, 79 N. J. Eq. 630, 82 Atl. 845, Ann. Cas.
1913A, 1236 ; Earl v. Earl, 81 N. J. Eq. 444. 86 Atl. 940; Cooper

v. Cooper, 82 N. J. Eq. 581, 91 Atl. 731; Id., 82 N. J. Eq. 660, 91

Atl. 732; McKenna v. McKenna, 84 N. J. Eq. 190, 96 Atl. 890.
[31 All the direct evidence to prove acts of familiarity to indicate
illicit inclination, to prove opportunity and to prove adultery,
comes from the lips of two white detectives and four negroes.
The detectives were employed by petitioner after he says he
was informed of his wife's relations with Simmons by one of the
four negroes, and the four negroes were employed as house
servants in and about the Sargent home, one of them being a
detective placed therein to spy on the wife. All these negroes
save one, and including the negro woman detective, are still in
the petitioner's pay.
I shall first consider the testimony tending to show inclination
and opportunity.
Ida Lewis, a negress, testified that she was employed at general
housework in the Sargent
home from some time in 1918, and still works there for the
petitioner; that previous to 1918 she had been in Mrs. Sargent's
employ, but had been discharged for stealing some trunks tilled
with linen and had been taken back; that Mrs. Sargent told her
she thought it perfectly proper for whites and blacks to
intermarry if they loved each other, and that witness disagreed
with her, and Mrs. Sargent argued in favor of mixing the races,
while witness argued against it; that Mrs. Sargent told witness
she thought Simmons handsome; that witness heard Simmons
curse and swear at Mrs. Sargent, who said she was afraid to tell
her husband about it; that Mrs. Sargent showed witness a
photograph (of a white man), and said it was the picture of her
lover or sweetheart, and said she did not love her husband; that
witness stood in the doorway of Mrs. Sargent's bedroom, saw
Mrs. Sargent in bed in her nightdress, with her bare feet sticking
out from under the covers, and Simmons standing at the foot of
the bed, and when he saw witness he ran into a closet, and
neither Mrs. Sargent nor the witness said anything to each
other; that on another occasion witness saw Simmons in Mrs.
Sargent's bedroom and Mrs. Sargent was dressed only in her
underwear, corsets, shoes, and stockings, and when witness
came to the open door, Simmons ran out past witness, and no
one said a word.
Charlotte Lunford, an uneducated negress, who does not know
her age, testified that she was employed at general housework
and as cook in the Sargent home from some time in 1916 until,
as she says, Mrs. Sargent drove her out of the house shortly
after July, 1918, when Simmons and his wife came there to
work, and she returned again in about three months, and still
works there for the petitioner; that Mrs. Sargent did not like her,
and witness did not like Simmons, or Simmons' wife, or Mrs.
Sargent's treatment of Simmons and his wife, because witness
had to wait on them; that a month after Simmons was employed
she observed acts of intimacy (although Mrs. Simmons was
then living at the house); that two months after Simmons was
employed she saw them drinking together in Mrs. Sargent's
bedroom several times, and witness was sent by Mrs. Sargent
for glasses and cracked ice (presumably .to the kitchen, where

Mrs. Simmons was working), and witness drank wine and

whisky with Simmons and Mrs. Sargent in the latter's bedroom;
that Simmons went to Mrs. Sargent's room every day and
sometimes three times a day, and witness saw Simmons in that
room lots of times, drinking wine, and several times when Mrs.
Sargent was in her nightdress with a robe over it, or was in bed;
that Mrs. Sargent told witness she thought, Simmons nice and
handsome; that witness once heard Mrs. Sargent call Simmons
"Sweetheart" and "Dearie" over the telephone, and she once
saw Simmons hug Mrs. Sargent, in the second story hall, after
Simmons had walked past witness in first, story hall to go up
stairs to Mrs. Sargent..
Viola Jones, a negrees, testified that she was employed at the
Sargent home as a nurse for the Sargent's adopted baby, from
the first Monday in June,. 1919, and still works there for the
petitioner; that she was a detective in the employ of the
detective agency petitioner had engaged. and was "planted" in
the house, and had done detective work in three other divorce
suits; that it was Mrs. Sargent's custom to breakfast in bed; that
once Mrs. Sargent told witness she wanted to see Simmons, as
she intended going out, and Simmons came to the bedroom
and stayed there five minutes, and in the presence of witness
got a drink of whisky, and invited Mrs. Sargent to have a drink,
too, and that Mrs. Sargent declined the whisky, but said she
would have wine, and Simmons got her a bottle of wine; that
Mrs. Sargent asked witness if she did not think Simmons
handsome; that Simmons took a bath on the attic floor where
witness' bedroom was located, and after taking the bath put on
a suit of Sargent's underwear and asked witness for powder,
which witness got and took to the open bathroom door and
handed to Simmons while be was in his undershirt and was
putting on his drawers; that in addition to a telephone extension
in the attic there was a "dictaphone" (dictagraph?) in her room,
placed there by the detectives, over which she and the
detectives could hear everything that happened all over the
house; that over the telephone extension she heard three
conversations between Mrs. Sargent and Simmons, once she
asked him to come to get something to eat, another time she
told him she could not talk to him because the servants were
listening, and in the third conversation she asked Simmons to
come to the horse, and he inquired if Mr. Sargent was there,
and she replied, "No," and Simmons came later.
Mack Jetter, a negro, testified: That be was employed by
petitioner in 1918 and until the spring of 1919, cutting grass and
removing garbage at the Sargent home, but is not now in
petitioner's employ. That on an occasion when he was engaged
in washing windows in the second story of the house, between
9 and 10 o'clock in the morning, Mrs. Sargent, from her
bedroom, called Simmons, who was downstairs, to come up,
and Simmons came up the back stairs and walked into the
room. That when Simmons went in witness was 10 feet away,
and then moved up to within 5 feet of the door, and beard
Simmons say to Mfrs. Sargent: "What do you want me for?" and
her reply: "You know what I want. Why didn't you come before?"

That the bedroom door was open sufficiently wide for witness to
see that Mrs. Sargent was lying in bed with her arm outstretched, and that Simmons took her hand, and that she pulled
him to her, and witness then walked away. That he never told
this story to any one up to the day he testified. In the first part of
his testimony he fixed the date of this occurrence as the spring
of 1919, and later on he said it was the latter part of October or
the first of November, 1918.
August S. Tienken, a detective employed by petitioner's
solicitors about the middle of May, 1919, was secreted in an
attic room in the house, with the knowledge of all the servants,
on eight or ten occasions from May 22 to July 11, two of such
occasions being when the solicitors had informed him that
Sargent would be away from home all night, and on one
occasion be remained in the attic roam three consecutive days
and nights. He had run an extension line from the house
telephone to his attic room, and he listened in on telephone
conversations. A signal wire had been run, under his direction,
along the attic stairs from a push button placed at the bottom of
those stairs at the second floor, to the attic room he occupied
and at his end there was a buzzer or flash. He had given
Charlotte instructions to press the button whenever she caught
Simmons and Mrs. Sargent in her bedroom under compromising conditions. He testified that the automobile went out a
great deal, and in June and July he had it trailed when Simmons
and Mrs. Sargent were in it; that while in his attic room be heard
mumbling sounds of conversation between Mrs. Sargent and
Simmons in her room five or six times, continuing from 25 to 40
minutes; that on one occasion he heard them talking and
laughing in her bedroom as late as 9:30 p. m. for 25 minutes;
that he could distinguish nothing that was said; that over the
telephone extension he heard Mrs. Sargent call Simmons
"Dearie"; that when he commenced operations May 22, he
talked with Charlotte. gave her instructions, and found her
faithful to him; that he has no record of the dates he was in the
house, or of the dates he heard the talks in Mrs. Sargent's
room, or of the dates he listened to telephone conversations.
Albert W. Wilsdon, a detective associated with Tienken,
commenced work on the case May 26, and installed signal
wires and the telephone extension. He stayed in the attic room
on four occasions, twice over night and the other two times for
but a few hours. He testified that he heard the mumbling voices
of a man and woman in Mrs. Sargent's room twice, once in the
morning and once in the evening; that he followed the
automobile on various occasions when Mrs. Sargent and
Simmons were in it, riding a bicycle or motorcycle. He could not
give dates for any of the occasions to which he testified, further
than to say they all occurred during the period from May 26 to
July 11.
Mrs. Sargent and Simmons positively deny all these alleged
occurrences.
[4] I think this case a striking example of the reason for the rule
that, while the testimony of detectives, paid spies and
household servants is competent, it should be scrutinized

carefully, and should not be relied on unless it is corroborated.

Cane v. Cane, 39 N. J. Eq. 148-150; Hurtzig v. Hurtzig, 44 N. J.
Eq. 329-334, 15 Atl. 537; McGrail v. McGrail, 48 N. J. Eq. 532,
22 Atl. 582, reversed 49 N. J. Eq. 348, 25 Atl. 963 ; Brown v.
Brown, 63 N. J. Eq. 348, 50 Atl. 608 ; Farrow v. Farrow, 70 N. J.
Eq. 777, 60 Atl. 1103; Slack v. Slack, 89 N. J. Eq. 589-594, 105
Atl. 894.
If this testimony is to be believed, it shows this woman to be a
reckless, abandoned adultress, careless, to the point of indifference, in her relations with Simmons, carrying on her liaison
with wide open doors, intent only on gratifying an abnormal, licentious desire, at all times of the day and night, giving no heed
to the presence of her servants, who came and went about the
house freely, attending to their household duties, and, indeed,
making the servants her associates and confidants in her illicit
affair with Simmons. The composite story is so improbable as to
be unbelieveable, and because of its incredibility and its source,
I decline to accept it as true. To accept such a story would be to
say that every woman in her home is at the mercy of servants
who, for pay or to satisfy a grudge, might relate a tale which
only their mistress and the alleged corespondent could deny.
[6] I know it has been said that the denial of the defendant is
entitled to but little weight, but I understand by that, that when
the guilt is indubitably established, the defendant's denial is of
little value. It would be an unfair rule that, with relation to testimony such as I have quoted, her denial under oath should be
cast aside merely because she is the defendant. I think the rule
is that, where there is an endeavor to establish circumstances
from which it is sought to draw an inference of her guilt and her
veracity is unimpeached, her testimony should be given the
same weight as any other witness, except only as affected by
her interest.
Let us see what the testimony I have been considering
amounts to. No definite date was given for any occurrence
testified to, which made refutation impossible except by a
circumstantial denial. The servant witnesses, with the exception
of Jetter, not only had ill feeling toward Mrs. Sargent and Simmons, but they were in petitioner's pay up to the time they
testified. None of the specific instances cited by the servants,
except Viola, tending to prove improper attachment between
Mfrs. Sargent and Simmons, appear to have occurred while the
detectives were in the house, and so, for the period of over
seven weeks while the detectives were there and Mrs. Sargent
and Simmons were under the closest surveillance, no act
transpired which the detectives thought of sufficient importance
to call them from their hiding place and furnish them with the
evidence they were eager to find and were there to find,
although petitioner was away from his home each business day,
and on at least one occasion prior to July 11 remained away
from home for a night or nights, and the defendant is pictured by
her servants as a woman devoured by a passion for a negro
servant, which she could not control. Simmons was at the
house daily, and the servant spies were on the watch to catch
him with Mrs. Sargent. When they went out in the automobile

they were followed by a detective, but, no evidence of what he

saw having been offered, the inference, of course, is that he
saw nothing wrong. I would not doubt that Simmons went
occasionally to Mrs. Sargent's room, especially during the
period he lived in the house. The duties of his position required
that he should receive orders from her, and perhaps on some of
these occasions Mrs. Sargent was not dressed in street costume. It is not strange that a servant like Simmons should have
the run of the house, and it is well known that familiarity with the
continuous presence of a servant in the house results in the
mistress being careless of her state of dress in his presence.
It was Simmons' conduct with Mrs. Sargent, as reported to
Sargent by Charlotte about May 3, 1919, which moved Sargent
to place detectives in his home, so that apparently Simmons
was the only man under suspicion, and he is the only man
against whom testimony was directed. That being so, I cannot
understand why it was thought necessary to run an extension
telephone line to the attic room to listen to conversations with a
man whose duties called him to the house daily, and to whom,
therefore, there would be little to say over a telephone,
especially of an incriminating nature. The two detectives testified prior to Viola. They spoke of but two mechanical devices
installed to aid in their work, namely, the extension telephone
line and the signal wire, and they made no mention of a
dictagraph, but Viola told of a "dictaphone," which she described
as an instrument, with a receiver in the attic, by means of which
she could hear all over the house, and over which she could
bear everything. Because of her testimony, and also because I
cannot see the necessity for an extension telephone line, I am
led to believe that the extension telephone was in reality a
dictagraph, an instrument with which the detectives, in the
nature of their business, must have been familiar and would be
likely to use. In any event, according to Viola, the dictagraph
was there, and as the detectives failed to mention it, the
inference is that they deliberately endeavored to suppress the
fact of its existence, because they heard nothing over it which
would incriminate Mrs. Sargent. The one spot in the house
where they surely would place the transmitting end of this
instrument was Mrs. Sargent's bedroom, and if Simmons was in
that room on the many occasions and for the length of time the
detectives say he was, they would not have had to testify to
"mumblings" from the room, but would have had actual conversations to report.
Another circumstance which indicates the improbability of the
testimony as to undue
familiarity and sexual intimacy between the persons in question
is the fact that during
practically the whole period covered by the witnesses from
whom I have quoted, Mrs.
Sargent was suffering from gonorrhea and its effect upon her
system. October 1, 1918,
Sargent went to a physician, and for six or eight months
thereafter he was under treatment for that venereal disease. A
few days after October 1 he told his wife he feared he had the

disease, and that he thought it a recurrence of an attack he had

had 12 years prior, before marriage, and October 9 he took her
to his physician, who told her she had the disease too. From
about the middle of October to early in January, 1919, Mrs.
Sargent was sick in bed as the result of the disease, and from
January to July she suffered from inflammatory rheumatism as
an after result, and was under the doctor's care and preparing
for an operation, which was performed September 3, 1919. I
pause here to say that I cannot determine from the evidence
whether the petitioner or the defendant had gonorrhea first. I
observe, however, that he was the one first spoke of having it;
that she apparently was not aware she had it until he took her to
his physician; that he was the first to seek treatment; that one of
his medical witnesses testified that it was not possible to have a
recurrence of the disease from an old attack 12 years after the
old attack had been cured, and that if the petitioner was sure be
had not contracted it from a woman other than his wife, it impresses me as strange that he did not employ his detectives in
October, 1918. It does not seem likely that during this period of
her illness and suffering, Mrs. Sargent would have indulged
continuously in intercourse with Simmons, and I note here that
the act of familiarity covered by Jetter's testimony, and which, if
true, would indicate that adultery was about to be committed,
occurred according to the date he last fixed, at a time when she
was sick in bed. I conclude this comment on the evidence
concerning inclination, desire, and opportunity with reference to
the fact that as to the telephone conversation testified to by
Charlotte, wherein that witness said she heard Mrs. Sargent call
Simmons "Dearie" or "Sweetheart," Charlotte was proved to
have told a falsehood. This was the only instance covered by
her testimony to which a date was attached, and defendant was
able to call three reputable and disinterested ladies to testify
that
on
the occasion
fixed
by
Charlotte,
the
telephone conversation did not occur.
I shall now take up the three specific acts of adultery which
petitioner's counsel contends have been proved. The first is
alleged to have occurred at Jeffersonville, N. Y., but is not set
out in the petition. The petitioner therefore could not have
learned of it until after his petition was filed, and be apparently
did not think his evidence sufficiently strong to amend his
petition and set it up. The testimony with reference to it was
given without objection from defendant's counsel. It appears
that Mrs. Sargent and her sister, Mrs. Kuchman, went be automobile from Jersey City to visit a sick friend, who was dying in a
sanitarium at or near Jeffersonville. The trip was planned by
petitioner, and Simmons drove the automobile. The party spent
the night of October 14, 1918, at a hotel in Jeffersonville, and
Mrs. Sargent and Mrs. Kuchman were assigned a room
together, and Simmons was assigned a room nearly opposite,
across a hall. The proof of the alleged adultery depends entirely
upon the testimony of Mrs. Elizabeth L. Lathrop, a resident of
New York City, who refused to come to this state to testify; her
evidence having been given before a master in New York City.
She had known the Sargents 5 years, had visited their home

and they had visited hers, and she called herself Mrs. Sargent's
friend. She also knows Simmons. She testified that before the
trip to Jeffersonville Mrs. Sargent told her that Simmons had a
great physical attraction for her, and she for him, and that she
"was going to have him"; that on this occasion Mrs. Sargent had
come to witness' home in her automobile with Simmons driving,
and that Mrs. Sargent told witness she (Mrs. Sargent) had told
Simmons she was going to tell witness of their attraction for
each other; that Mrs. Sargent wanted witness to go with her on
the automobile trip to Jeffersonville as chaperon, because she
(Mrs. Sargent) "intended to stay with him" (Simmons); that
witness told Mrs. Sargent she was crazy, and Mrs. Sargent said
she realized it, but could not help it because she felt that way
toward Simmons; that witness refused to go under such
conditions; that because of this statement by Mrs. Sargent,
witness then wrote Mrs. Sargent a letter, stating that she would
probably never see Mrs. Sargent again; that subsequently Mrs.
Sargent told her that she had taken the trip in question, but
never told her about staying with Simmons at Jeffersonville; that
in the spring of 1919 witness had painted some china for Mrs.
Sargent, and Simmons came to get it, and told witness that on
the occasion of the trip to Jeffersonville Mrs. Sargent had stayed all night with him at the hotel, and that she had tried to get
connecting rooms, but could not, and that Mrs. Sargent was in
his room, and that Mrs. Kuchman, who was on the trip with
them, made no objection to Mrs. Sargent staying in his room;
that in or about May, 1919, Simmons told her Mrs. Sargent was
about to discharge him, and he asked witness to find him a
place, which witness did, but Simmons would not take it; that
witness then sent for Mrs. Sargent, who came to witness' home
in her car with Simmons, when Mrs. Sargent told witness that
Simmons wanted to leave her employ, and Mrs. Sargent said
she was glad to have him go, and hoped he would, but witness
said nothing to Mrs. Sargent about what Simmons had told her
of the Jeffersonville trip; that after the raid she met Mrs.
Sargent, when Mrs. Sargent told her about the raid, and that
Simmons had been shoved into her room and the door locked
on the outside; that witness went on a two or three-day
automobile trip to Massachusetts July 4, 1919, with Mr. and
Mrs. Sargent (Simmons drove the car on this occasion); that
witness had been with Mrs. Sargent and Simmons in the
automobile on several occasions, and the only act of familiarity
she saw was that "more than once she (Mrs. Sargent) cast a
glance at him,
significant look, just as one might recognize any one," which the
witness would not have remarked except for what Mrs. Sargent
had told her about Simmons.
[6] Mrs. Lathrop's testimony is uncorroborated, and is denied
by Mrs. Sargent and Simmons. It amounts to this: That Mrs.
Sargent told her she intended to defile herself on this trip to
Jeffersonville by committing adultery with a negro and she
wanted Mrs. Lathrop to debase herself and to become a
particeps criminis by accompanying her, and that Simmons
afterwards told her the adultery had been committed (which

means that Mrs. Tuchman was a party to it), but that Mrs.
Sargent made no such admission. This uncorroborated story
cannot be accepted as proof of adultery, because the fact of the
actual commission of the act depends on what Simmons told
the witness, and Simmons' statement cannot be received as
evidence against Mrs. Sargent. Graham v. Graham, 50 N. J. Eq.
701, 25 Atl. 358; Kloman v. Kloman, 62 N. J. Eq. 153, 49 Atl.
810; Howard v. Howard, 77 N. J. Eq. 186, 78 AM 195. At the
most, it goes to affect his credibility in his denial. But this story is
so improbable I am loath to accept it. It is contrary to human
experience that the defendant should confide to another her
intention to commit adultery, and especially an act of so
revolting a nature, and it is also contrary to human experience
that if such confidence were given Mrs. Lathrop would not in
disgust promptly terminate her friendship with so degraded a
woman. But we find Mrs. Lathrop continuing her intimacy with
Mrs. Sargent, even after Simmons told her the act had been
committed.
In addition to Mrs. Sargent's denial of adultery at this time and
place, there are the supporting facts that a few days before this
trip Mrs. Sargent had discovered she had gonorrhea, and that
she had undergone an operation for the removal of a polypoid
growth at the neck of her womb, and her condition while at
Jeffersonville was such that she had to secure the service of a
physician, so that she could scarcely have been in a condition
to indulge in a night of sexual intercourse. In further
corroboration of Mrs. Sargent's denial is the testimony of Mrs.
Kuchman that she and her sister occupied the same room
together the whole night, and that Mrs. Sargent did not commit
adultery with Simmons. I consider this charge fully disproved.
The second act of adultery alleged depends wholly on a story
told by Charlotte Lunford. She did not fix the date of the incident
to which she testified, but it seems to have been about May 1,
1919. She testified that Mrs. Sargent and Simmons came home
about 9 p. m. and went to Mrs. Sargent's beds room, the
witness accompanying them; that Simmons brought a bottle of
wine and a bottle of whisky to the room, and witness made
some sandwiches, and the three sat in the bedroom eating and
drinking; that in opening the bottle, some wine was spilled on
the wall, furniture, and floor; that some time during the evening
Mrs. Sargent removed her clothing, and, wearing nothing but a
night gown, robe, and slippers, lay on the floor; that Simmons
removed his coat and leggings, and lay "like a dog" on the floor
beside Mrs. Sargent; that witness asked Simmons whether he
was not going upstairs to the servants' quarters to sleep, and he
replied, "No, I am going to sleep here;" that witness then went
upstairs, leaving Mrs. Sargent and Simmons in separate rooms
on the bedroom floor, and when she came down at 6 o'clock the
following morning, they were still in the separate rooms, each in
bed; that witness went back to her own room and slept until 8
o'clock, when Mrs. Sargent called her, and then Simmons came
up to the servants' bathroom, washed his face and hands, and
went out. Mrs. Sargent denies this story as related by Charlotte,
but says there was an occasion when wine was spilled in the

room in question. She says that when she left house that
morning to attend a function in New York she told Charlotte to
place a bottle of wine on ice because she expected to bring a
friend to spend the night; that she returned about 11 p. m.; but
the friend did not come with her; that Charlotte told her she had
not put the wine on ice, but she directed Charlotte to bring it to
her room, and when Charlotte opened the bottle the contents
spurted on the wall; that she told petitioner about it the next day;
that Simmons did not enter the house that night. Simmons also
denies the incident. The impression Charlotte's story makes on
my mind is that it is incredible. I cannot believe that this white
woman would entertain two negroes in her bedroom, and while
almost naked perform the antics testified to with Simmons, and
commit adultery practically in the presence of Charlotte. Bearing
in mind, too, that Charlotte allied herself with the detectives for
the purpose of furnishing evidence to the petitioner, and was
and still is in the pay of the petitioner, I refuse to accept her
uncorroborated story as true as against defendant's denial.
The third act of adultery is alleged to have occurred on the
night of July 11, 1919. This is the night on which the so-called
"raid" took place, and the proof depends on the testimony of
Charlotte, Tienken. and Wilsdon, denied or explained by Mrs.
Sargent and Simmons. The story told by the two detectives is
that they were concealed in the attic room that night; that they
had arranged the signals with Charlotte, and saw her on and off
during the evening; that at 9:15 Simmons came up to the attic,
tried the doors, including theirs, and went downstairs to the
bedroom floor; that they heard continued mumbling voices
coming from Mrs. Sargent's room; that at 9:50 they were outside
their room, looking down the attic stairs; and saw Mrs. Sargent,
in her nightdress and pink rube, walk past the foot of the attic
stairs, and that Simmons was behind her, and they heard her
say: "Stop, Charles;" that she went to the bathroom, remained
there five minutes, and returned to her room, from which
direction they continued to hear voices; that at 10:40 they were
on the way down the attic stairs, and saw Charlotte pressing the
button at the end of the signal wire, and heard some one cry,
"Charlotte, Charlotte;" that they rushed down the stairs to Mrs.
Sargent's room, found the door fastened, and Tienken locked
the door on the outside with a key he carried; that they heard
some one open a window inside the room, and Tienken ran
down one flight of stairs to the front dour, which he was delayed
in opening by a chain bolt thereon, and when he finally got out
he saw Simmons running down the street 500 feet away; that
Tienken then looked up at the window in Mrs. Sargent's room,
and saw her standing there in her nightdress and pink robe; that
when Tienken found Mrs. Sargent's room door fastened,
Wilsdon ran to a window, from which he saw Simmons jump
from a window in Mrs. Sargent's room and run away, and he
also saw Mrs. Sargent in her nightdress and pink robe that they
then telephoned Mr. Huck, petitioner's solicitor of record, who
arrived at the Sargent home in about 15 minutes.
I now pass to the version given by Mrs. Sargent and Simmons
as to what happened preceding Simmons' hasty exit from the

room. She had been out in her automobile with her sister and
niece, and on the way home had purchased a quantity of
groceries and vegetables, which made a number of parcels,
arriving home at 8:20. She went to her room,removed her hat
and coat, and came down to the kitchen, where Charlotte was.
Simmons made a couple of trips to and from the automobile,
bringing in the parcels, which Charlotte asked him to help her
unwrap and put away the wrappings. Charlotte told him she had
been sick all day and had been sleeping, and asked him to sit
awhile with her, which he consented to do. Charlotte then
prepared something for Mrs. Sargent and him to eat; Mrs.
Sargent having her meal in the dining room and Simmons his in
the kitchen. Mrs. Sargent was uneasy because Mr. Sargent was
to be away all night, and said she felt that some one was in the
house, and she told Simmons to try all the doors and windows
before he left, and to get some whisky to give Charlotte for her
illness. He took the car to the garage, and was back again
about 9 o'clock, and helped Charlotte with the parcels, spent
some time with her in the kitchen, got a bottle of whisky, which
he gave to Charlotte, and then proceeded to examine all the
doors and windows from cellar to attic, and when he came down
from the attic, Charlotte was standing in Mrs. Sargent's
bedroom door, and he stopped to report to Mrs. Sargent that
everything was all right in the house. Mrs. Sargent was sitting in
her room fully dressed, sewing. Charlotte, with a small glass of
whisky in her hand, stepped into Mrs. Sargent's room, placed
the glass on a dresser, and asked Simmons if he would like to
have a drink, and, upon Simmons replying that he would she
said: "There it is; get it;" and upon Simmons stepping in the
room, Charlotte stepped out and closed the door. Mrs. Sargent
called, "Charlotte, Charlotte, what are you doing?" and Charlotte
opened the door and said, "I was only funning." Mrs. Sargent
said, "How dare you do such a thing?" and Charlotte pulled the
door to again and the lock clicked. There was no lock or bolt of
any kind on the inside of the door (no witness except petitioner
testified that there was), and neither Mrs. Sargent nor Simmons
fastened the door. Then came the sound of running feet to the
door, and Simmons said the noise sounded to him like horses,
and he heard knocking on the door, and his name was called;
that a thousand thoughts were in his mind, and he did not know
whether there were robbers in the house or somebody was
going to be killed; that he knew he was locked in a room where
he had no right to be, and he followed his impulse and jumped
from the window.
Charlotte was a witness called by petitioner. Although she was
friendly to petitioner and an observer of and actor in all the
events which transpired the night of July 11, before, at, and after
the raid, she was not asked on her direct examination to tell of
that night, and her story was first brought out on
cross-examination. She swore that she knew the petitioner was
to be away that night, and that when the detectives came to the
house that morning they told her there would be a raid that
night; that Mrs. Sargent and Simmons ate their meal in the
kitchen, and had wine and whisky to drink; that Simmons

washed the dishes, and the three went up to Mrs. Sargent's

room, sat there and talked and drank; that Mrs. Sargent said
she felt as though some one was in the house, and Simmons
went out and examined the house; that after Simmons came
back he said he was going to have a good time, and Charlotte
went upstairs, where she remained 20 minutes (with the
detectives), and Mrs. Sargent called her, and she came down,
and the detectives came, too; that she went to Mrs. Sargent's
room, where Mrs. Sargent was in her nightdress and Simmons
was sitting on the foot of the bed; that she left the room and
remained in the hall, and 13 minutes afterwards she saw the
detectives in the hall at the room door; that the bedroom door
was open, and she closed it, and, after closing it, opened it
again halfway; that the detectives were then a yard away, and
one of them closed the door for the second time and locked it;
that she closed the door for the first time because she was
"funning" with Mrs. Sargent and Simmons.
We have sharply contradictory statements of the events on the
night in question, and the problem is to find where the truth lies.
The story told by Mrs. Sargent and Simmons is probable. The
circumstances surrounding the raid may have been exactly as
they describe, while discrepancies are apparent between the
story told by the detectives and that told by Charlotte, and there
are improbabilities in the stories told by the detectives and
Charlotte. The striking difference between the detectives and
Charlotte is that the detectives say the bedroom door was closed and fastened when they came downstairs, while Charlotte
says it was halfway open, and that the detectives stood by it
several minutes, and one of them closed and locked it on the
outside. If the door was open, as Mrs. Sargent, Simmons, and
Charlotte say it was, and it was true that Mrs. Sargent and
Simmons had been in the room from 9:15 to 10:40, and
Charlotte had seen Mrs. Sargent in the room undressed, why
did the detectives not walk in through the open door? The only
answer seems to be that the detectives' statement was not true;
that their hope of obtaining real evidence that night had not
been realized, and they proceeded to manufacture it by locking
the door. If Charlotte went upstairs after leaving Mrs. Sargent
and Simmons in the room, she must have seen the detectives,
and must have told them that their evidence was at hand, but
they did not come down. Twenty minutes later Charlotte says
Mrs. Sargent called her, and she went down. If Charlotte heard
the call, so did the detectives, and they could have come down
with Charlotte. Charlotte says they actually did come down with
her. The bedroom door was then open, and Charlotte walked in.
Mrs. Sargent was in bed, and Simmons was sitting on it.
Charlotte walked out, leaving the door open, and the detectives
were in the hall. Why did she not tell them to walk in? Their
evidence was at hand. Again, they saw Mrs. Sargent pass the
foot of the attic stairs in her nightdress, and knew from what she
said that Simmons was in the hall with her; they saw her go to
the bathroom, where she remained five minutes. Their evidence
was again at hand, and they could have caught her undressed,
and Simmons probably in similar attire. If their story is true, it is

incomprehensible why they waited from 9:15 to 10:40 to come

downstairs, and, when they finally did come, why they locked
the evidence in the room where they could not see it, instead of
breaking down the door. Detectives are usually not so delicate
that they hesitate at using force, and Tienken held a letter dated
June 19, 1919, signed by petitioner, covering just such an
emergency, for by it petitioner notified "all whom it might
concern" that Tienken and Mr. Huck, or either of them, were
authorized to act for petitioner in and about his residence as
though he were personally present. It may be argued that they
thought they had the evidence secure in the room, and that they
wanted Mr. Huck to see it. They must have known that in the
time which would elapse before Mr. Huck could arrive, the man
and the woman could clothe themselves, arrange the bed, and
dispose of all outward appearance of guilt, and also concoct
some explanation of their presence together. But the detectives
knew immediately that part of their evidence had gone out of the
window (and it should be noted that Simmons went at once and
must have been fully clad for it does not appear that any of his
clothing remained in the room) and both detectives saw Mrs.
Sargent at her window undressed. What could have been the
reason for keeping her in her room alone, and why not then
break down the door, catch her in disarray, with whatever
evidence of guilt there might be in the room, and confront her
with a charge of adultery before she had time to collect her
senses? There were three witnesses then present, and her
state of dress, if what they say is true, could not be explained
away. My conclusion is that these men, with Viola and Charlotte,
had been seeking evidence for seven weeks and had not found
it; that their employer had become impatient, and had absented
himself from home on this night for the express purpose of
providing the opportunity for an act of adultery, and Mr. Huck,
according to his testimony, expected to be called this night; that
Charlotte, who seems to have supplanted Viola as a detective,
and whose tale of acts of impropriety by Mrs. Sargent had
resulted in the employment of the detectives, and the detectives
had to "make good," and that when they found that Mrs.
Sargent and Simmons were not misconducting themselves,
they adopted the expedient of locking them in a room, using the
key which Tienken had been carrying for weeks for that very
purpose. I am not willing to accept the doubtful story of paid
spies, with its discrepancies and improbabilities, as evidence of
adultery between this white woman and this negro.
What happened when Mr. Huck came? Tienken unlocked the
door and Huck, Tienken, and Wilsdon entered the room. Mrs.
Sargent was fully dressed, except that Mr. Buck says her shoes
were unlaced or unbuttoned, which she denies, and I do not
consider it important whether they were or not. She had been
alone in the room 15 minutes or more, and she must have
known that she was under suspicion for having committed a
crime with a negro, and, whether she was innocent or guilty, she
must have been disturbed and excited when she faced Mr.
Huck. I can believe that Mr. Huck himself was not calm and
collected when under these trying conditions he confronted this

woman whom he had known socially. He said she was not in

her usual calm frame, but that she was neither hysterical nor
agitated. She said she was like a crazy girl, and Tienken testified she carried on awfully. She said that she immediately said
to Mr. Huck: "You of all men, how could you do such a thing?
Where will I go? What shall I do? I have done no wrong. Why
have you done this thing?" And Tienken said to her, "It's a fine
thing to have a nigger in your room," and she said: "I want that
man (Tienken) put out of my house," and told Mr. Huck she
wanted to talk with him alone. Petitioner's counsel argued that
the conversation which followed indicates her guilt because she
did not specifically assert her innocence. Mr. Huck and Mrs.
Sargent have not the same recollection of that conversation, but
I think it sufficient to say that Mr. Huck did not charge her with
adultery, nor ask her to explain Simmons' presence in her room,
and that there is nothing in what he testified she said, which can
be construed as an admission of guilt. Tienken testified that
prior to her private conversation with Mr. Huck she was
protesting her innocence and saying she had done no wrong.
She seems to me to have been an overwrought woman, not
knowing what she was saying, and mainly concerned with what
was to be done with her.
Petitioner's counsel argued that Mrs. Sargent's subsequent
conduct, taken in connection with all the evidence against her,
indicates guilt. He referred to the fact that about a month after
the raid she employed Simmons' wife as a domestic in her
household. This suit had then been commenced. She was
unstrung and ill, and was about to undergo an operation, and
was without domestic help, and she may have turned to Mrs.
Simmons at a time when, as everyone knows, servants were
difficult to secure; or it may have been that her experience with
servant spies had been such that she did not know whom to
trust, and she felt she would be safer with the corespondent's
wife than with any one else. But whatever her reason may have
been, it cannot be construed as any evidence of guilt with Mrs.
Simmons' husband.
Counsel also referred to the fact that in the latter part of the
month of August, 1919, Mrs. Sargent and her sister took an
automobile trip to Vermont to see her adopted child, and that
Simmous drove the car. Mrs. Sargent explains this occasion be
saying that her brother-in-law arranged the trip for her, sent her
in his car, and that he engaged Simmons for the trip because
Simmons had been to the Vermont town before and knew the
road; that before allowing Simmons to drive the car she asked
her counsel if it would be proper for her to go with him, and
received his opinion that it would, and that she scarcely spoke
to Simmons on the trip. It may not have been good judgment or
good taste to permit Simmons to go with Mrs. Sargent and Mrs.
Kuchman, but if Mrs. Sargent was innocent of the charges
against her, the fact that she did consent to make the trip with
him as chauffeur cannot militate against her, and I am unwilling
to convict her of the crime charged against her because of this
incident. Counsel referred to three interviews had between Mrs.
Sargent and petitioner's solicitors at the latter's office, at her

request, in September and October, 1919, at which Mrs.

Sargent asked the solicitors and her husband to drop the suit,
and he argued that because she did not at the interviews assert
her innocence of the charges made in the petition then on file,
such circumstance is an indication of her guilt. As to this, I think
it sufficient to say that the first interview was arranged because
Mrs. Sargent said she wanted to meet petitioner face to face
and talk with him, alone, her avowed purpose being to convince
her husband that his charges were groundless. At this interview
she asked her husband to talk with her alone, but he refused,
and he never granted her an opportunity to tell him her version
of the circumstances surrounding the raid. On this occasion her
answer in this suit, which contains a complete denial of the
charges made against her, was produced and read. Her
attempt to make an explanation to her husband having failed
and he and his solicitors having asserted their intention of
pressing the suit, the other interviews followed because she
said the publicity was killing her, and if petitioner insisted on
divorcing her, she begged his solicitors to consent to her going
somewhere to get the divorce which petitioner so much
desired. I do not know how Mrs. Sargent at these interviews
could farther have proclaimed her innocence than she had
already done by her answer, except by a reiteration of what her
answer contained, and if her husband refused to listen to the
explanation she desired to give him, of what use would it have
been to make it to his solicitors? Counsel also referred to
alleged admissions made by Simmons of many acts of adultery
with Mrs. Sargent. Such admissions were testified to by two
negroes, produced as witnesses on behalf of petitioner, one of
whom had been employed by petitioner's solicitors for the
purpose of obtaining such admissions. They are alleged to have
been made after the raid, and after the local newspapers had
advertised Simmons as a negro Lothario. As I have already
said, referring to the alleged admission to Mrs. Lathrop,
statements of this nature, if made by Simmons, are not
evidence against the defendant, and can only be considered as
affecting Simmons' credibility as a witness. I can disregard the
whole of Simmons' testimony, and find myself unconvinced of
the charges against Mrs. Sargent. I do not think, however, that
his testimony should be deemed entirely worthless, but that
what he said in court, under oath, should be entitled to some
weight, notwithstanding that on other occasions, when proud of
his notoriety, he may have boasted of his amatory prowess to
two supposed friends of his own race, who may have been
exciting him to flights of imagination, either through expressions
of envy, or by design to induce him to commit himself. Counsel
also argued that the explanation of Mrs. Sargent and Simmons
as to how they spent the time on the night of the raid from 8:20
to 10:40, failed to account for the whole period. The answer is
that both stated what they could recall of their movements, and
did not attempt to fix the time consumed in the performance of
each detail. The evidence on behalf of the petitioner as to what
they did does not stand the test of probability. Simmons may
very easily have consumed 2 hours and 20 minutes in the per-

formance of the various things which be and Charlotte say be

did, and, considering the testimony of all the witnesses, I am not
convinced that be was in Mrs. Sargent's room any length of time
before the door was closed on him.
The trial of this case consumed 4 1/2 days, and a mass of
testimony was taken. In stating these reasons for my conclusion
that the charges against Mrs. Sargent have not been sustained,
I have relied for the facts upon such portions of the testimony as
were written out during the progress of the trial, upon my trial
notes and upon my memory of the testimony. I have not referred
to all points made by counsel on both sides, such as the
Nevada suit and the photograph incident, because I feel that the
evidence to which I have not referred can be of no assistance to
me in determining the issue, and this review of the case is now
overlong.
[7] There is, however, one further question which requires
consideration. Section 28 of the Divorce Act (2 Comp. St. 1910,
p. 2040) provides: "If it appear to the court that the adultery
complained of shall have been occasioned by the collusion of
the parties, and done with an intention to procure a divorce, or
that the complainant was consenting thereto, then no divorce
shall be decreed."
If the first and second acts of adultery alleged have not been
proved and the petitioner relies on the third act, did his conduct
as to that alleged act amount to "consenting thereto"? About the
1st of May preceding the raid, Charlotte had given the petitioner
her version of the occurrence on which the second act of
adultery is based, and had also told him of acts of familiarity
between his wife and Simmons. Petitioner, therefore, had
reason to suspect her of an inclination for illicit relations with
Simmons, and, suspecting, he should have taken the step
which lay within his power to keep Simmons away from his
home, namely, discharge him and warn him never it come to his
house again. Instead, he retained Simmons in his employ. Thus
he gave Simmons the chance to be with his wife frequently in
the automobile and also an excuse for and opportunity to be at
his house at all times during the day when petitioner was absent
at his business, and petitioner purposely, on at least two occasions between May 22 and July 11, absented himself from
home for a night or nights and be did all this, if not believing that
defendant would commit adultery, at least to facilitate it. He
placed detectives in his home, suborned his servants, received
reports from his spies as to the progress of events, and on June
19, 1919, gave one of his detectives and Mr. Huck the letter
before mentioned, conferring on them full authority to act in and
about his residence, which letter the detective exhibited to Mrs.
Sargent after the raid. He threw no protection around his
wife. He did not even warn her against intimacy with Simmons,
but he left her in danger, and did nothing whatever to withdraw
her from Simmons' evil influence. For two months after he was
in possession of Charlotte's information he maintained friendly
intercourse with her as though nothing had occurred to shake
his faith in her, treating her as though conditions were not
unusual, even taking a two-day automobile trip with her a week

before the raid. Would an outraged husband, who had learned

that a negro was his wife's lover, want to be in the presence of a
wife who had so dishonored him, without an ulterior motive on
his part? He went to Vermont July 11, leaving his wife alone in
the house with the two detectives and Charlotte, who had
supplanted Viola as a detective and who was his pay. Charlotte
and the detectives knew there was to be a raid that night, and
Mr. Buck expected it. It is difficult to believe that petitioner did
not know it too. It is also difficult to resist the conclusion that be
wanted her to commit adultery. Certainly his conduct does not
indicate that he did not want her to. It can be said that be was
not anxious she should not, and it therefore follows that be was
willing she should.
Our courts have said that it is undoubtedly true that a man may
watch his wife without warning her of his intention to do so, but
it is equally true that he may not actually participate in a course
of action leading to her downfall. He may not, with his eyes
open, do that which may in some degree conduce to it. If he
sees what a reasonable man could not permit and makes no
effort to avert the danger, he must be supposed to see and
mean the result. Hedden v. Hedden, 21 N. J. Eq. 61 : Cane v.
Cane, 39 N. J. Eq. 148; Warn v. Warn, 59 N. J. Eq. 642, 43 Atl.
916; Brown v. Brown, 62 N. J. Eq. 29-65, 49 Atl. 589, reversed
63 N. J. Eq. 348-367, 50 Atl. 608; Delaney v. Delaney, 71 N. J.
Eq. 246, 65 Atl. 217: White v. White, 84 N. J. Eq. 512, 95 Atl.
197. If defendant committed adultery on the night of July 11, the
closing paragraph of Vice Chancellor Stevens' opinion, affirmed
by the Court of Appeals, in White v. White, supra, with but slight
change in the paragraph, represents; my view concerning the
petitioner, viz., if consent or willingness that the wife should
commit adultery is a mental state and is to be inferred from
conduct, it seems impossible to resist the conclusion that
petitioner did desire his wife to commit the offense,' and that,
helping as be did to afford the opportunity which brought about
the desired result, he was consenting thereto.
WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA
YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.Assistant City Fiscal Rafel A.
Jose for appellee.
REYES, J.B.L., J.: On July 14, 1955, William H. 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, from 1942 to 1945, at
the University of Sto. Tomas internment camp, 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, upon his release from internment; 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 complaint prayed
for confirmation of the liquidation agreement; for custody of the
children issued of the marriage; that the defendant be declared

disqualified to succeed the plaintiff; and for their remedy as

might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared
the wife in default, for failure to answer in due time, despite
service of summons; and directed the City Fiscal or his
representatives to
investigate, in accordance with Article 101 of the Civil Code,
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 City Fiscal or
his representative is also directed to intervene in the case in
behalf of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the
trial, and cross-examined plaintiff Brown. His questions
(strenuously objected to by Brown's counsel) elicited the fact
that after liberation, Brown had lived maritally with another
woman and had begotten children by her. Thereafter, the court
rendered judgment denying the legal separation asked, on the
ground that, while the wife's adultery was established, Brown
had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of the new Civil
Code, providing:
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation or of
consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
that there had been consent and connivance, and because
Brown's action had prescribed under Article 102 of the same
Code:
ART. 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.
since the evidence showed that the learned of his wife's
infidelity in 1945 but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose of
Manila to act as counsel for the defendant, who defaulted.
The court erred in declaring that there was condonation of or
consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard
to his marital relation with Lilia Deito, who was not his wife, the
Assistant Fiscal acted as consel for the defaulting wife, "when
the power of the prosecuting officer is limited to finding out
whether or not there is collusion, and if there is no collusion,
which is the fact in the case at bar, to intervene for the state
which is not the fact in the instant case, the truth of the matter
being that he intervened for Juanita Yambao, the defendantappellee, who is private citizen and who is far from being the
state.".

The argument is untenable. Collusion in matrimonial cases

being "the act of married persons in procuring a divorce by
mutual consent, whether by preconcerted commission by one of
a matrimonial offense, or by failure, in pursuance of
agreement to defend divorce proceedings" (Cyclopedia Law
Dictionary; Nelson, Divorce and Separation, Section 500), 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, or agreed upon, to enable appellant to obtain the
decree of legal separation that he sought without regard to the
legal merits of his case. One such circumstance is obviously the
fact of Brown's cohabitation with a woman other than his wife,
since it bars him from claiming legal separation by express
provision of Article 100 of the new Civil Code. Wherefore, such
evidence of such misconduct, were proper subject of inquiry as
they may justifiably be considered circumstantial evidence of
collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of
marriages, under Article 88), is to emphasize that marriage is
more than a mere contract; that it is a social institution in which
the state is vitally interested, so that its continuation or
interruption cannot be made depend upon the parties
themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43
Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35
Phil. 252). 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.
The court below also found, and correctly held that the
appellant's action was already barred, because Brown did not
petition for legal separation proceedings until ten years after he
learned of his wife's adultery, which was upon his release from
internment in 1945. Under Article 102 of the new Civil Code,
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. Appellant's brief does not even contest the
correctness of such findings and conclusion.
It is true that the wife has not interposed prescription as a
defense. Nevertheless, the courts can take cognizance thereof,
because actions seeking a decree of legal separation, or
annulment of marriage, 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.
Hence, 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), 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. Even if it did not, his situation would not
be improved. It is thus needless to discuss the second
assignment of error.

The third assignment of error being a mere consequence of the

others must necessarily fail with them.
The decision appealed from is affirmed, with costs against
appellant. So ordered. Bengzon, Paras, C.J., Padilla,
Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Endencia and Felix, JJ., concur.
Willan v. Willan, 2 A11 E.R. 463 (1960)
Facts: H claims that his W physically and verbally assaults him
and asks him to perform sexual intercourse even when he didnt
want to. Before he finally left, they had sexual intercourse.
Held: The last sexual intercourse w/ the W constitutes
condonation. Willan was free to either submit or resist his wifes
pleadings. He may have been reluctant to submit himself to his
wife but this does not mean that the act was involuntary.
BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA
GINEZ, defendant-appellee.
Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for
appellee.
FELIX, J.: This is a case for legal separation filed in the Court of
First Instance of Pangasinan wherein on motion of the
defendant, the case was dismissed. The order of dismissal was
appealed to the Court of Appeals, but said Tribunal certified the
case to the Court on the ground that there is absolutely no
question of fact involved, the motion being predicated on the
assumption as true of the very facts testified to by plaintiffhusband.
The facts of the case abridgedly stated are as follows: Benjamin
Bugayong, a serviceman in the United States Navy, was
married to defendant Leonila Ginez on August 27, 1949, at
Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with their sisters who later
moved to Sampaloc, Manila. After some time, or about July,
1951, 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, Pangasinan, from which place she later
moved to Dagupan City to study in a local college there.
As early as July, 1951, 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. On cross-examination,
plaintiff admitted that his wife also informed him by letter, which
she claims to have destroyed, that a certain "Eliong" kissed her.
All these communications prompted him in October, 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, and he was directed to consult
instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and
sought for his wife whom he met in the house of one Mrs.
Malalang, defendant's godmother. She came along with him and
both proceeded to the house of Pedro Bugayong, a cousin of

the plaintiff-husband, where they stayed and lived for 2 nights

and 1 day as husband and wife. Then they repaired to the
plaintiff's house and again passed the night therein as husband
and wife. On the second day, Benjamin Bugayong tried to verify
from his wife the truth of the information he received that she
had committed adultery but Leonila, instead of answering his
query, merely packed up and left, which he took as a
confirmation of the acts of infidelity imputed on her. After that
and despite such belief, plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos Norte, "to soothe
his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court
of First Instance of Pangasinan a complaint for legal separation
against his wife, Leonila Ginez, who timely filed an answer
vehemently denying the averments of the complaint and setting
up affirmative defenses. After the issues were joined and
convinced that a reconciliation was not possible, the court set
the case for hearing on June 9, 1953. Plaintiff's counsel
announced that he was to present 6 witnesses but after plaintiffhusband finished testifying in his favor, counsel for the
defendant orally moved for the dismissal of the complaint, but
the Court ordered him to file a written motion to that effect and
gave plaintiff 10 days to answer the same.
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", the
cause of action, if any, is barred by the statute of limitations; (2)
That under the same assumption, the act charged have been
condoned by the plaintiff-husband; and (3) That the complaint
failed to state a cause of action sufficient for this court to render
a valid judgment.
The motion to dismiss was answered by plaintiff and the Court,
considering only the second ground of the motion to dismiss i.
e., condonation, ordered the dismissal of the action. After the
motion for reconsideration filed by plaintiff was denied, the case
was taken up for review to the Court of Appeals, appellant's
counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiffappellant; 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.
As the questions raised in the brief were merely questions of
law, the Court of Appeals certified the case to Superiority.
The Civil Code provides:
ART. 97. 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; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot by either of them.

Collusion between the parties to obtain legal separation shall

cause the dismissal of the petition.
ART. 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 the date when such cause occurred.
As the only reason of the lower Court for dismissing the action
was the alleged condonation of the charges of adultery that the
plaintiff-husband had preferred in the complaint against his wife,
We will disregard the other 2 grounds of the motion to dismiss,
as anyway they have not been raised in appellant's assignment
of errors.
Condonation is the forgiveness of a marital offense constituting
a ground for legal separation or, as stated in I Bouver's Law
Dictionary, p. 585, condonation is the "conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which
the latter has committed". It is to be noted, however, that in
defendant's answer she vehemently and vigorously denies
having committed any act of infidelity against her husband, and
even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying
in Court and link such evidence with the averments of the
complaint, We would have to conclude that the facts appearing
on the record are far from sufficient to establish the charge of
adultery, or, as the complaint states, of "acts of rank infidelity
amounting to adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to have received from his
sister-in-law Valeriana Polangco, which must have been too
vague and indefinite as to defendant's infidelity to deserve its
production in evidence; nor the anonymous letters which plaintiff
also failed to present; nor the alleged letter that, according to
plaintiff, his wife addressed to him admitting that she had been
kissed by one Eliong, 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, do not amount to anything that can be relied
upon.
But this is not a question at issue. In this appeal, We have to
consider plaintiff's line of conduct under the assumption that he
really believed his wife guilty of adultery. What did he do in such
state of mind. In August, 1952, 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, after which he says
that he tried to verify from her the truth of the news he had
about her infidelity, but failed to attain his purpose because his
wife, instead of answering his query on the matter, preferred to
desert him, probably enraged for being subjected to such
humiliation. And yet he tried to locate her, though in vain. Now,
do the husband's attitude of sleeping with his wife for 2 nights
despite his alleged belief that she was unfaithful to him, amount
to a condonation of her previous and supposed adulterous
acts? In the order appealed from, the Court a quo had the
following to say on this point:

In the hearing of the case, the plaintiff further testified as

follows:
Q. Now Mr. Bugayong, you have filed this action for legal
separation from your wife. Please tell this Hon. Court why you
want to separate from your wife? A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told
me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth
day since my arrival she went to the house of our god-mother,
and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? A. I persuaded her to come along
with me. She consented but I did not bring her home but
brought her to the house of my cousin Pedro Bugayong. (p. 12,
t.s.n.)
Q. How long did you remain in the house of your cousin Pedro
Bugayong? A. One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin
Pedro Bugayong as husband and wife, did you slept together?
A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you
sleep together also as husband and wife? A. Yes, sir. (p. 19.
t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and
wife? A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, 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.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent
to the adultery or concubinage. Where both spouses are
offenders, legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband,
especially those portions quoted above, 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. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along
with him, 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, 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. The

reconciliation occurred almost ten months after he came to

know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it
has been held that "condonation is implied from sexual
intercourse after knowledge of the other infidelity. such acts
necessary implied forgiveness. 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,
her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting
a ground for divorce and bars the right to a divorce. But it is on
the condition, implied by the law when not express, that the
wrongdoer shall not again commit the offense; and also that he
shall thereafter treat the other spouse with conjugal kindness. A
breach of the condition will revive the original offense as a
ground for divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various
supreme courts of the different states of the U. S. that 'a single
voluntary act of sexual intercourse by the innocent spouse after
discovery of the offense is ordinarily sufficient to constitute
condonation, especially as against the husband'. (27 Corpus
Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of
the legal provisions above quoted, and of the various decisions
above-cited, the inevitable conclusion is that the present action
is untenable.
Although no acts of infidelity might have been committed by the
wife, We agree with the trial judge that the conduct of the
plaintiff-husband above narrated despite his belief that his wife
was unfaithful, deprives him, as alleged the offended spouse, of
any action for legal separation against the offending wife,
because his said conduct comes within the restriction of Article
100 of the Civil Code.
The only general rule in American jurisprudence is that any
cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the
injured party of its commission, will amount to conclusive
evidence of condonation; but this presumption may be rebutted
by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to
constitute condonation?
Single voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation, and where the
parties live in the same house, it is presumed that they live on
terms of matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties
continue to live together after it was known (Land vs. Martin, 15
South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67
N. J. Eq. 534) or sleeping together for a single
night (Toulson vs. Toulson,
50
Atl.
401,
citing
Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
Collins vs. Collins, 193 So. 702), and many others. The

resumption of marital cohabitation as a basis of condonation will

generally be inferred, nothing appearing to the contrary, from
the fact of the living together as husband and wife, especially as
against the husband (Marsh vs. Marsh, 14 N. J. Eq. 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.
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, because in
the second ground of the motion to dismiss. It is true that it was
filed after the answer and after the hearing had been
commenced, 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, Rule 17 of the Rules of
Court).
Wherefore, and on the strength of the foregoing, the order
appealed from is hereby affirmed, with costs against appellant.
It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
SOCORRO
MATUBIS, plaintiff-appellant, vs.
ZOILO
PRAXEDES, defendant-appellee.
Luis N. de Leon for appellant. Lucio La. Margallo for appellee.
PAREDES, J.: Alleging abandonment and concubinage, plaintiff
Socorro Matubis, filed with the Court of First Instance of
Camarines Sur, on April 24, 1956, a complaint for legal
Separation and changed of surname against her husband
defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant
spouse, who interposed the defense that it was plaintiff who left
the conjugal home.
During the trial, wherein the plaintiff alone introduced oral as
well as documentary evidence, the following facts were
established:.
Plaintiff and defendant were legally married on January 10,
1943 at Iriga, Camarines Sur. For failure to agree on how they
should live as husband and wife, the couple, on May 30, 1944,
agreed to live separately from each other, which status
remained unchanged until the present. On April 3, 1948, plaintiff
and defendant entered into an agreement (Exhibit B), the
significant portions of which are hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as
legal husband and wife.
(b) That both without any interference by any of us, nor either of
us can prosecute the other for adultery or concubinage or any
other crime or suit arising from our separation.
(c) That I, the, wife, is no longer entitled for any support from my
husband or any benefits he may received thereafter, nor I the
husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the
time we verbally separated, that is from May 30, 1944 to the
present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one
Asuncion Rebulado and on September 1, 1955, said Asuncion
gave birth to a child who was recorded as the child of said
defendant (Exh. C.).It was shown also that defendant and
Asuncion deported themselves as husband and wife and were
generally reputed as such in the community.
After the trial, without the defendant adducing any evidence, the
court a quo rendered judgment holding that the acts of
defendant constituted concubinage, a ground for legal
separation. It however, dismissed the complaint by stating:
While this legal ground exist, the suit must be dismissed for two
reasons, viz:
Under Art. 102 of the new Civil Code, 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. The plaintiff became aware of the illegal cohabitation
of her husband with Asuncion Rebulado in January, 1955. The
complaint was filed on April 24, 1956. The present action was,
therefore, filed out of time and for that reason action is barred.
Article 100 of the new Civil Code provides that the legal
separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage. As shown in Exhibit B, the plaintiff has
consented to the commission of concubinage by her husband.
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, nor
either of us can prosecute the other for adultery or concubinage
or any other crime or suit arising from our separation. (Exh. B).
This stipulation is an unbridled license she gave her husband to
commit concubinage. Having consented to the concubinage, the
plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiffappellant 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. The proposition, therefore, calls for the
interpretation of the provisions of the law upon which the lower
court based its judgment of dismissal.
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.
The complaint was filed outside the periods provided for by the
above Article. By the very admission of plaintiff, she came to
know the ground (concubinage) for the legal separation in
January, 1955. She instituted the complaint only on April 24,
1956. It is to be noted that appellant did not even press this
matter in her brief.

The very wording of the agreement Exhibit B. gives no room for

interpretation other than that given by the trial judge. Counsel in
his brief submits that the agreement is divided in two parts. The
first part having to do with the act of living separately which he
claims to be legal, and the second part that which becomes a
license to commit the ground for legal separation which is
admittedly illegal. We do not share appellant's view.
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. The law
(Art. 100 Civil Code), specifically provides that legal separation
may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or
concubinage. Having condoned and/or consented in writing, the
plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even
agrees that the complaint should be dismissed. He claims
however, that the grounds for the dismissal should not be those
stated in the decision of the lower court, "but on the ground that
plaintiff and defendant have already been legally separated
from each other, but without the marital bond having been
affected, long before the effectivity of the new Civil Code"
(appellants brief, pp. 7-8). Again, we cannot subscribed to
counsel's contention, because it is contrary to the evidence.
Conformably with the foregoing, we find that the decision
appealed from is in accordance with the evidence and the law
on the matter. The same is hereby affirmed, with costs. Paras,
C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes,
J.B.L., Barrera, and Gutierrez David, JJ., concur.
VII. C. Defenses Article 56 CC
Cases
ELENA CONTRERAS, plaintiff-appellant, vs. CESAR J.
MACARAIG, defendant-appellee.
Jose T. Nery for plaintiff-appellee. The City fiscal for defendantappellant. Cesar J. Macaraig in his own behalf.
DIZON, J.: Appeal taken by Elena Contreras from a decision of
the Juvenile and Domestic Relations Court of Manila in Civil
Case No. 00138 dismissing her complaint upon the ground that
the same was filed more than one year from and after the date
on which she had become cognizant of the cause for legal
separation.
The following, facts found by the trial court are not in dispute:
Plaintiff and defendant were married on March 16, 1952 in the
Catholic Church of Quiapo, Manila. Out of their Marriage, three
children were born: Eusebio C. Macaraig, on January 11, 1953;
Victoria C. Macaraig, on March 26, 1956; and Alexander C.
Macaraig, on August 4, 1958. All the children are in the care of
plaintiff wife.
Sometime in 1958, the couple acquired rights, as lessee and
purchaser under a conditional sale agreement, to own a house
and lot, known as Lot 4, Block 8 of the Philamlife Homes in
Quezon City which they transferred in favor of their three
children on October 29, 1958 (Exh. F). Installment payments

are being made by plaintiff's father. The spouses own no other

conjugal property.
Immediately before the election of 1961, defendant was
employed as manager of the printing establishment owned by
plaintiff's father known as the MICO Offset. In that capacity,
defendant met and came to know Lily Ann Alcala, who place
orders with MICO Offset for propaganda materials for Mr. Sergio
Osmea, who was then a Vice-Presidential candidate. After the
elections of 1961, defendant resigned from MICO Offset to be a
special agent at Malacaang. He began to be away so often
and to come home very late. Upon plaintiff's inquiry, defendant
explained that he was out on a series of confidential missions.
In September, 1962, Avelino Lubos, driver of the family car, told
plaintiff that defendant was living in Singalong with Lily Ann
Alcala. When defendant, the following October, returned to the
conjugal home, plaintiff refrained from verifying Lubos' report
from defendant in her desire not to anger nor drive defendant
away. Although plaintiff, in April 1963, also received rumors that
defendant was seen with a woman who was on the family way
on Dasmarias St., she was so happy that defendant again
return 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. All this
while, defendant, 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.
After plaintiff received reports that Lily Ann Alcala had given
birth to a baby, she sent Mrs. Felicisima Antioquia, her father's
employee, to verify the reports. The latter was driven by Lubos
to the house in Singalong and between 5:00 and 6:00 o'clock
that afternoon, she saw defendant was carrying a baby in his
arms. Mrs. 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. G) which she gave to
plaintiff sometime in October, 1963.
Plaintiff then entreated her father-in-law, Lucilo Macaraig, to
intercede with defendant and to convince him to return to his
family. Mr. Macaraig, after talking to his son and seeking him
with the latter's child told plaintiff that he could not do anything.
In November, 1963, plaintiff requested the cooperation of
defendant's older sister, Mrs. Enriqueta Majul, and the latter
obliged and arranged a meeting at her home in Buendia
between plaintiff and Lily Ann Alcala. 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.
In the early part of December, 1963, plaintiff, accompanied by
her two children, Victoria and Alexander, and by Mrs. Leticia
Lagronio went to talk to defendant at his place of work on
Espaa Extension in front of Quezon Institute. They repaired to
Victoria Peak, a nearby restaurant, where plaintiff pleaded with
defendant to give up Lily Ann Alcala and to return to the
conjugal home, assuring him that she was willing to forgive him.

Defendant informed plaintiff that he could no longer leave Lily

Ann and refused to return to his legitimate family.
On December 14, 1963, plaintiff instituted the present action for
legal separation. When defendant did not interpose any answer
after he was served summons, the case was referred to the
Office of the City Fiscal of Manila pursuant to the provisions of
Article 101 of the Civil Code. After a report was received from
Asst. Fiscal Primitivo M. Pearanda that he believed that there
was no collusion present, plaintiff was allowed to present her
evidence. Defendant has never appeared in this case.
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, although the
infidelity of the husband is apparent, yet the case will have to be
dismissed. Article 102 provides that, an action for legal
separation cannot be instituted except within one year after
plaintiff "became cognizant of the cause." In the absence of a
clear-cut decision of the Supreme Court as to the exact import
of the term "cognizant," the practical application of said Article
can be attended with difficulty. For one thing; that rules might be
different in case of adultery, which is an act, and for
concubinage, which may be a situation or a relationship.
In respect of concubinage, the word 'cognizant' may not
connote the date when proof thereof sufficient to establish the
cause before a court of law is possessed. Otherwise, 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. On the other hand, it should be hard to
concede that what the law envisages (and, in a way,
encourages) is the filing of a complaint within one year after the
innocent spouses has received information of the other's
infidelity, howsoever baseless the report might be.
The Court believes that the correct rule lies between the two
extremes. At the time a wife acquired information, which can be
reasonably relied upon as true, that her husband is living in
concubinage with another woman, the one-year period should
be deemed to have started even if the wife shall not then be in
possession of proof sufficient to establish the concubinage
before a court of law. The one-year period may be viewed, inter
alia, as an alloted time within which proof should be secured. It
is in the light of this rule that the Court will determine whether or
not plaintiff's action for legal separation has prescribed.
After her husband resigned from MICO Offset to be a special
agent in Malacaan, subsequent to the elections of 1961, he
would seldom come home. He allayed plaintiff's suspicions with
the explanation that he had been away on 'confidential
missions.' However, in September, 1962, Avelino Lubos,
plaintiff's driver, reported to plaintiff that defendant was living in
Singalong with Lily Ann Alcala. As a matter of fact, it was also
Lubos who brought Mrs. F. Antioquia (when plaintiff had asked
to verify the reports) to the house in Singalong where she saw
defendant, Lily Ann and the baby.

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, but is of the essence
of the cause of action. 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.
In the instant action, the Court has to find that plaintiff became
cognizant of defendant's infidelity in September, 1962. Plaintiff
made successive attempts to induce the husband to amend his
erring ways but failed. Her desire to bring defendant back to the
connubial fold and to preserve family solidarity deterred her
from taking timely legal action.
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, as far as the instant case is concerned from
September 1962 or from December 1963. Computing the period
of one year from the former date, it is clear that plaintiff's
complaint filed on December 14, 1963 came a little too late,
while the reverse would be true if said period is deemed to have
commenced only in the month of December 1963.
The period of "five years from after the date when such cause
occurred" is not here involved.
Upon the undisputed facts it seems clear that, in the month of
September 1962, whatever knowledge appellant had acquired
regarding the infidelity of her husband, that is, of the fact that he
was then living in Singalong with Lily Ann Alcala, was only
through the information given to her by Avelino Lubos, driver of
the family car. Much as such hearsay information had pained
and anguished her, 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 her husband's obvious neglect of
his entire family, appellant still cherished the hope however
forlorn of his coming back home to them. Indeed, when her
husband returned to the conjugal home the following October,
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. True,
appellant likewise heard in April 1963 rumors that her husband
was seen with a woman on the family way on Dasmarias
Street, but failed again to either bring up the matter with her
husband or make attempts to verify the truth of said rumors, but
this was due, as the lower court itself believed, 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 a matter of fact, 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. In the words of the lower court, she
"entreated her father-in-law, Lucilo Macaraig, to intercede with
defendant and to convince him to return to his family" and also

"requested the cooperation of defendant's older sister, Mrs.

Enriqueta Majul" for the same purpose, but all that was of no
avail. Her husband remained obdurate.
After a careful review of the record, We are persuaded that, in
the eyes of the law, the only time when appellant really became
cognizant of the infidelity of her husband was in the early part of
December 1963 when, quoting from the appealed decision, the
following happened
In the early part of December, 1963, plaintiff, accompanied by
her two children, Victoria and Alexander, and by Mrs. Leticia
Lagronio went to talk to defendant at his place of work on
Espaa Extension in front of Quezon Institute. They repaired to
Victoria Peak, a nearby restaurant, where plaintiff pleaded with
defendant to give up Lily Ann Alcala and to return to the
conjugal home, assuring him that she was willing to forgive him.
Defendant informed plaintiff that he could no longer leave Lily
Ann and refused to return to his legitimate family.
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, and it was only
then that the legal period of one year must be deemed to have
commenced.
WHEREFORE, 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; and the case is
hereby remanded to the lower court for appropriate proceedings
in accordance with law.
Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.
Concepcion, C.J., concurs in the result. Castro, J., is on leave.
LUCY SOMOSA-RAMOS, petitioner, vs. THE HONORABLE
CIPRIANO VAMENTA, JR., Presiding Judge of the Court of
First Instance of Negros Oriental and CLEMEN G.
RAMOS, respondents. T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.: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, would
likewise preclude the court from acting on a motion for
preliminary mandatory injunction applied for as an ancillary
remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the
Court of First Instance of Negros Oriental, answered the
question in the affirmative, in view of the absolute tenor of such
Civil Code provision, 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." He therefore ordered the
suspension, upon the plea of the other respondent the husband
Clemente G. Ramos, 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. Petitioner, Lucy
Somosa-Ramos, the wife who brought the action for legal
separation would dispute such a ruling. Hence,
this certiorari proceeding. As will be shown later there is
justification for such a move on the part of petitioner. The
respondent Judge ought to have acted differently. The plea for a
writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil
Case No. 5274 in the sala of respondent Judge against
respondent Clemente Ramos for legal separation, on
concubinage on the respondent's part and an attempt by him
against her life being alleged. 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, then under the administration and management of
respondent Clemente Ramos. There was an opposition to the
hearing of such a motion, dated July 3, 1971, based on Article
103 of the Civil Code. It was further manifested by him in a
pleading dated July 16, 1971, that if the motion asking for
preliminary mandatory injunction were heard, the prospect of
the reconciliation of the spouses would become even more dim.
Respondent Judge ordered the parties to submit their
respective memoranda on the matter. Then on September 3,
1971, petitioner received an order dated August 4, 1971 of
respondent Judge granting the motion of respondent Ramos to
suspend the hearing of the petition for a writ of mandatory
preliminary injunction. That is the order complained of in this
petition for certiorari. Respondents were required to answer
according to our resolution of October 5, 1971. The answer was
filed December 2 of that year. Then on January 12, 1972 came
a manifestation from parties in the case submitting the matter
without further arguments.
After a careful consideration of the legal question presented, 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.
1. It is understandable why there should be a period during
which the court is precluded from acting. Ordinarily of course,
no such delay is permissible. Justice to parties would not
thereby be served. The sooner the dispute is resolved, the
better for all concerned. A suit for legal separation, however, is
something else again. It involves a relationship on which the law
for the best reasons would attach the quality of permanence.
That there are times when domestic felicity is much less than it
ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the
spouses. There may be constant bickering. The loss affection
on the part of one or both may be discernible. Nonetheless, it
will not serve public interest, much less the welfare of the
husband or the wife, to allow them to go their respective ways.
Where there are offspring, the reason for maintaining the
conjugal union is even more imperative. It is a mark of realism
of the law that for certain cases, adultery on the part of the wife
and concubinage on the part of the husband, or an attempt of

one spouse against the life of the other, 1 it recognizes, albeit

reluctantly, that the couple is better off apart. A suit for legal
separation lies. Even then, the hope that the parties may settle
their differences is not all together abandoned. The healing
balm of time may aid in the process. Hopefully, the guilty parties
may mend his or her ways, and the offended party may in turn
exhibit magnanimity. Hence, the interposition of a six-month
period before an action for legal separation is to be tried.
The court where the action is pending according to Article 103 is
to remain passive. It must let the parties alone in the
meanwhile. It is precluded from hearing the suit. 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. If it were otherwise, there would be a failure to
abide by the literal language of such codal provision. That the
law, however, 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. It reads thus: "After the filing of the
petition for legal separation, the spouse shall be entitled to live
separately from each other and manage their respective
property. The husband shall continue to manage the conjugal
partnership property but if the court deems it proper, it may
appoint another to manage said property, 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." 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 six-month period. An
administrator may even be appointed for the management of
the property of the conjugal partnership. The absolute limitation
from which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be heard.
There is justification then for the petitioner's insistence that her
motion for preliminary mandatory injunction should not be
ignored by the lower court. There is all the more reason for this
response from respondent Judge, 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, an assertion that
was not specifically denied by him. What was held by this Court
in Araneta v. Concepcion, 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. The recital
of their grievances against each other in court may only fan their
already inflamed passions against one another, and the
lawmaker has imposed the period to give them opportunity for
dispassionate reflection. But this practical expedient, necessary
to carry out legislative policy, 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 ... The law expressly enjoins that
these should be determined by the court according to the

circumstances. If these are ignored or the courts close their

eyes to actual facts, rank injustice may be caused." 4 At any
rate, from the time of the issuance of the order complained of on
August 4, 1971, more than six months certainly had elapsed.
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.
WHEREFORE, the plea of petitioner for a writ of certiorari is
granted, and the order of respondent Court of August 4, 1971,
suspending the hearing on the petition for a writ of preliminary
mandatory injunction is set aside. Respondent Judge is directed
to proceed without delay to hear the motion for preliminary
mandatory injunction. Costs against respondent Clemente G.
Ramos. Concepcion, C.J., Makalintal, Zaldivar, Castro,
Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
VII. D. Effects of Filing of Petition Arts. 61-62 FC
Cases
DIEGO DE LA VIA, petitioner, vs. ANTONIO VILLAREAL, as
Auxiliary Judge of First Instance, and NARCISA
GEOPANO, respondents.Del Rosario and Del Rosario and W.
F. Mueller for petitioner. J. Lopez Vito for respondents.
JOHNSON, J.: This is an original petition presented in the
Supreme Court. Its purpose is to obtain an order declaring: (a)
That the respondent, the Honorable Antonio Villareal, as
Auxiliary Judge sitting in the Court of First Instance of the
province of Iloilo, has no jurisdiction to take cognizance of a
certain action for divorce instituted in said court by the
respondent Narcisa Geopano against her husband, Diego de la
Via, the petitioner herein; (b) that the said respondent judge
has exceeded his power and authority in issuing, in said action,
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; and (c) that all the
proceedings theretofore had in said court were null and void.
It appears from the record that on September 17, 1917, Narcisa
Geopano filed a complaint in the Court of First Instance of the
Province of Iloilo against Diego de la Via, alleging: (1) That she
was a resident of the municipality of Iloilo, Province of Iloilo, and
that the defendant was a resident of the municipality of
Vallehermoso, Province of Oriental Negros; (2) that she was the
legitimate wife of the defendant, having been married to him in
the municipality of Guijulgan, Province of Negros Oriental, in
the year 1888; (3) that since their said marriage plaintiff and
defendant had lived as husband and wife and had nine children,
three of whom were living and were already of age; (4) that
during their marriage plaintiff and defendant had acquired
property, real and personal, the value of which was about
P300,000 and all of which was under the administration of the
defendant; (5) that since the year 1913 and up to the date of the
complaint, the defendant had been committing acts of adultery
with one Ana Calog, sustaining illicit relations with her and
having her as his concubine, with public scandal and in disgrace

of the plaintiff; (6) that because of said illicit relations, the

defendant ejected the plaintiff from the conjugal home, for which
reason she was obliged to live in the city of Iloilo, where she
had since established her habitual residence; and (7) that the
plaintiff, scorned by her husband, the defendant, had no means
of support and was living only at the expense of one of her
daughters. Upon said allegations she prayed for (a) a decree of
divorce, (b) the partition of the conjugal property, and (c)
alimony pendente lite in the sum of P400 per month.
Subsequent to the filing of the said complaint, Narcisa
Geopano, the plaintiff therein, presented a motion, which was
later amended, alleging, among other things, 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, to the prejudice of the plaintiff, and prayed
that a preliminary injunction be issued against the defendant
restraining and prohibiting him in the premises.
The defendant Diego de la Via, petitioner herein, opposed the
said motion for a preliminary injunction, and, subsequently,
demurred to the complaint upon the ground that the court had
no jurisdiction to take cognizance of the cause, "nor over the
person of the defendant."
After hearing the respective parties the respondent judge, in to
separate orders, dated November 1 and November 2, 1917,
respectively, overruled the defendant's demurrer, and granted
the preliminary injunction prayed for by the plaintiff.
Thereafter and on April 27, 1918, the defendant, Diego de la
Via filed the present petition for certiorari in this court, upon the
ground that the respondent judge had no jurisdiction to take
cognizance of the action in question, and had exceeded his
power and authority in issuing said preliminary injunction.
The questions arising out of the foregoing facts are as follows:
1. May a married woman ever acquire a residence or domicile
separate from that of her husband during the existence of the
marriage?
2. In an action for divorce, brought by the wife against her
husband, in which the partition of the conjugal property is also
prayed for, 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 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, as the wife of the
defendant, must also be considered a resident of the same
province inasmuch as, under the law, the domicile of the
husband is also the domicile of the wife; that the plaintiff could
not acquire a residence in Iloilo before the arriage between her
and the defendant was legally dissolved.
This contention of the petitioner is not tenable. It is true, as a
general of law, that the domicile of the wife follows that of her
husband. This rule is founded upon the theoretic identity of

person and of interest between the husband and the wife, and
the presumption that, from the nature of the relation, the home
of the one is that of the other. It is intended to promote,
strenghten, and secure their interests in this relation, as it
ordinarily exists, where union and harmony prevail. But the
authorities are unanimous in holding that this is not an absolute
rule. "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. Accordingly, the wife may acquire
another and seperate domicile from that of her husband where
the theorical unity of husband and wife is is dissolved, as it is by
the institution of divorce proceedings; or where the husband
has given cause for divorce; or where there is a separation of
the parties by agreement, or a permanent separation due to
desertion of the wife by the husband or attributable to cruel
treatment on the part of the husband; or where there has been a
forfeiture by the wife of the benefit of the husband's domicile." (9
R. C. L., 545.)
The case of Narcisa Geopano comes under one of the many
exceptions above-mentioned, to wit: "Where the husband has
given cause for divorce, the wife may acquire another and
seperate domicile from that of her husband." In support of this
proposition there is a formidable array of authorities. We shall
content ourselves with illustrative quotations from a few of them,
as follows:
Although the law fixes the domicile of the wife as being that of
her husband, 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, which justifies her
in leaving him, and, therefore, necessarily authorities her to live
elsewhere and to acquire a separate domicile. Cheever vs.
Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.),
582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec.
574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs. Smith,
43 La. Ann., 1140, 1146.)
The matrimonial domicile of the wife is usually that of the
husband, but if she is justified in leaving him because his
conduct has been such as to entitle her to a divorce, and she
thereupon does leave him and go into another state for the
purpose of there permanently residing, she acquires a domicile
in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am.
St. Rep., 650.)
The law will recognize a wife as having a separate existence,
and separate interests, and separate rights, in those cases
where the express object of all proceedings is to show that the
relation itself ougth to be dissolved, or so modified as to
establish separate interests, and especially a separate domicile
and home, bed and board being put, apart for the whole, as
expressive of the idea of home. Otherwise the parties, in this
respect, would stand upon very unequal ground, it being in the
power of the husband to change his domicile at will, but not in
that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25
Am. Dec., 372, 375-376.)

Under the pauper laws, and upon general principles, the wife is
regarded as having the domicile of her husband; hut this results
from his marital rights, and the duties of the wife. If the husband
has forfeited those rights be misbehavior, and has left and
deserted the wife, they may have different domiciles, in the view
of the law regulating divorces. (Harding vs. Alden, 9 Greenl.
[Me.], 140; 23 Am. Dec., 549, 552.)
Though as a general principle of law the domicile of the
husband is regarded as the domicile of the wife, 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, in which her domicile or residence is
established, to decree a divorce in her favor. (9 R. C. L. 400401, citing various cases.)
The law making the domicile of the husband that of the wife is
applicable only to their relations with third parties, 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.
Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald,
55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L.
ed., 605. (Notes, p. 498, 16 L. R. A.)
In the case of Schonwald vs. Schonwald (55 N. C., 343), the
plaintiff tried to do what the petitioner in this case insists the
respondent Narcisa Geopano should have done. In that case
the wife filed a bill of divorce in a court in North Carolina, where
her husband resided. She herself had not resided in that state
for three years previous to the filing of the suit, as required by
the statute; but she claimed that the domicile of her husband
was also her domicile and, inasmuch as her husband, the
defendant, had been a resident of North Carolina for more than
three years, she had also been a resident of that state during
that time. The court dismissed the bill, holding that the legal
maxim that "her domicile is that of her husband" would not avail
in the stead of an actual residence. The court said:
It is true that for many purpose the domicile of the husband is
the domicile of the wife, but it is not so for every purpose. The
maxim that the domicile of the wife follows that of the husband
cannot be applied to oust the court of its jurisdiction; neither,
from party of reasons can it give jurisdiction. (P. 344.)
Turning to the Spanish authorities, 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, is not an
absolute one. Scaevola, commenting on article 40 of the Civil
Code (which is the only legal provision or authority relied upon
by the petitioner in this case), says:
Although article 64 of the Law of Civil Procedure provides that
the domicile of a married woman, not legally separated from her
husband, is that of the latter, yet, when the tacit consent of the
husband and other circumstances justify it, for the purpose of
determining jurisdiction, the habitual residence of the woman
should be considered as her domicile where her right may be
exercised in accordance with article 63. (Scaevola, Civil Code,
p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their
husband shall be that of the latter. This principle, maintained by
the Supreme Court in numerous decisions, was modified in a
particular case by the decision of June 17, 1887, and in
conformity with this last decision, three others were afterwards
rendered on October 13, 23, and 28, 1899, in all of which it is
declared that when married women as well as children subject
to parental authority live, with the acquiescence of their
husbands or fathers, in a place distinct from where the latter
live, they have their own independent domicile, which should be
considered in determining jurisdiction in cases of provisional
support guardianship of persons, etc. (1 Manresa, 233.)
If the wife can acquire a separate residence when her husband
consents or acquiesces, we see no reason why the law will not
allow her to do so when, as alleged in the present case, the
husband unlawfully ejects her from the conjugal home in order
that he may freely indulge in his illicit relations with another
woman. Under no other circumstance could a wife be more
justified in establishing a separate residence from that of her
husband. For her to continue living with him, even if he had
permitted it, would have been a condonation of his flagrant
breach of fidelity and marital duty. Furthermore, in this case no
longer was there an "identity of persons and of interest between
the husband and the wife." Therefore the law allowed her to
acquire a separate residence. For, "it would do violence to the
plainest principle of common sense and common justice of to
call this residence of the guilty husband, where the wife is
forbidden to come, . . . the domicile of the wife." (Champon vs.
Champon, 40 La. Ann., 28.)
It is clear, therefore, that a married woman may acquire a
residence or domicile separate from that of her husband, during
the existence of the marriage, where the husband has given
cause for divorce.
II. 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.
Section 164 of Act No. 190 provides:
A preliminary injunction may be granted when it is established,
in the manner hereinafter provided, to the satisfaction of the
judge granting it:
1. That the plaintiff is entitled to the relief demanded and such
relief, or any part thereof, consists in restraining the commission
or continuance of the acts complained of either for a limited
period or perpetually;
2. That the commission or continuance of some act complained
of during the litigation would probably work injustice to the
plaintiff;
3. That the defendant is doing, or threatens, on is about to do,
or is procuring or suffering to be done, some act probably in
violation of the plaintiff's rights, respecting the subject of the
action, and tending to render the judgment ineffectual.
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, she was not entitled to the relief demanded, which
consisted in restraining the power and authority which the law
confers upon the husband; that under articles 1412 and 1413 of
the Civil Code, the husband is the manager of the conjugal
partnership and, as such, is empowered to alienate and
encumber and conjugal property without the consent of the wife;
that neither could the wife obtain a preliminary injunction under
paragraph 3 of said section, upon the ground that the defendant
was committing some acts in violation of the plaintiff's rights,
because the plaintiff, as the wife of the defendant, had nor right
to intervene in the administration of the conjugal property, and
therefore no right of hers was violated.
We cannot subscribe to that argument of counsel. 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, from the
very nature of the relating between husband and wife, the
former will promote and not injure the interests of the latter. So
long as this harmonious relation, as contemplated by law,
continues, the wife cannot and should not interfere with the
husband in his judicious administration of the conjugal property.
But when that relation ceases and, in a proper action, the wife
seeks to dissolve the marriage and to partition the conjugal
property, it is just and proper, in order to protect the interests of
the wife, that the husband's power of administration be
curtailed, during the pendency of the action, insofar as
alienating or encumbering the conjugal property is concerned.
In her motion for a preliminary injunction, Narcisa Geopano
alleged that the defendant was about to alienate or encumber
the property belonging to the conjugal partnerships, with the
object of injuring her interests; and this allegation does not
appear to have been controverted by the defendant either in this
court or in the court below. In view of this fact, we are of the
opinion that under both paragraphs 2 and 3 of section 164 of
Act No. 190, above quoted, the respondent judge was
empowered and justified in granting the preliminary injunction
prayed for by her. It cannot be doubted that, if the defendant
should dispose of all or any part of the conjugal property during
the pendency of the action for divorce, and squander or
fraudulently conceal the proceeds, that act "would probably
work injustice to the plaintiff," or that it would probably be "in
violation of the plaintiff's rights, respecting the subject of the
action, and tending to render the judgment ineffectual." In this
case the plaintiff's rights sought to be protected by said
paragraph 3 is not the right to administer the conjugal property,
as counsel for the petitioner believes, but the right to share in
the conjugal property upon the dissolution of the conjugal
partnership.
The case under consideration, then, is covered or contemplated
by the statute (sec. 164, Act No. 190), so that there can be no
question, in our opinion, as to the power of the respondent
judge to issue the preliminary injunction complained of by the

petitioner. Indeed, even in a case not covered by the statute this

court had upheld the power of Court of First Instance to grant
preliminary injunctions. In the case of Manila Electric Railroad
and Light Company vs. Del Rosario and Jose (22 Phil., 433),
Doroteo Jose asked for, and the Court of First Instance
granted ex parte, a writ of preliminary mandatory injunction
directing the Manila Electric Railroad and Light Company to
continue furnishing electricity to Jose. Thereupon the Light
Company filed in this court a petition for the writ of certiorari
against Judge S. 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. This court denied that petition,
determining the power of the Courts of First Instance to issue
preliminary injunction, as follows:
The power to grant preliminary injunctions, both preventative
and mandatory, is a logical and necessary incident of the
general powers conferred upon Courts of First Instance in these
Islands, as courts of record of general and unlimited original
jurisdiction, both legal and equitable.
Insofar as the statute limits or prescribes the exercise of this
power it must be followed: but beyond this, and in cases not
covered by or contemplated by the statute, these courts must
exercise their jurisdiction in the issuance of preliminary
injunctions upon sound principles applicable to the
circumstances of each particular case, having in mind the
nature of the remedy, and the doctrine and practice established
in the courts upon which our judicial is modeled.
The only limitation upon the power of Courts of First Instance to
issue preliminary injunctions, either mandatory of preventative,
is that they are to be issued in the "manner" or according to the
"method" provided therefor in the Code of Civil Procedure.
We conclude, therefore, that in an action for divorce brought by
the wife against the husband, in which the partition of the
conjugal property is also prayed for, the wife may obtain a
preliminary injunction against the husband, prohibiting the latter
from alienating or encumbering any part of the conjugal property
during the pendency of the action.
It follows from all of the foregoing that the respondent, the
Honorable Antonio Villareal, as Auxiliary Judge sitting in the
Court of First Instance of the Province of Iloilo, had jurisdiction
to hear and determine the action for divorce instituted in said
court by the respondent Narcisa Geopano, and that he did not
exceed his power and authority in issuing a preliminary
injunction against the defendant, prohibiting him from alienating
or encumbering any part of the conjugal property during the
pendency of the action.
Therefore, the petition should be and is hereby denied, with
costs against the petitioner. So ordered. Mapa, C.J., Carson,
Araullo, Malcolm, Avancea, Moir and Villamor, JJ., concur.

ILUSTRE-REYES, respondents. Eriberto D. Ignacio for

petitioner. Gonzalo D. David for private respondent.
FERNANDEZ, J.: This is a petition for certiorari to review the
decision of the Court of Appeals in CA-G.R. No. 06928-SP
entitled "Manuel J. C. Reyes, petitioner, versus, The Hon.
Leonor Ines-Luciano as Judge of the Juvenile & Domestic
Relations Court (Quezon City) and Celia Ilustre-Reyes,
Respondents", dismissing the petition to annul the order of the
respondent Judge directing the petitioner to give
support pendente lite to his wife, Celia Ilustre-Reyes, private
respondent herein, in the amount of P40,000.00 a month. 1
The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile
and Domestic Relations Court of Quezon City a complaint dated
June 3, 1976 against her husband, Manuel J. C. Reyes, for
legal separation on the ground that the defendant had
attempted to kill plaintiff. The pertinent allegations of the
complaint are:
6.8 On March 10, 1976, defendant went to V. Ilustre and
attacked plaintiff. He pummeled her with fist blows that floored
her, then held her head and, with intent to kill, bumped it several
times against the cement floor. When she ran upstairs to her
father for protection, he pushed her at the stairway of 13 flights
and she fell sliding to the ground floor. Determined to finish her
off, he again gave her a strong swing at her abdomen which
floored her half unconscious. Were it not for plaintiff's father, he
would have succeeded killing her;
6.9. On May 26, 1976, although on May 11 previous she ceased
holding office with defendant at Bel-Air Apartments elsewhere
adverted to, she went thereto to get her overnight bag. Upon
seeing her, defendant yelled at her to get out of the office. When
he did not mind him, he suddenly doused her with a glass of
grape juice, kicked her several times that landed at her back
and nape, and was going to hit her with a steel tray as her
driver, Ricardo Mancera, came due to her screams for help. For
fear of further injury and for life, she rushed to Precinct 5 at
united Nations Avenue, Manila Metropolitan Police, for
assistance and protection; 2
The plaintiff asked for support pendente lite for her and her
three children. The defendant, petitioner herein, opposed the
application for support pendente lite on the ground that his wife
had committed adultery with her physician.
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.
The respondent Judge issued an order dated March 15, 1977
granting plaintiff's prayer for alimony pendente litein the amount
of P5,000.00 a month commencing from June 1976. 3
The petitioner filed a motion for reconsideration reiterating that
his wife is not entitled to support during the pendency of the
case, and, alleging that even if she entitled, the amount
awarded was excessive. The respondent Judge reduced the
MANUEL J. C. REYES, petitioner, vs. HON. LEONOR INES- amount from P5,000.00 to P44,00.00 a month in an order dated
LUCIANO, as Judge of the Juvenile & Domestic Relations June 17, 1977. 4
Court, Quezon City, COURT OF APPEALS and CELIA

Manuel J. C. Reyes filed a petition for certiorari in the Court of

Appeals dated July 25, 1977 asking that the order granting
support pendente lite to private respondent. Celia Ilustre-Reyes,
be annulled on the ground that the respondent Judge, Leonor
Ines-Luciano, had committed a grave abuse of discretion or that
said order be modified inasmuch as the amount awarded as
support pendente lite is excessive.
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 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. We see no compelling reason to give it due
course. 5
The petitioner contends that the Court of Appeal committed the
following error:
THE HON. 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. COURT IN THE CASES WE SHALL LATER ON
DISCUSS, IN REFUSING TO GIVE DUE COURSE TO THE
ORIGINAL PETITION FOR certiorari HEREIN AGAINST
RESPONDENTS-APPELLEES, AND IN AFFIRMING THE
ORDERS FOR SUPPORT PENDENTE LITE ANNEXES "F"
AND "H" OF THIS PETITION WHEN HELD THAT
RESPONDENT-APPELLEE JUDGE DID NOT COMMIT ANY
ABUSE OF DISCRETION IN ISSUING SAID ORDERS, FOR
THE REASONS THAT:
A. 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; AND
B.
IN
DETERMINING
THE
AMOUNT
OF
SUPPORT PENDENTE LITE, 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. 6
It is true that the adultery of the wife is a defense in an action for
support however, the alleged adultery of wife must be
established by competent evidence. The allegation that the wife
has committed adultery will not bar her from the right receive
support pendente lite. Adultery is a good defense and if properly
proved and sustained wig defeat the action. 7
In the instant case, at the hearing of the application for
support pendente lite before the Juvenile and Domestic
Relations Court presided by the respondent Judge, Hon. Leonor
Ines-Luciano the petitioner did not present any evidence to
prove the allegation that his wife, private respondent
Celia Ilustre-Reyes, had committed adultery with any person.
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. It is to be noted

however, that as pointed out by the respondents in their

comment, the "private respondent was not asking support to be
taken from petitioner's personal funds or wherewithal, but from
the conjugal propertywhich, was her documentary
evidence ...". 8 It is, therefore, doubtful whether adultery will
affect her right to alimony pendente lite. InQuintana vs.
Lerma, 9 the action for support was based on the obligation of
the husband to support his wife.
The contention of the petitioner that the order of the respondent
Judge granting the private respondent support pendente lite in
the amount of P4,000.00 a month is not supported by the
allegations of the complaint for legal separation and by
competent evidence has no merit.
The complaint or legal separation contains allegations showing
that on at least two occasions the defendant, petitioner herein,
had made attempts to kill the private respondent. Thus it is
alleged that on March 10, 1976, the defendant attacked plaintiff,
pummeled her with fist blows that floored her, held her head and
with intent to kill, bumped it several times against the cement
floor and when she ran upstairs to her father for protection, 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, defendant
would have succeeded in killing her. 10 It is also alleged that on
May 26, 1976, the defendant doused Celia Ilustre-Reyes with a
glass of grape juice, 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." 11
In fixing the amount of monthly support pendente lite of
P4,000,00, the respondent judge did not act capriciously and
whimsically. When she originally fixed the amount of P5,000.00
a month, the respondent Judge considered the following:
On record for plaintiff's cause are the following: that she and
defendant were married on January 18, 1958; that she is
presently unemployed and without funds, thus, she is being
supported by her father with whom she resides: that defendant
had been maltreating her and Cried to kill her; that all their
conjugal properties are in the possession of defendant who is
also president, Manager and Treasurer of their corporation
namely:
1. Standard Mineral Products, which was incorporated on
February 9, 1959: presently with paid-in capital of P295,670.00;
assets and liabilities of P757,108.52; Retained Earnings of
P85,654.61: and majority stockholder is defendant;
2. Development and Technology Consultant Inc. incorporated
on July 12, 1971, with paid-in capital of P200,000.00; Assets
and liabilities of P831,669.34; defendant owns 99% of the
stocks; and last Retained Earnings is P98,879.84.
3. The Contra-Prop Marine Philippines, Inc. which was
incorporated on October 3, 1975, with paid-in capital of
P100,000 defendant owns 99% of the stocks.
To secure some of the of said Agreement of Counter-Guaranty
Mortgage with Real Estate, and Real Estate Mortgage were

undertaken by plaintiff of their properties outside of other

accommodations; and that she needs of P5,000.00 a month for
her support in accordance with their station in life. 12
The amount of support pendente lite was reduced to P4,000.00
inasmuch as the children are in the custody of the petitioner and
are being supported by him.
It is thus seen that the respondent judge acted with due
deliberation before fixing the amount of support pendente lite in
the amount of P4,000.00 a month.
In determining the amount to be awarded as support pendente
lite it is not necessary to go fully into the merits of the case, 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, one way or the other, in view of the
merely provisional character of the resolution to be entered.
Mere affidavits may satisfy the court to pass upon the
application for support pendente lite. 13 It is enough the the facts
be established by affidavits or other documentary evidence
appearing in the record. 14
The private respondent has submitted documents showing that
the corporations controlled by the petitioner have entered into
multi-million contracts in projects of the Ministry of Public
Highways.
Considering the high cost of living due to inflation and the
financial ability of the petitioner as shown by the documents of
record, We find that the amount of P4,000.00 a month granted
by the respondent Judge as alimonypendente lite to the private
respondent is not excessive. There is no showing that the
respondent Judge has committed a grave abuse of discretion in
granting said support.
In a resolution dated July 31, 1978, 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 P4,000.00 monthly
commencing June 1976 and in lieu thereof to allow such
support only to the extent of P1,000.00 a month. 15
Later the petitioner was required to pay the support at the rate
of P1,000.00 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, 1978
having received from the petitioner, through his counsel a check
in the amount of P30,000.00 as payment of support for the
period from June 1976 to November 1978 or thirty (30) months
at P1,000.00 a month in compliance with the resolution of this
Court dated October 9, 1978.
In view of the foregoing, the support of P4,000.00 should be
made to commence or, March 1, 1979. WHEREFORE, 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
Thousand Pesos (P4.000.00) a month should commence from
March 1, 1979 without pronouncement as to costs. SO
ORDERED. Teehankee (Chairman), Makasiar, Guerrero, De
Castro and Melencio-Herrera, JJ., concur.

VII. E. Effects of Decree Arts. 63, 64 FC

Cases
Banes vs Banes (Baez vs. Baez) 374 SCRA 340 G.R. No.
132592, G.R. No. 133628. January 23, 2002.

Baez v. Baez, 374 SCRA 340 (2002)

Facts: There was an action pending for legal separation;
petitioner contends that multiple appeals are allowed.
Held: (1) Execution pending appeal is allowed when superior
circumstances demanding urgency outweigh the damages that
may result
from the issuance of the writ. (2) The effects of the decree, such
as entitlement to live separately, dissolution and liquidation of
the absolute community or conjugal partnership, and custody of
the minor children follow from the decree of legal separation.
They are not separate or distinct matters, rather they are mere
incidents of legal separation. Thus they may not be subject to
multiple appeals.

1. Dissolution and liquidation of ACP or CPG

Case
2. Custody Art. 213, FC
3. Other Effects Art 372, CC
Cases
Matute v Macaraig
Facts: Wife sought and was granted divorce. Marriage was
atraditional one in that husband works while wife stays at home.
Held: Wife was entitled to equitable distribution in a nofaultdivorce especially since she contributed her earnings
duringthe early years of marriage to conjugal property and since
herhomemaker services were contributed over a
considerableperiod of time, which also contributed to the
economic well-being of the family unit. According to the theory
of equitabledistribution homemaker services are
valid contributions to theconjugal properties, subject to the
following conditions:
(1)thatit is NOT LIMITED to the possessory interest of a real
estate;
(2)that it depends on the QUALITY of the services
rendered,whether the wife has been frugal or excessive in her
expenses;

(3)the age and health of the wife, as well as the LENGTH ofthe The only question to be determined is whether petitioners can
marriage.
still appeal from the decision rendered in civil case No. 14208
considering that they had filed the appeal bond beyond the
ROSARIO MATUTE, TRINIDAD MATUTE, CARLOS MATUTE, thirty-day period from the date copy of the decision was served
MATIAS MATUTE and RAMON MATUTE,Petitioners, vs. HON. on said petitioners.
HIGINO MACADAEG and HON. MAGNO GATMAITAN, It appears that when petitioners filed the complaint against
Judges of the Court of First Instance of Manila, Branch X, and respondent in civil case No. 14208 for partition and delivery of
AMADEO MATUTE, Respondents.
their share in certain conjugal property, they submitted to the
DECISION
court a petition to litigate as paupers and this petition was
BAUTISTA ANGELO, J.: This is a petition for certiorari and granted under Rule 3, section 22, of the Rules of Court. Under
mandamus in which petitioners seek to nullify the orders of said section 22, the authority to litigate as pauper "shall include
respondent judge dated January 4 and April 30, 1952, denying an exemption from payment of legal fees and from filing appeal
their petition to appeal as paupers from the decision rendered in bond, printed record and printed brief." It is perhaps for this
Civil Case No. 14208 of the Court of First Instance of Manila reason that when petitioners took steps to perfect their appeal
and, as alternative relief, to direct respondent judge to give from the decision rendered in the main case, instead of filing an
course to their appeal in the event their petition to appeal as appeal bond, they filed a motion to appeal as paupers in lieu
paupers is denied.
thereof. We take it that by virtue of the authority given by the
Petitioners were plaintiffs in Civil Case No. 14208 filed in the court to petitioners to litigate as paupers in the case, they are
Court of First Instance of Manila against respondent Amadeo entitled to appeal without need of filing an appeal bond, and this
Matute "For Partition and Delivery of share in conjugal property, right can only be divested when the court rules otherwise.
with Petition For Receivership." Simultaneously with the filing of The record shows that in view of the opposition interposed by
the complaint, petitioners filed a petition to litigate as paupers respondent to the motion of petitioners to appeal as paupers,
under the provisions of Rule 3, section 22, of the Rules of Court. the court set the motion for hearing, and because of the failure
This petition was granted by the court, then presided over by of petitioners to appear, the court entered an order denying it,
respondent judge.
copy of which was received by petitioners on January 18, 1952.
Amadeo Matute, hereinafter referred to as respondent, instead On January 24, 1952, petitioners filed a motion for
of answering the complaint, filed a motion to dismiss, and after reconsideration. On April 30, 1952, the court denied this motion,
proper hearing, the court entered an order on October 31, 1951 and copy of the order was received by petitioners on May 9,
dismissing the complaint on the ground of res adjudicata. Copy 1952. And on the same date petitioners filed an appeal bond of
of said order was received by petitioners on November 3, 1951. P60 with the reservation above adverted to. It therefore appears
On December 1, 1951, petitioners filed their notice of appeal, that, while said appeal bond was not filed within the period of
record on appeal and a motion to appeal as paupers in lieu of thirty days counting from the date they received copy of the
the appeal bond. On December 8, 1951, respondent filed a decision of the case (October 31, 1951), the record however
written opposition to the motion to appeal as paupers alleging shows that the said appeal bond was filed only six days from
that petitioners were not really paupers who could be allowed to receipt of the order denying their motion to appeal as paupers,
litigate as such under the Rules of Court. In view of this excluding the period spent in considering their motion for
opposition, the court set the motion for hearing, but at this reconsideration. In our opinion, the appeal bond has been filed
hearing, petitioners failed to appear, and on January 4, 1952, on time because, as already stated, petitioners were entitled to
the court entered an order denying the motion. Copy of this appeal as paupers under the original authority until the court
order was received by petitioners on January 18, 1952.
rules otherwise, and this ruling only came on January 4, 1952.
On January 24, 1952, petitioners filed a motion for With regard to the other question touching on the alleged abuse
reconsideration of the order entered on January 4, 1952. This committed by respondent judge in denying the motion of
motion was heared on January 26, and on April 30, 1952, the petitioners to appeal as paupers, we find that said judge did not
court denied the motion. Copy of the order of denial was abuse his discretion in denying it. There is enough evidence to
received by petitioners on May 9, 1952, and on the same date warrant his action.
they filed an appeal bond of P60 coupled with a manifestation Wherefore, the petition as to the alternative relief is hereby
that the filing of said bond should not be deemed as a waiver of granted, without pronouncement as to costs. Paras, C.J., Pablo,
their petition to prosecute their appeal as paupers in the event Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and
this question is raised by them before the Supreme Court.
Labrador, JJ., concur.
On May 14, 1952, respondent filed a motion to declare the
judgment on the merits final and executory, and notwithstanding ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE
the opposition of Petitioners, the motion was granted on May PHILIPPINES, oppositor.
17, 1952. Hence, this petition for certiorari.
Martin B. Laurea and Associates for petitioner. Office of the
Solicitor General for oppositor.

BARRERA, J.: On May 10, 1960, Elisea Laperal filed in the

Court of First Instance of Baguio (Sp Proc. No. 433) a petition
which reads:
1. 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;
2. That petitioner's maiden name is ELISEA LAPERAL; that on
March 24, 1939, she married Mr. Enrique R. Santamaria; that in
a partial decision entered on this Honorable Court on January
18, 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R.
Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria
was given a decree of legal separation from her; that the said
partial decision is now final;
3. That during her marriage to Enrique R. Santamaria, she
naturally used, instead of her maiden name, that of Elisea L.
Santamaria; that aside from her legal separation from Enrique
R. Santamaria, she has also ceased to live with him for many
years now;
4. That in view of the fact that she has been legally separated
from Mr. Enrique R. Santamaria and has likewise ceased to live
with him for many years, it is desirable that she be allowed to
change her name and/or be permitted to resume using her
maiden name, to wit: ELISEA LAPERAL.
WHEREFORE, petitioner respectfully prayed that after the
necessary proceedings are had, she be allowed to resume
using her maiden name of Elisea Laperal.
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, and that it is not sanctioned
by the Rules of Court.
In its decision of October 31, 1960, the court denied the petition
for the reason that Article 372 of the Civil Code requires the
wife, even after she is decreed legally separated from her
husband, to continue using the name and surname she
employed before the legal separation. Upon petitioner's motion,
however, the court, treating the petition as one for change of
name, reconsidered its decision and granted the petition on the
ground that to allow petitioner, who is a businesswoman
decreed legally separated from her husband, to continue using
her married name would give rise to confusion in her finances
and the eventual liquidation of the conjugal assets. Hence, this
appeal by the State.
The contention of the Republic finds support in the provisions of
Article 372 of the New Civil Code which reads:
ART. 372. When legal separation has been granted, the
wife shall continue using her name and surname employed
before the legal separation. (Emphasis supplied)
Note that the language of the statute is mandatory that the wife,
even after the legal separation has been decreed, shall continue
using her name and surname employed before the legal
separation. This is so because her married status is unaffected
by the separation, there being no severance of the vinculum. 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.
The appellee contends, however, that the petition is
substantially for change of her name from Elisea L. Santamaria,
the one she has been using, since her marriage, to Elisea
Laperal, her maiden name, giving as reason or cause therefor
her being legally separated from the husband Enrique R.
Santamaria, and the fact that they have ceased to live together
for many years.
There seems to be no dispute that in the institution of these
proceedings, the procedure prescribed in Rule 103 of the Rules
of Court for change of name has been observed. But from the
petition quoted in full at the beginning of these opinion, the only
reason relied upon for the change of name is the fact that
petitioner is legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful, to say the
least, whether Rule 103 which refers to change of name in
general, may prevail over the specific provisions of Article 372
of the New Civil Code with regards to married women legally
separated from their husbands. Even, however, applying Rule
103 to this case, the fact of legal separation alone which is
the only basis for the petition at bar is, in our opinion, not a
sufficient ground to justify a change of the name of herein
petitioner, for to hold otherwise would be to provide an easy
circumvention of the mandatory provisions of Article 372.
It is true that in the second decision which reconsidered the first
it is stated that as the petitioner owns extensive business
interests, the continued used of her husband surname may
cause undue confusion in her finances and the eventual
liquidation of the conjugal assets. This finding is however
without basis. In the first place, these were not the causes upon
which the petition was based; hence, obviously no evidence to
this effect had been adduced. Secondly, with the issuance of the
decree of legal separation in 1958, the conjugal partnership
between petitioner and her husband had automatically been
dissolved and liquidated. (Art. 106[2], Civil Cod). Consequently,
there could be no more occasion for an eventual liquidation of
the conjugal assets.
WHEREFORE, the order of the lower court of December 1,
1960, granting the petition, is hereby set aside and the petition
dismissed. Without costs. So ordered. Bengzon, C.J., Padilla,
Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Paredes, Dizon, Regala and Makalintal, JJ., concur.
F. Reconciliation
How Done Art. 65
Effects Arts. 66-67
VII. Divorce
A. Foreign Divorces Art. 15, NCC, Art. 26, FC
Cases:
ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V.
ROMILLO, JR., as Presiding Judge of Branch CX, Regional

Trial Court of the National Capital Region Pasay City and

RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\ In this Petition for certiorari and
Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside
the Orders, dated September 15, 1983 and August 3, 1984, in
Civil Case No. 1075-P, issued by respondent Judge, which
denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the
Philippines while private respondent is a citizen of the United
States; that they were married in Hongkong in 1972; that, after
the marriage, they established their residence in the Philippines;
that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced
in Nevada, United States, in 1982; and that petitioner has remarried also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against
petitioner in Civil Case No. 1075-P of the Regional Trial Court,
Branch CXV, in Pasay City, stating that petitioner's business in
Ermita, Manila, (the Galleon Shop, for short), is conjugal
property of the parties, and asking that petitioner be ordered to
render an accounting of that business, and that private
respondent be declared with right to manage the conjugal
property. Petitioner moved to dismiss the case on the ground
that the cause of action is barred by previous judgment in the
divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below
denied the Motion to Dismiss in the mentioned case on the
ground that the property involved is located in the Philippines so
that the Divorce Decree has no bearing in the case. The denial
is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is
interlocutory and is not subject to appeal. certiorari and
Prohibition are neither the remedies to question the propriety of
an interlocutory order of the trial Court. However, when a grave
abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory
authority and to correct the error committed which, in such a
case, is equivalent to lack of jurisdiction. 1 Prohibition would
then lie since it would be useless and a waste of time to go
ahead with the proceedings. 2 Weconsider the petition filed in
this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties
and their alleged conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying
claim on the alleged conjugal property because of the
representation he made in the divorce proceedings before the
American Court that they had no community of property; that
the Galleon Shop was not established through conjugal funds,
and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued
by the Nevada Court cannot prevail over the prohibitive laws of

the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is
contrary to public policy, divest Philippine Courts of jurisdiction
to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine
whether the property relations between petitioner and private
respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or
upon any other regime. The pivotal fact in this case is the
Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had
obtained jurisdiction over petitioner who appeared in person
before the Court during the trial of the case. It also obtained
jurisdiction over private respondent who, giving his address as
No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the
divorce on the ground of incompatibility in the understanding
that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he
executed in favor of the law firm of KARP & GRAD LTD., 336 W.
Liberty, Reno, Nevada, to represent him in the divorce
proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file
an Answer, appear on my behalf and do an things necessary
and proper to represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground of
incompatibility.
2. That there is no community of property to be adjudicated by
the Court.
3. 'I'hat there are no community obligations to be adjudicated by
the court.
xxx xxx xxx 4
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree is
binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public
policy.
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, 5 only Philippine nationals are
covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality.
However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according
to their national law. 6 In this case, the divorce in Nevada
released private respondent from the marriage from the
standards of American law, under which divorce dissolves the
marriage. As stated by the Federal Supreme Court of the United
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of

matrimony by a court of competent jurisdiction are to change
the existing status or domestic relation of husband and wife,
and to free them both from the bond. The marriage tie when
thus severed as to one party, ceases to bind either. A husband
without a wife, or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a penalty. that the
guilty party shall not marry again, that party, as well as the
other, is still absolutely freed from the bond of the former
marriage.
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing to
sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate,
he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article
109, et. seq. of the Civil Code cannot be just. Petitioner should
not be obliged to live together with, observe respect and fidelity,
and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own
country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is
hereby ordered to dismiss the Complaint filed in Civil Case No.
1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la
Fuente and Patajo, JJ., concur.
FE D. QUITA, petitioner, vs. COURT OF APPEALS and
BLANDINA DANDAN,* respondents.
D E C I S I O N BELLOSILLO, J .: FE D. QUITA and Arturo T.
Padlan, both Filipinos, were married in the Philippines on 18
May 1941. They were not however blessed with
children. Somewhere along the way their relationship
soured. Eventually Fe sued Arturo for divorce in San Francisco,
California, U.S.A.She submitted in the divorce proceedings a
private writing dated 19 July 1950 evidencing their agreement to
live separately from each other and a settlement of their
conjugal properties. On 23 July 1954 she obtained a final
judgment of divorce. Three (3) weeks thereafter she married a
certain Felix Tupaz in the same locality but their relationship
also ended in a divorce. Still in the U.S.A., she married for the
third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972
Lino Javier Inciong filed a petition with the Regional Trial Court
of Quezon City for issuance of letters of administration
concerning the estate of Arturo in favor of the Philippine Trust

Company. Respondent Blandina Dandan (also referred to

as Blandina Padlan), claiming to be the surviving spouse of
Arturo Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida
and Yolanda, all surnamed Padlan, named in the petition as
surviving children of Arturo Padlan, opposed the petition and
prayed for the appointment instead of Atty. Leonardo Cabasal,
which was resolved in favor of the latter. Upon motion of the
oppositors themselves, Atty. Cabasal was later replaced by
Higino Castillon. On 30 April 1973 the oppositors (Blandina and
the Padlan children) submitted certified photocopies of the 19
July 1950 private writing and the final judgment of divorce
between petitioner and Arturo. Later Ruperto T. Padlan, claiming
to be the sole surviving brother of the deceased Arturo,
intervened.
On 7 October 1987 petitioner moved for the immediate
declaration of heirs of the decedent and the distribution of his
estate. At the scheduled hearing on 23 October 1987, private
respondent as well as the six (6) Padlan children and Ruperto
failed to appear despite due notice. On the same day, the trial
court required the submission of the records of birth of the
Padlan children within ten (10) days from receipt thereof, after
which, with or without the documents, the issue on the
declaration of heirs would be considered submitted for
resolution. The prescribed period lapsed without the required
documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which held that "a
foreign divorce between Filipino citizens sought and
decreed after the effectivity of the present Civil Code (Rep. Act
386) was not entitled to recognition as valid in this
jurisdiction,"[2] disregarded the divorce between petitioner and
Arturo. Consequently, it expressed the view that their marriage
subsisted until the death of Arturo in 1972. Neither did it
consider valid their extrajudicial settlement of conjugal
properties due to lack of judicial approval. [3] On the other hand,
it opined that there was no showing that marriage existed
between private respondent and Arturo, much less was it shown
that the alleged Padlan children had been acknowledged by the
deceased as his children with her. As regards Ruperto, it found
that he was a brother of Arturo. On 27 November 1987[4] only
petitioner and Ruperto were declared the intestate heirs of
Arturo. Accordingly, equal adjudication of the net hereditary
estate was ordered in favor of the two intestate heirs. [5]
On motion for reconsideration, Blandina and the Padlan children
were allowed to present proofs that the recognition of the
children by the deceased as his legitimate children, except
Alexis who was recognized as his illegitimate child, had been
made in their respective records of birth. Thus on 15 February
1988[6] partial reconsideration was granted declaring the Padlan
children, with the exception of Alexis, entitled to one-half of the
estate to the exclusion of Ruperto Padlan, and petitioner to the
other half.[7] Private respondent was not declared an
heir.Although it was stated in the aforementioned records of
birth that she and Arturo were married on 22 April 1947, their

marriage was clearly void since it was celebrated during the

existence of his previous marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her
children assigned as one of the errors allegedly committed by
the trial court the circumstance that the case was decided
without a hearing, in violation of Sec. 1, Rule 90, of the Rules of
Court, which provides that if there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in
ordinary cases.
Respondent appellate court found this ground alone sufficient to
sustain the appeal; hence, on 11 September 1995 it declared
null and void the 27 November 1987 decision and 15 February
1988 order of the trial court, and directed the remand of the
case to the trial court for further proceedings. [8] On 18 April 1996
it denied reconsideration.[9]
Should this case be remanded to the lower court for further
proceedings? Petitioner insists that there is no need because,
first, no legal or factual issue obtains for resolution either as to
the heirship of the Padlan children or as to their respective
shares in the intestate estate of the decedent; and, second, the
issue as to who between petitioner and private respondent is
the proper heir of the decedent is one of law which can be
resolved in the present petition based on established facts and
admissions of the parties.
We cannot sustain petitioner. The provision relied upon by
respondent court is clear: If there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in
ordinary cases.
We agree with petitioner that no dispute exists either as to the
right of the six (6) Padlan children to inherit from the decedent
because there are proofs that they have been duly
acknowledged by him and petitioner herself even recognizes
them as heirs of Arturo Padlan;[10] nor as to their respective
hereditary shares. But controversy remains as to who is the
legitimate surviving spouse of Arturo. The trial court, after the
parties other than petitioner failed to appear during the
scheduled hearing on 23 October 1987 of the motion for
immediate declaration of heirs and distribution of estate, simply
issued an order requiring the submission of the records of birth
of the Padlan children within ten (10) days from receipt thereof,
after which, with or without the documents, the issue on
declaration of heirs would be deemed submitted for resolution.
We note that in her comment to petitioner's motion private
respondent raised, among others, the issue as to whether
petitioner was still entitled to inherit from the decedent
considering that she had secured a divorce in the U.S.A. and in
fact had twice remarried. She also invoked the above quoted
procedural rule.[11] To this, petitioner replied that Arturo was a
Filipino and as such remained legally married to her in spite of
the divorce they obtained.[12] Reading between the lines, the

implication is that petitioner was no longer a Filipino citizen at

the time of her divorce from Arturo. This should have prompted
the trial court to conduct a hearing to establish her
citizenship. The purpose of a hearing is to ascertain the truth of
the matters in issue with the aid of documentary and testimonial
evidence as well as the arguments of the parties either
supporting or opposing the evidence. Instead, the lower court
perfunctorily settled her claim in her favor by merely
applying the ruling in Tenchavez v. Escao.
Then in private respondent's motion to set aside and/or
reconsider the lower court's decision she stressed that the
citizenship of petitioner was relevant in the light of the ruling
in Van Dorn v. Romillo Jr.[13] that aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. She prayed
therefore that the case be set for hearing. [14] Petitioner opposed
the motion but failed to squarely address the issue on her
citizenship.[15] The trial court did not grant private respondent's
prayer for a hearing but proceeded to resolve her motion with
the finding that both petitioner and Arturo were "Filipino citizens
and were married in the Philippines." [16] It maintained that their
divorce obtained in 1954 in San Francisco, California, U.S.A.,
was not valid in Philippine jurisdiction.We deduce that the
finding on their citizenship pertained solely to the time
of their marriage as the trial court was not supplied with a basis
to determine petitioner's citizenship at the time of
their divorce. The doubt persisted as to whether she was still a
Filipino citizen when their divorce was decreed. The trial court
must have overlooked the materiality of this aspect. Once
proved that she was no longer a Filipino citizen at the time of
their divorce, Van Dorn would become applicable and petitioner
could very well lose her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's
citizenship;[17] it did not merit enlightenment however from
petitioner.[18] In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even
furnishes the Court with the transcript of stenographic notes
taken on 5 May 1995 during the hearing for the reconstitution of
the original of a certain transfer certificate title as well as the
issuance of new owner's duplicate copy thereof before another
trial court. When asked whether she was an American citizen
petitioner answered that she was since 1954. [19] Significantly,
the decree of divorce of petitioner and Arturo was obtained in
the same year. Petitioner however did not bother to file a reply
memorandum to erase the uncertainty about her citizenship at
the time of their divorce, a factual issue requiring hearings to be
conducted by the trial court. Consequently, respondent
appellate court did not err in ordering the case returned to the
trial court for further proceedings.
We emphasize however that the question to be determined by
the trial court should be limited only to the right of petitioner to
inherit from Arturo as his surviving spouse. Private respondent's
claim to heirship was already resolved by the trial court. She
and Arturo were married on 22 April 1947 while the prior

marriage of petitioner and Arturo was subsisting thereby

resulting in a bigamous marriage considered void from the
beginning under Arts. 80 and 83 of the Civil
Code. Consequently, she is not a surviving spouse that can
inherit from him as this status presupposes a legitimate
relationship.[20]
As regards the motion of private respondent for petitioner and
her counsel to be declared in contempt of court and that the
present petition be dismissed for forum shopping, [21] the same
lacks merit. For forum shopping to exist the actions must involve
the same transactions and same essential facts and
circumstances. There must also be identical causes of action,
subject matter and issue. [22] The present petition deals with
declaration of heirship while the subsequent petitions filed
before the three (3) trial courts concern the issuance of new
owner's duplicate copies of titles of certain properties belonging
to the estate of Arturo. Obviously, there is no reason to declare
the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals ordering the remand of the case to
the court of origin for further proceedings and declaring null and
void its decision holding petitioner Fe D. Quita and Ruperto T.
Padlan as intestate heirs isAFFIRMED. The order of the
appellate court modifying its previous decision by granting onehalf (1/2) of the net hereditary estate to the Padlan children,
namely, Claro, Ricardo, Emmanuel, Zenaida and Yolanda, with
the exception of Alexis, all surnamed Padlan, instead of Arturo's
brother Ruperto Padlan, is likewise AFFIRMED. The Court
however emphasizes that the reception of evidence by the trial
court should be limited to the hereditary rights of petitioner as
the surviving spouse of Arturo Padlan.
The motion to declare petitioner and her counsel in contempt of
court and to dismiss the present petition for forum shopping
is DENIED. SO ORDERED. Puno, Mendoza, and Martinez,
JJ., concur.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIARECIO, petitioner, vs. REDERICK A. RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained
the divorce must be proven.Our courts do not take judicial
notice of foreign laws and judgments; hence, like any other
facts, both the divorce decree and the national law of the alien
must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of
Court, seeking to nullify the January 7, 1999 Decision [1] and the
March 24, 1999 Order[2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The
assailed Decision disposed as follows:

WHEREFORE, this Court declares the marriage between Grace

J. Garcia and Rederick A. Recio solemnized on January 12,
1994 at Cabanatuan City as dissolved and both parties can now
remarry under existing and applicable laws to any and/or both
parties.[3]
The assailed Order denied reconsideration of the above-quoted
Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987. [4] They
lived together as husband and wife in Australia. On May 18,
1989, [5] a decree of divorce, purportedly dissolving the
marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as
shown by a Certificate of Australian Citizenship issued by the
Australian government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City. [7] In
their application for a marriage license, respondent was
declared as single and Filipino. [8]
Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia. [9]
On March 3, 1998, petitioner filed a Complaint for Declaration of
Nullity of Marriage[10] in the court a quo, on the ground of bigamy
-- respondent allegedly had a prior subsisting marriage at the
time he married her on January 12, 1994. She claimed that she
learned of respondents marriage to Editha Samson only in
November, 1997.
In his Answer, respondent averred that, as far back as 1993, he
had revealed to petitioner his prior marriage and its subsequent
dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce
decree obtained in Australia in 1989; [12] thus, he was legally
capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding
and while the suit for the declaration of nullity was pending -respondent was able to secure a divorce decree from a family
court in Sydney, Australia because the marriage ha[d]
irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be
dismissed on the ground that it stated no cause of action. [14] The
Office of the Solicitor General agreed with respondent. [15] The
court marked and admitted the documentary evidence of both
parties.[16] After they submitted their respective memoranda, the
case was submitted for resolution.[17]
Thereafter, the trial court rendered the assailed Decision and
Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground
that the divorce issued in Australia was valid and recognized in
the Philippines. It deemed the marriage ended, but not on the

basis of any defect in an essential element of the marriage; that

is, respondents alleged lack of legal capacity to remarry. Rather,
it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage;
thus, there was no more marital union to nullify or annul.
Hence, this Petition.[18]
Issues
Petitioner submits the following issues for our consideration:
1 The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated his
first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
2 The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the
petitioners marriage to the respondent
3 The trial court seriously erred in the application of Art. 26 of
the Family Code in this case.
4 The trial court patently and grievously erred in disregarding
Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.
5 The trial court gravely erred in pronouncing that the divorce
decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first securing a
recognition of the judgment granting the divorce decree before
our courts.[19]
The Petition raises five issues, but for purposes of this Decision,
we shall concentrate on two pivotal ones: (1) whether the
divorce between respondent and Editha Samson was proven,
and (2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha
Samson
Petitioner assails the trial courts recognition of the divorce
between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,[20] petitioner argues that the divorce decree,
like any other foreign judgment, may be given recognition in this
jurisdiction only upon proof of the existence of (1) the foreign
law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first paragraph of Article 26 of
the Family Code, marriages solemnized abroad are governed
by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of
the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the
marriage was performed.
At the outset, we lay the following basic legal principles as the
take-off points for our discussion. Philippine law does not

provide for absolute divorce; hence, our courts cannot grant it.
[21]
A marriage between two Filipinos cannot be dissolved even
by a divorce obtained abroad, because of Articles 15 [22] and
17[23] of the Civil Code.[24] In mixed marriages involving a Filipino
and a foreigner, Article 26[25] of the Family Code allows the
former to contract a subsequent marriage in case the divorce is
validly obtained abroad by the alien spouse capacitating him or
her to remarry.[26] A divorce obtained abroad by a couple, who
are both aliens, may be recognized in the Philippines, provided
it is consistent with their respective national laws. [27]
A comparison between marriage and divorce, as far as pleading
and proof are concerned, can be made. Van Dorn v. Romillo
Jr. decrees that aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they are valid
according to their national law. [28]Therefore, before a foreign
divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it. [29] Presentation solely of
the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted
in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall
specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her
previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the childrens presumptive legitimes
shall be recorded in the appropriate civil registry and registries
of property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian
divorce decree is a public document -- a written official act of an
Australian family court. Therefore, it requires no further proof of
its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the document
must first be presented and admitted in evidence. [30] A divorce
obtained abroad is proven by the divorce decree itself. Indeed

the best evidence of a judgment is the judgment itself. [31] The

decree purports to be a written act or record of an act of an
official body or tribunal of a foreign country. [32]
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official record
of a foreign country by either (1) an official publication or (2) a
copy thereof attested[33] by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family
court.[35] However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan
City.[36] The trial court ruled that it was admissible, subject to
petitioners qualification.[37] Hence, it was admitted in evidence
and accorded weight by the judge. Indeed, petitioners failure to
object properly rendered the divorce decree admissible as a
written act of the Family Court of Sydney, Australia. [38]
Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer bound
by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of adopting
an alien and clothing him with the political and civil rights
belonging to a citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their
adoptive countries. By becoming an Australian, respondent
severed his allegiance to the Philippines and the vinculum
juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian
divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree
and was cognizant of the marital laws of Australia, because she
had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign
laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party
who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action. [41] In civil cases, plaintiffs
have the burden of proving the material allegations of the
complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations
in their answer when they introduce new matters. [42] Since the
divorce was a defense raised by respondent, the burden of

proving the pertinent Australian law validating it falls squarely

upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws. [43] Like any other facts, they must
be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of
their judicial function.[44]The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree, which
was validly admitted in evidence, adequately established his
legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for
a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce ora mensa et thoro. The first
kind terminates the marriage, while the second suspends it and
leaves the bond in full force.[45] There is no showing in the case
at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree
-- a conditional or provisional judgment of divorce. It is in effect
the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed
period during which no reconciliation is effected. [46]
Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be
limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from
marrying again. The court may allow a remarriage only after
proof of good behavior.[47]
On its face, the herein Australian divorce decree contains a
restriction that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the
offence of bigamy.[48]
This quotation bolsters our contention that the divorce obtained
by respondent may have been restricted. It did not absolutely
establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso
facto restored respondents capacity to remarry despite the
paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to
his civil status based on Section 48, Rule 39 [49] of the Rules of
Court, for the simple reason that no proof has been presented

on the legal effects of the divorce decree obtained under

Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required
by Article 21 of the Family Code was not submitted together
with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to
remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The
certificate mentioned in Article 21 of the Family Code would
have been sufficient to establish the legal capacity of
respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of
legal capacity to marry on the part of the alien applicant for a
marriage license.[50]
As it is, however, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner. A review of the
records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a)
Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage
Between Rederick A. Recio (Filipino-Australian) and Grace J.
Garcia (Filipino) on January 12, 1994 in Cabanatuan City,
Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian)
on March 1, 1987 in Malabon, Metro Manila; [53] (d) Exhibit D
Office of the City Registrar of Cabanatuan City Certification that
no information of annulment between Rederick A. Recio and
Editha D. Samson was in its records; [54] and (e) Exhibit E
Certificate of Australian Citizenship of Rederick A. Recio; [55] (2)
for respondent: (a) Exhibit 1 -- Amended Answer; [56] (b) Exhibit 2
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in
the Family Court of Australia; [57] (c) Exhibit 3 Certificate of
Australian Citizenship of Rederick A. Recio; [58](d) Exhibit 4
Decree Nisi of Dissolution of Marriage in the Family Court of
Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of
the Legal Separation Between Rederick A. Recio and Grace J.
Garcia Recio since October 22, 1995. [60]
Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian citizen, was
legally capacitated to marry petitioner on January 12, 1994. We
agree with petitioners contention that the court a quo erred in
finding that the divorce decree ipso facto clothed respondent
with the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage
to respondent null and void on the ground of bigamy. After all, it
may turn out that under Australian law, he was really
capacitated to marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious course is to
remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing

in that, then the court a quo may declare a nullity of the parties
marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both
obtained in the Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City dated January
12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a quo for
the purpose of receiving evidence which conclusively show
respondents legal capacity to marry petitioner; and failing in
that, of declaring the parties marriage void on the ground of
bigamy, as above discussed. No costs.
SO ORDERED. Melo, (Chairman), Vitug, and SandovalGutierrez, JJ., concur.
FACTS: Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian Citizen, in Malabon, Rizal on March 1,
1987. They lived as husband and wife in Australia. However,
an Australian family court issued purportedly a decree of
divorce, dissolving the marriage of Rederick and Editha on May
18, 1989.
On January 12, 1994, Rederick married Grace J. Garcia where
it was solemnized at Our lady of Perpetual Help Church,
Cabanatuan City. Since October 22, 1995, the couple lived
separately without prior judicial dissolution of their marriage. As
a matter of fact, while they were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.
Grace filed a Complaint for Declaration of Nullity of Marriage on
the ground of bigamy on March 3, 1998, claiming that she
learned only in November 1997, Redericks marriage with
Editha Samson.
ISSUE: Whether the decree of divorce submitted by Rederick
Recio is admissible as evidence to prove his legal capacity to
marry petitioner and absolved him of bigamy.
HELD: The nullity of Redericks marriage with Editha as shown
by the divorce decree issued was valid and recognized in the
Philippines since the respondent is a naturalized Australian.
However, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner though the
former presented a divorce decree. The said decree, being a
foreign document was inadmissible to court as evidence
primarily because it was not authenticated by the consul/
embassy of the country where it will be used.
Under Sections 24 and 25 of Rule 132, a writing or document
may be proven as a public or official record of a foreign country
by either:
(1) an official publication or
(2) a copy thereof attested by the officer having legal custody of
the document. If the record is not kept in the Philippines, such
copy must be:
(a) accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in
the foreign country in which the record is kept and
(b) authenticated by the seal of his office.

Thus, the Supreme Court remands the case to the Regional

Trial Court of Cabanatuan City to receive or trial evidence that
will conclusively prove respondents legal capacity to marry
petitioner and thus free him on the ground of bigamy.

REPUBLIC OF THE PHILIPPINES vs. CIPRIANO ORBECIDO

III
G. R. No. 154380 October 5, 2005
DECISION
QUISUMBING, J.: Given a valid marriage between two Filipino
citizens, where one party is later naturalized as a foreign citizen
and obtains a valid divorce decree capacitating him or her to
remarry, can the Filipino spouse likewise remarry under
Philippine law?
Before us is a case of first impression that behooves the Court
to make a definite ruling on this apparently novel question,
presented as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision[1] dated May 15, 2002, of the Regional Trial Court
of Molave, Zamboanga del Sur, Branch 23 and
its Resolution[2] dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry.
The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second
paragraph of Art. 26 of the Family Code and by reason of the
divorce decree obtained against him by his American wife, the
petitioner is given the capacity to remarry under the Philippine
Law.
IT IS SO ORDERED.[3]
The factual antecedents, as narrated by the trial court, are as
follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M.
Villanueva at the United Church of Christ in the Philippines in
Lam-an, Ozamis City. Their marriage was blessed with a son
and a daughter, Kristoffer Simbortriz V. Orbecido and Lady
Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along
their son Kristoffer. A few years later, Cipriano discovered that
his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree
and then married a certain Innocent Stanley. She, Stanley and
her child by him currently live at
5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority
to remarry invoking Paragraph
2 of Article 26 of the Family Code. No opposition was filed.
Finding merit in the petition, the court granted the same. The
Republic, herein petitioner, through the Office of the Solicitor
General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER
ARTICLE 26 OF THE FAMILY CODE[4]
The OSG contends that Paragraph 2 of Article 26 of the Family
Code is not applicable to the instant case because it only
applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy,
according to the OSG, is to file a petition for annulment or for
legal separation.[5] Furthermore, the OSG argues there is no law
that governs respondents situation. The OSG posits that this is
a matter of legislation and not of judicial determination. [6]
For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized alien
wife obtained a divorce decree which capacitated her to
remarry, he is likewise capacitated by operation of law pursuant
to Section 12, Article II of the Constitution. [7]
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the
Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petitionAny person interested under a
deed, will, contract or other written instrument, or whose rights
are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before breach
or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there
must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the controversy; and (4)
that the issue is ripe for judicial determination. [8]
This case concerns the applicability of Paragraph 2 of Article 26
to a marriage between two Filipino citizens where one later
acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its
duty to protect the institution of marriage while respondent, a
private citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries,
litigation ensues and puts into question the validity of his second
marriage.
Coming now to the substantive issue, does Paragraph 2 of
Article 26 of the Family Code apply to the case of respondent?
Necessarily, we must dwell on how this provision had come
about in the first place, and what was the intent of the legislators
in its enactment?
Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law

Executive Order No. 209, otherwise known as the Family Code,
which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now
provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern
the situation presented by the case at hand. It seems to apply
only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on,
the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to
remarry, and indeed she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings [9] on the Family
Code, the Catholic Bishops Conference of the Philippines
(CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those
whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of
divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered to
be validly divorced here and can re-marry. We propose that this
be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according to
Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining
a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the

1985 case of Van Dorn v.
Romillo, Jr.[10] The Van Dorn case involved a marriage between
a Filipino citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is valid in
the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of
the celebration of the marriage, the parties were Filipino
citizens, but later on, one of them obtains a foreign citizenship
by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita
v. Court of Appeals.[11] In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in
the same year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized foreign spouse
is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article
26 should be interpreted to include cases involving parties who,
at the time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other
party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its
exact and literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far
as necessary the letter of the law. A statute may therefore be
extended to cases not within the literal meaning of its terms, so
long as they come within its spirit or intent. [12]
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce is no longer
married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at
the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce

capacitating her to remarry. Clearly, the twin requisites for the

application of Paragraph 2 of Article 26 are both present in this
case. Thus Cipriano, the divorced Filipino spouse, should be
allowed to remarry.
We are also unable to sustain the OSGs theory that the proper
remedy of the Filipino spouse is to file either a petition for
annulment or a petition for legal separation. Annulment would
be a long and tedious process, and in this particular case, not
even feasible, considering that the marriage of the parties
appears to have all the badges of validity. On the other hand,
legal separation would not be a sufficient remedy for it would
not sever the marriage tie; hence, the legally separated Filipino
spouse would still remain married to the naturalized alien
spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondents wife. It is settled
rule that one who alleges a fact has the burden of proving it and
mere allegation is not evidence. [13]
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an
American citizen. Likewise, before a foreign divorce decree can
be recognized by our own courts, the party pleading it must
prove the divorce as a fact and demonstrate its conformity to
the foreign law allowing it. [14] Such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws.
Like any other fact, such laws must be alleged and proved.
[15]
Furthermore, respondent must also show that the divorce
decree allows his former wife to remarry as specifically required
in Article 26. Otherwise, there would be no evidence sufficient to
declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph
2 of Article 26 of the Family Code (E.O. No. 209, as amended
by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired
foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient
evidence submitted and on record, we are unable to declare,
based on respondents bare allegations that his wife, who was
naturalized as an American citizen, had obtained a divorce
decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made
properly upon respondents submission of the aforecited
evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are hereby SET
ASIDE.
No pronouncement as to costs.
SO ORDERED.
Facts:This is a petition for review on certiorari of the decision
and resolution of the Regional Trial Court of Molave, Zamboaga
del Sur, Branch 23, granting respondents petition for authority

to remarry invoking par. 2 of Article 26 of the Family Code.

On May 24, 1981, Cipriano Orbecido III and Lady Myros
Villanueva were married in Lam-an, Ozamis City and were
blessed with a son and a daughter. In 1986, Lady Myros left for
the U. S. bringing along their son and after a few years she was
naturalized
as
an
American
citizen.
Sometime in 2000, respondent Orbecido learned from his son
who was living with his wife in the States that his wife had
remarried after obtaining her divorce decree. Thereafter, he filed
a petition for authority to remarry with the trial court invoking
par.
2
of Art.
26
of
the
Family
Code.
Having no opposition, on May 15, 2002, the Regional Trial Court
of Zamboanga del Sur granted the petition of the respondent
and
allowed
him
to
remarry.
The Solicitor Generals motion for reconsideration was denied.
In view of that, petitioner filed this petition for review on
certiorari of the Decision of the Regional Trial Court. Herein
petitioner raised the issue of the applicability of Art. 26 par. 2 to
the
instant
case.
Issue: WHETHER OR NOT RESPONDENT CAN REMARRY
UNDER THE ARTICLE 26 OF THE FAMILY CODE OF THE
PHILIPPINES.
Held: Respondent Orbecido who has the burden of proof, failed
to submit competent evidence showing his allegations that his
naturalized American wife had obtained a divorce decree and
had remarried. Therefore, the Petition of the Republic of the
Philippines is GRANTED. The Decision and Resolution of the
RTC Br. 32 of Molave, Zamboanga del Sur is hereby SET
ASIDE.
Art. 26 (2) Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry
under
the
Philippine
laws.
Article 26 par. 2 of the Family Code only applies to case where
at the time of the celebration of the marriage, the parties are a
Filipino citizen and a foreigner. The instant case is one where at
the time the marriage was solemnized, the parties were two
Filipino citizens, but later on, the wife was naturalized as an
American citizen and subsequently obtained a divorce granting
her capacity to remarry, and indeed she remarried an American
citizen while residing in the U. S. A. Therefore, the 2nd par. of
Art. 26 does not apply to the instant case.
However, the legislative intent must be taken into consideration
and rule of reason must be applied. The Supreme Court ruled
that par. 2 of Art. 26 should be construed and interpreted to
include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on,
one of then becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should likewise
be allowed to remarry as if the other party were a foreigner at
the time of the solemnization of the marriage. To rule otherwise
would be sanction absurdity and injustice. Were the
interpretation of a statute according to its exact and literal import

would lead to mischievous results or contravene the clear

purpose of the legislature, it should be construed according to
its spirit and reason, disregarding as far as necessary the letter
of the law. A stature may therefore be extended to case not
within the literal meaning of its terms, so long as they come
within its spirits or intent.
GERBERT R. CORPUZ, Petitioner, vs. DAISYLYN TIROL STO.
TOMAS and The SOLICITOR GENERAL, Respondents.
D E C I S I O N BRION, J.: Before the Court is a direct appeal
from the decision1 of the Regional Trial Court (RTC) of Laoag
City, Branch 11, elevated via a petition for review on
certiorari2 under Rule 45 of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who
acquired Canadian citizenship through naturalization on
November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig
City.4 Due to work and other professional commitments, Gerbert
left for Canada soon after the wedding. He returned to the
Philippines sometime in April 2005 to surprise Daisylyn, but was
shocked to discover that his wife was having an affair with
another man. Hurt and disappointed, Gerbert returned to
Canada and filed a petition for divorce. The Superior Court of
Justice, Windsor, Ontario, Canada granted Gerberts petition for
divorce on December 8, 2005. The divorce decree took effect a
month later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has
found another Filipina to love. Desirous of marrying his new
Filipina fiance in the Philippines, Gerbert went to the Pasig City
Civil Registry Office and registered the Canadian divorce
decree on his and Daisylyns marriage certificate. Despite the
registration of the divorce decree, an official of the National
Statistics Office (NSO) informed Gerbert that the marriage
between him and Daisylyn still subsists under Philippine law; to
be enforceable, the foreign divorce decree must first be
judicially recognized by a competent Philippine court, pursuant
to NSO Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of
foreign divorce and/or declaration of marriage as dissolved
(petition) with the RTC. Although summoned, Daisylyn did not
file any responsive pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no opposition
to Gerberts petition and, in fact, alleged her desire to file a
similar case herself but was prevented by financial and personal
circumstances. She, thus, requested that she be considered as
a party-in-interest with a similar prayer to Gerberts.
In its October 30, 2008 decision, 7 the RTC denied Gerberts
petition. The RTC concluded that Gerbert was not the proper
party to institute the action for judicial recognition of the foreign
divorce decree as he is a naturalized Canadian citizen. It ruled
that only the Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code, 8 in order for
him or her to be able to remarry under Philippine law. 9 Article 26
of the Family Code reads:

Art. 26. All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
under Philippine law.
This conclusion, the RTC stated, is consistent with the
legislative intent behind the enactment of the second paragraph
of Article 26 of the Family Code, as determined by the Court in
Republic v. Orbecido III;10 the provision was enacted to "avoid
the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse." 11
THE PETITION From the RTCs ruling,12 Gerbert filed the
present petition.13
Gerbert asserts that his petition before the RTC is essentially for
declaratory relief, similar to that
filed in Orbecido; he, thus, similarly asks for a determination of
his rights under the second paragraph of Article 26 of the Family
Code. Taking into account the rationale behind the second
paragraph of Article 26 of the Family Code, he contends that the
provision applies as well to the benefit of the alien spouse. He
claims that the RTC ruling unduly stretched the doctrine in
Orbecido by limiting the standing to file the petition only to the
Filipino spouse an interpretation he claims to be contrary to
the essence of the second paragraph of Article 26 of the Family
Code. He considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as there is a
possibility that he might be prosecuted for bigamy if he marries
his Filipina fiance in the Philippines since two marriage
certificates, involving him, would be on file with the Civil
Registry Office. The Office of the Solicitor General and Daisylyn,
in their respective Comments,14 both support Gerberts position.
Essentially, the petition raises the issue of whether the second
paragraph of Article 26 of the Family Code extends to aliens the
right to petition a court of this jurisdiction for the recognition of a
foreign divorce decree.
THE COURTS RULING The alien spouse can claim no right
under the second paragraph of Article 26 of the Family Code as
the substantive right it establishes is in favor of the Filipino
spouse
The resolution of the issue requires a review of the legislative
history and intent behind the second paragraph of Article 26 of
the Family Code.
The Family Code recognizes only two types of defective
marriages void15 and voidable16 marriages. In both cases, the
basis for the judicial declaration of absolute nullity or annulment
of the marriage exists before or at the time of the marriage.
Divorce, on the other hand, contemplates the dissolution of the
lawful union for cause arising after the marriage. 17 Our family

laws do not recognize absolute divorce between Filipino

citizens.18
Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino,
in the exercise of her legislative powers under the Freedom
Constitution,19 enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording,
as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
under Philippine law.
Through the second paragraph of Article 26 of the Family Code,
EO 227 effectively incorporated into the law this Courts holding
in Van Dorn v. Romillo, Jr. 20 and Pilapil v. Ibay-Somera.21 In both
cases, the Court refused to acknowledge the alien spouses
assertion of marital rights after a foreign courts divorce decree
between the alien and the Filipino. The Court, thus, recognized
that the foreign divorce had already severed the marital bond
between the spouses. The Court reasoned in Van Dorn v.
Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has
to be considered still married to [the alien spouse] and still
subject to a wife's obligations x x x cannot be just. [The Filipino
spouse] should not be obliged to live together with, observe
respect and fidelity, and render support to [the alien spouse].
The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice
are to be served.22
As the RTC correctly stated, the provision was included in the
law "to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse." 23 The
legislative intent is for the benefit of the Filipino spouse, by
clarifying his or her marital status, settling the doubts created by
the divorce decree. Essentially, the second paragraph of Article
26 of the Family Code provided the Filipino spouse a
substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to
remarry.24 Without the second paragraph of Article 26 of the
Family Code, the judicial recognition of the foreign decree of
divorce, whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding, would be
of no significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital
bond;25 Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments

promulgated in a foreign country. The inclusion of the second

paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his
or her alien spouse.
Additionally, an action based on the second paragraph of Article
26 of the Family Code is not limited to the recognition of the
foreign divorce decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts can declare
that the Filipino spouse is likewise capacitated to contract
another marriage. No court in this jurisdiction, however, can
make a similar declaration for the alien spouse (other than that
already established by the decree), whose status and legal
capacity are generally governed by his national law. 26
Given the rationale and intent behind the enactment, and the
purpose of the second paragraph of Article 26 of the Family
Code, the RTC was correct in limiting the applicability of the
provision for the benefit of the Filipino spouse. In other words,
only the Filipino spouse can invoke the second paragraph of
Article 26 of the Family Code; the alien spouse can claim no
right under this provision.
The foreign divorce decree is presumptive evidence of a right
that clothes the party with legal interest to petition for its
recognition in this jurisdiction
We qualify our above conclusion i.e., that the second
paragraph of Article 26 of the Family Code bestows no rights in
favor of aliens with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerberts petition
before the RTC. In other words, the unavailability of the second
paragraph of Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition the RTC for
the recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity with
the aliens national law have been duly proven according to our
rules of evidence, serves as a presumptive evidence of right in
favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules
of Court which provides for the effect of foreign judgments. This
Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect
of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as
follows:
(a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title of the thing;
and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the
foreign judgment is sufficient to clothe a party with the requisite

interest to institute an action before our courts for the

recognition of the foreign judgment. In a divorce situation, we
have declared, no less, that the divorce obtained by an alien
abroad may be recognized in the Philippines, provided the
divorce is valid according to his or her national law. 27
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a tribunal of
another country."28 This means that the foreign judgment and its
authenticity must be proven as facts under our rules on
evidence, together with the aliens applicable national law to
show the effect of the judgment on the alien himself or
herself.29 The recognition may be made in an action instituted
specifically for the purpose or in another action where a party
invokes the foreign decree as an integral aspect of his claim or
defense.
In Gerberts case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to
obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes into
play. This Section requires proof, either by (1) official
publications or (2) copies attested by the officer having legal
custody of the documents. If the copies of official records are
not kept in the Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his
office.
The records show that Gerbert attached to his petition a copy of
the divorce decree, as well as the required certificates proving
its authenticity,30 but failed to include a copy of the Canadian law
on divorce.31 Under this situation, we can, at this point, simply
dismiss the petition for insufficiency of supporting evidence,
unless we deem it more appropriate to remand the case to the
RTC to determine whether the divorce decree is consistent with
the Canadian divorce law.
We deem it more appropriate to take this latter course of action,
given the Article 26 interests that will be served and the Filipina
wifes (Daisylyns) obvious conformity with the petition. A
remand, at the same time, will allow other interested parties to
oppose the foreign judgment and overcome a petitioners
presumptive evidence of a right by proving want of jurisdiction,
want of notice to a party, collusion, fraud, or clear mistake of law
or fact. Needless to state, every precaution must be taken to
ensure conformity with our laws before a recognition is made,
as the foreign judgment, once recognized, shall have the effect
of res judicata32 between the parties, as provided in Section 48,
Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is served by the
practice of reciprocal recognition of foreign judgments between
nations, the res judicata effect of the foreign judgments of
divorce serves as the deeper basis for extending judicial

recognition and for considering the alien spouse bound by its

terms. This same effect, as discussed above, will not obtain for
the Filipino spouse were it not for the substantive rule that the
second paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce
decree
As a matter of "housekeeping" concern, we note that the Pasig
City Civil Registry Office has already recorded the divorce
decree on Gerbert and Daisylyns marriage certificate based on
the mere presentation of the decree. 34We consider the recording
to be legally improper; hence, the need to draw attention of the
bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons shall be
recorded in the civil register." The law requires the entry in the
civil registry of judicial decrees that produce legal
consequences touching upon a persons legal capacity and
status, i.e., those affecting "all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not." 35
A judgment of divorce is a judicial decree, although a foreign
one, affecting a persons legal capacity and status that must be
recorded. In fact, Act No. 3753 or the Law on Registry of Civil
Status specifically requires the registration of divorce decrees in
the civil registry:
Sec. 1. Civil Register. A civil register is established for
recording the civil status of persons, in which shall be entered:
(a) births; (b) deaths; (c) marriages; (d) annulments of
marriages; (e) divorces;(f) legitimations;
(g) adoptions; (h) acknowledgment of natural children; (i)
naturalization; and (j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep
and preserve in their offices the following books, in which they
shall, respectively make the proper entries concerning the civil
status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the
marriages solemnized but also divorces and dissolved
marriages.
(3) Legitimation, acknowledgment, adoption, change of name
and naturalization register.
But while the law requires the entry of the divorce decree in the
civil registry, the law and the submission of the decree by
themselves do not ipso facto authorize the decrees registration.
The law should be read in relation with the requirement of a
judicial recognition of the foreign judgment before it can be
given res judicata effect. In the context of the present case, no
judicial order as yet exists recognizing the foreign divorce
decree. Thus, the Pasig City Civil Registry Office acted totally
out of turn and without authority of law when it annotated the
Canadian divorce decree on Gerbert and Daisylyns marriage

certificate, on the strength alone of the foreign decree presented

by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the
requirement of a court recognition, as it cited NSO Circular No.
4, series of 1982,36 and Department of Justice Opinion No. 181,
series of 198237 both of which required a final order from a
competent Philippine court before a foreign judgment, dissolving
a marriage, can be registered in the civil registry, but it,
nonetheless, allowed the registration of the decree. For being
contrary to law, the registration of the foreign divorce decree
without the requisite judicial recognition is patently void and
cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition
that the RTC may extend to the Canadian divorce decree does
not, by itself, authorize the cancellation of the entry in the civil
registry. A petition for recognition of a foreign judgment is not
the proper proceeding, contemplated under the Rules of Court,
for the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil
register shall be changed or corrected, without judicial order."
The Rules of Court supplements Article 412 of the Civil Code by
specifically providing for a special remedial proceeding by which
entries in the civil registry may be judicially cancelled or
corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the cancellation or
correction, may be annotated in the civil registry. It also
requires, among others, that the verified petition must be filed
with the RTC of the province where the corresponding civil
registry is located;38that the civil registrar and all persons who
have or claim any interest must be made parties to the
proceedings;39and that the time and place for hearing must be
published in a newspaper of general circulation. 40 As these
basic jurisdictional requirements have not been met in the
present case, we cannot consider the petition Gerbert filed with
the RTC as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be
construed as requiring two separate proceedings for the
registration of a foreign divorce decree in the civil registry one
for recognition of the foreign decree and another specifically for
cancellation of the entry under Rule 108 of the Rules of Court.
The recognition of the foreign divorce decree may be made in a
Rule 108 proceeding itself, as the object of special proceedings
(such as that in Rule 108 of the Rules of Court) is precisely to
establish the status or right of a party or a particular fact.
Moreover, Rule 108 of the Rules of Court can serve as the
appropriate adversarial proceeding 41 by which the applicability
of the foreign judgment can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari,
and REVERSE the October 30, 2008 decision of the Regional
Trial Court of Laoag City, Branch 11, as well as its February 17,
2009 order. We order the REMAND of the case to the trial court

for further proceedings in accordance with our ruling above. Let

a copy of this Decision be furnished the Civil Registrar General.
No costs. SO ORDERED.
Corpuz
vs.
Sto.
Tomas
Case
Digest
G.R.
No. 186571, August 11, 2010
FACTS: Gerbert Corpuz, a former Filipino citizen but now a
naturalized Canadian, married Daisylyn Sto. Tomas, a Filipina.
He soon left to Canada after their wedding due to work
commitments. He returned to Philippines on April 2005 only to
find out Daisylyn has an affair with another man. Gerbert
returned to Canada to file a divorce that took effect on January
2006.
Two years later, he found another Filipina and wanted to marry
her in the Philippines. He went to Pasig City Registrar's Office to
register his Canadian divorce decree but was denied
considering that his marriage with Daisylyn still subsists under
Philippine law, that the foregin divorce must be recognized
judicially
by
the
Philippine
court.
Gerbert subsequently filed at the Regional Trial Court a judicial
recognition of foreign divorce but was subsequently denied
since he is not the proper party and according to Article 26 of
the Civil Code, only a Filipino spouse can avail the remedy.
ISSUE: Whether or not Article 26 can also be applied to Corpuz'
petition of recognition of the foreign divorce decree
HELD: The Court held that alien spouses cannot claim the right
as it is only in favor of Filipino spouses. The legislative intent of
Article 26 is for the benefit of the clarification of the marital
status
of
the
Filipino
spouse.
However, aliens are not strip to petition to the RTC for his
foreign divorce decree as it is a conclusive presumption of
evidence of the authenticity of foreign divorce decree with
confirmity
to
the
alien's
national
law.
The Pasig City Registrar's Office acted out of line when it
registered the foreign divorce decree without judicial order
recognition. Therefore, the registration is still deemed to be
void.
FACTS:This is a petition for review on certiorari seeking a direct
appeal from the decision of the Regional Trial Court of Laoag
City. Petitioner Gerbert R. Corpus is a naturalized Canadian
citizen who married respondent Daisylyn Tirol Sto. Tomas but
subsequently left for Canada due to work and other professional
commitments. When he returned to the Philippines, he
discovered that Sto. Tomas was already romantically involved
with another man. This brought about the filing of a petition for
divorce by Corpuz in Canada which was eventually granted by
the Court Justice of Windsor, Ontario, Canada. A month later,
the divorce decree took effect. Two years later, Corpuz has
fallen in love with another Filipina and wished to marry her. He
went to Civil Registry Office of Pasig City to register the
Canadian divorce decree of his marriage certificate with Sto.
Tomas. However, despite the registration, an official of National
Statistics Office informed Corpuz that the former marriage still
subsists under the Philippine law until there has been a judicial

recognition of the Canadian divorce by a competent judicial

court in view of NSO Circular No. 4, series of 1982.
Consequently, he filed a petition for judicial recognition of
foreign divorce and/or declaration of dissolution of marriage with
the RTC. However, the RTC denied the petition reasoning out
that Corpuz cannot institute the action for judicial recognition of
the foreign divorce decree because he is a naturalized
Canadian citizen. It was provided further that Sto. Tomas was
the proper party who can institute an action under the principle
of Article 26 of the Family Code which capacitates a Filipino
citizen to remarry in case the alien spouse obtains a foreign
divorce decree.
ISSUE: Whether or not the second paragraph of Article 26 of
the Family Code grants aliens like Corpuz the right to institute a
petition for judicial recognition of a foreign divorce decree.
RULING: Petition GRANTED. RTC Decision REVERSED.
The foreign divorce decree is presumptive evidence of a right
that clothes the party with legal interest to petition for its
recognition in this jurisdiction
The second paragraph of Article 26 of the Family Code bestows
no rights in favor of aliens with the complementary statement
that this conclusion is not sufficient basis to dismiss Gerberts
petition before the RTC. In other words, the unavailability of the
second paragraph of Article 26 of the Family Code to aliens
does not necessarily strip Gerbert of legal interest to petition the
RTC for the recognition of his foreign divorce decree. The
foreign divorce decree itself, after its authenticity and conformity
with the aliens national law have been duly proven according to
our rules of evidence, serves as a presumptive evidence of right
in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules
of Court which provides for the effect of foreign judgments.
A remand, at the same time, will allow other interested parties to
oppose the foreign judgment and overcome a petitioners
presumptive evidence of a right by proving want of jurisdiction,
want of notice to a party, collusion, fraud, or clear mistake of law
or fact. Needless to state, every precaution must be taken to
ensure conformity with our laws before a recognition is made,
as the foreign judgment, once recognized, shall have the effect
of res judicata between the parties, as provided in Section 48,
Rule 39 of the Rules of Court.
VIII. B. Muslim Divorces Code of muslim personal laws
Case
HATIMA C. YASIN, represented by her Attorney-in-Fact,
HADJI HASAN S. CENTI,
petitioner, vs. THE HONORABLE JUDGE SHARI'A DISTRICT
COURT THIRD SHARI'A JUDICIAL DISTRICT, Zamboanga
City,respondent.
R E S O L U T I O N BIDIN, J.: On May 5, 1990, Hatima C.
Yasin filed in the Shari'a District Court in Zamboanga City a
"Petition to resume the use of maiden name" (Sp. Proc. No. 063). The petition reads:
1. That she is of legal age, a divorcee, a Muslin Filipino and a
resident of Suterville, Zamboanga City, Philippines, and is duly

represented in this act by her elder brother and attorney-in-fact,

HADJI HASAN S. CENTI by virtue of an instrument of a Special
Power of Attorney, original copy of which is hereto attached and
marked as Annex "A" hereof;
2. That she was formerly married to a certain Hadji Idris Yasin,
also a Muslim Filipino in accordance with Muslim rites and
customs, and who is now residing at Barangay Recodo,
Zamboanga City, but sometime on March 13, 1984, they were
granted a decree of divorce by the Mindanao Islamic Center
Foundation, Inc., in accordance with Islamic Law, the divorce
rites was officiated by Ustadz Sharif Jain Jali as evidenced by
his Certification, dated march 13, 1984, copy of which is hereto
attached as Annex "B" to form an integral part hereof;
3. That, thereafter the former husband Hadji Idris Yasin
contracted another marriage to another woman;
WHEREFORE, invoking the provisions of Article 143, par. 1(c)
of Presidential Decree No. 1083
in relation to Article 371 (2) of the New Civil Code, and after due
notice and hearing, it is most respectfully prayed of this
Honorable Court that petitioner be allowed to resume the use of
her maiden name Hatima Centi y Saul.
On July 4, 1990, the respondent court issued an order which
reads as follows:
It patently appearing that the petition filed is not sufficient in
form and substance in accordance with Section 2(a) and 3, Rule
103, Rules of Court, regarding the residence of petitioner and
the name sought to be adopted is not properly indicated in the
title thereof which should include all the names by which the
petitioner has been known (Ng Yao Siong v. Republic of the
Philippines, L-20306, March 31, 1966, 16 SCRA [483]; Go v.
Republic of the Philippines, L-31760, May 25, 1977; Pabellar v.
Republic, L-27298, march 4, 1976), the pleading must be
rectified accordingly.
WHEREFORE, petitioner is hereby ordered to effect the
necessary amendment of the petition within one (1) week from
receipt hereof so as to reflect the formal requirements adverted
to. (Rollo, p. 9)
Hatima filed a motion for reconsideration of the aforesaid order
alleging that the petition filed is not covered by Rule 103 of the
Rules of Court but is merely a petition to resume the use of her
maiden name and surname after the dissolution of her marriage
by divorce under the Code of Muslim Personal Laws of the
Philippines (P.D. No. 1083), and after marriage of her former
husband to another woman.
The motion was denied by the respondent court in an order
dated August 10, 1990, on the ground that the petition is
substantially for change of name and that compliance with the
provisions of Rule 103, Rules of Court on change of name is
necessary if the petition is to be granted as it would result in the
resumption of the use of petitioner's maiden name and
surname.
Hence, this petition alleging that respondent court erred in
applying Rule 103 of the Rules of Court to the instant case.

In his Comment dated June 14, 1991, the respondent court,

among others, contends:
5. . . . (R)espondent court is of the honest opinion that the said
petition is substantially one for change of name, particularly of
surname Hatima C. Yasin to Hatima Centi y Saul, the latter
being her maiden name and surname. Her reasons: The (1)
dissolution of her marriage, and (2) her legal right to resume the
use of her maiden name and surname. In effect, if petition is
granted, it will result in the resumption of the use of
her surname.
Moreover, the use of surnames is governed by law (Arts. 364380, Title XIII, New Civil Code). This is the substantive
requirements. And as to procedural requirements, no person
can change his name orsurname without judicial authority (Art.
376, Civil Code of the Philippines) (Emphasis supplied). Change
of name under judicial authorization is governed by Rule 103 of
the Revised Rules of Court. Under Sec. 1 of said rule: "a person
desiring to change his name shall present the petition to the
Court of First Instance of the province (now RTC) in which he
resides, or in the City of Manila, to the Juvenile and Domestic
Relations Court." The State has an interest in the names borne
by individual and entities for purposes of identification. A change
of name is a privilege and not a matter of right. Therefore,
before a person can be authorized to change his name (given
him either in his birth certificate or civil registry), he must show
proper or compelling reason, which may justify such change.
Otherwise, the request should be denied (Ong Peng Oan v.
Republic, 102 Phil. 468) (See: Paras, Civil Code of the
Philippines Annotated, Vol. I, 8th Ed., 1978, pp. 739-740).
(Rollo, pp. 46-47)
The basic issue to be resolved is: whether or not in the case of
annulment of marriage, or divorce under the Code of Muslim
Personal Laws of the Philippines, and the husband is married
again to another woman and the former desires to resume her
maiden name or surname, is she required to file a petition for
change of name and comply with the formal requirements of
Rule 103 of the Rules of Court.
Stated otherwise, the issue is: whether or not a petition for
resumption of maiden name and surname is also a petition for
change of name.
The Court rules in the negative.
The true and real name of a person is that given to him and
entered in the civil register (Chomi v. Local Civil Register of
Manila, 99 Phil. 1004 [1956]; Ng Yao Siong v. Republic, 16
SCRA 483 [1966]; Rendora v. Republic, 35 SCRA 262 [1970];
Pabellar v. Republic, 70 SCRA 16 [1976]).
While it is true that under Article 376 of the Civil Code, no
person can change his name or surname without judicial
authority, nonetheless, the only name that may be changed is
the true and official name recorded in the Civil Register. Thus,
this Court in Ng Yao Siong v. Republic (16 SCRA 483 [1966]),
held:
In a proceeding for a change of name the following question
may crop up: What is the name to be changed? By Article 408

of the Civil Code a person's birth must be entered in the civil

register. So it is, that the civil register records his name. That
name in the civil register, for legal purposes, is his real name.
And correctly so, because the civil register is an official record
of the civil status of persons. A name given to a person in the
church record or elsewhere or by which he is known in the
community when at variance with that entered in the civil
register is unofficial and cannot be recognized as his real
name.
We therefore rule that for the purposes of an application for
change of name under Article 376 of the Civil Code, the only
name that may be changed is the true or official name recorded
in the civil register.
Petitioner's registered name is Hatima Centi Y. Saul. In the
instant petition, petitioner does not seek to change her
registered maiden name but, instead, prays that she be allowed
to resume the use of her maiden name in view of the dissolution
of her marriage to Hadji Idris Yasin, by virtue of a decree of
divorce granted in accordance with Muslim law.
Divorce (talaq) is defined in PD 1086, the Code of Muslim
Personal Laws of the Philippines, as follows:
Art. 45. Definition and forms. Divorce is the formal dissolution
of the marriage bond in accordance with this Code to be
granted only after exhaustion of all possible means of
reconciliation between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
xxx xxx xxx
(c) Judicial decree ( faskh).
Divorce (talaq or faskh) severs the marriage bond. Thus, Article
54 of PD 1086 provides:
Art. 54. Effects of irrevocable talaq or faskh. A talaq or faskh,
as soon as it become irrevocable, shall have the following
effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
The divorce becomes irrevocable after observance of a period
of waiting called idda (Art. 56, PD 1086) the duration of which is
3 monthly courses after termination of the marriage by divorce
(Art. 57[b], PD 1083). Under Article 187, PD 1083, the Civil
Code of the Philippines, the Rules of Court and other existing
laws, insofar as they are not inconsistent with the provisions of
this Code (the Code of Muslim Personal Laws), shall be applied
suppletorily.
Even under the Civil Code, the use of the husband's surname
during the marriage (Art. 370, Civil Code), after annulment of
the marriage (Art. 371, Civil Code) and after the death of the
husband (Art. 373, Civil Code) is permissive and not obligatory
except in case of legal separation (Art. 372, Civil Code). Thus,
Articles 370 and 371 of the Civil Code provides:
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's
surname, or
(2) Her maiden first name and her husband's surname, or

(3) Her husband's full name, but prefixing a word indicating that
she is his wife, such as "Mrs."
Art. 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname. If
she is the innocent spouse, she may resume her maiden name
and surname. However, she may choose to continue employing
her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
According to Tolentino:
. . . Under the present article of our Code, however, the word
"may" is used, indicating that the use of the husband's surname
by the wife is permissive rather than obligatory. We have no law
which provides that the wife shall change her name to that of
the husband upon marriage. This is in consonance with the
principle that surnames indicate descent. It seems, therefore,
that a married woman may use only her maiden name and
surname. She has an option, but not a duty, to use the surname
of the husband in any of the ways provided by this Article.
(Tolentino, Civil Code of the Philippines, Vol. I, p. 724, 1983 ed.)
When a woman marries a man, she need not apply and/or seek
judicial authority to use her husband's name by prefixing the
word "Mrs." before her husband's full name or by adding her
husband's surname to her maiden first name. The law grants
her such right (Art. 370, Civil Code). Similarly, when the
marriage ties or vinculum no longer exists as in the case of
death of the husband or divorce as authorized by the Muslim
Code, the widow or divorcee need not seek judicial confirmation
of the change in her civil status in order to revert to her maiden
name as the use of her former husband's name is optional and
not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.;
Art. 373, Civil Code). When petitioner married her husband, she
did not change her name but only her civil status. Neither was
she required to secure judicial authority to use the surname of
her husband after the marriage as no law requires it.
In view of the foregoing considerations, We find the petition to
resume the use of maiden name filed by petitioner before the
respondent court a superfluity and unnecessary proceeding
since the law requires her to do so as her former husband is
already married to another woman after obtaining a decree of
divorce from her in accordance with Muslim laws.
Although there is no legal prohibition against obtaining a judicial
confirmation of a legal right, nevertheless, no law or rule
provides for the procedure by which such confirmation may be
obtained. In view of such circumstances, the onerous
requirements of Rule 103 of the Rules of Court on change of
name should not be applied to judicial confirmation of the right
of a divorced woman to resume her maiden name and surname.
In the absence of a specific rule or provision governing such a
proceeding, where sufficient facts have been alleged supported
by competent proof as annexes, which appear to be satisfactory
to the court, such petition for confirmation of change of civil
status and/or to resume the use of maiden name must be given

due course and summarily granted as in fact it is a right

conferred by law.
While the petition filed in the instant case leaves much to be
desired in matters of form and averment of concise statements
of ultimate facts constituting the petitioner's cause of action,
nevertheless, giving it a most liberal construction, the petition
suffices to convey the petitioner's desire and prayer to resume
her maiden surname on grounds of her divorce from her former
husband and subsequent marriage of the latter to another
woman.
The remand of this case to the trial court would only delay the
final disposition of this case and would not serve the public
interest. We have consistently ruled that the remand of the case
to a lower court for further reception of evidence is not
necessary if this Court can already resolve the dispute on the
basis of the records before it (Dimayuga v. PCIB, 200 SCRA
143 [1991]; Board of Liquidators v. Zulueta, 115 SCRA 548
[1982]: Quisumbing v. CA, 120 SCRA 703 [1983]).
WHEREFORE, the petition is GRANTED and the orders of
respondent court dated July 4, 1990 and August 10, 1990 are
hereby SET ASIDE. Petitioner is authorized to resume her
maiden name and surname. SO ORDERED. Narvasa, C.J.,
Feliciano, Padilla, Regalado, Davide, Jr., Bellosillo, Melo,
Quiason, Puno, Kapunan, Mendoza, and Francisco, JJ., concur.
FACTS: On May 5, 1990, Hatima C. Yasin filed in the Shari'a
District Court in Zamboanga City a "Petition to resume the use
of maiden name. The respondent court ordered amendments
to the petition as it was not sufficient in form and substance in
accordance Rule 103, Rules of Court, regarding the residence
of petitioner and the name sought to be adopted is not properly
indicated in the title thereof which should include all the names
by which the petitioner has been known. Hatima filed a motion
for reconsideration of the aforesaid order alleging that the
petition filed is not covered by Rule 103 of the Rules of Court
but is merely a petition to resume the use of her maiden name
and surname after the dissolution of her marriage by divorce
under the Code of Muslim Personal Laws of the Philippines, and
after marriage of her former husband to another woman. The
respondent court denied the motion since compliance to rule
103 is necessary if the petition is to be granted, as it would
result in the resumption of the use of petitioners maiden name
and surname.
ISSUE: Whether or not in the case of annulment of marriage, or
divorce under the Code of Muslim Personal Laws of the
Philippines, and the husband is married again to another
woman and the former desires to resume her maiden name or
surname, is she required to file a petition for change of name
and comply with the formal requirements of Rule 103 of the
Rules of Court.
RULING: NO. When a woman marries a man, she need not
apply and/or seek judicial authority to use her husband's name
by prefixing the word "Mrs." before her husband's full name or
by adding her husband's surname to her maiden first name. The
law grants her such right (Art. 370, Civil Code). Similarly, when

the marriage ties or vinculum no longer exists as in the case of

death of the husband or divorce as authorized by the Muslim
Code, the widow or divorcee need not seek judicial confirmation
of the change in her civil status in order to revert to her maiden
name as the use of her former husband's name is optional and
not obligatory for her. When petitioner married her husband, she
did not change her name but only her civil status. Neither was
she required to secure judicial authority to use the surname of
her husband after the marriage, as no law requires it. The use
of the husband's surname during the marriage, after annulment
of the marriage and after the death of the husband is permissive
and not obligatory except in case of legal separation.
The court finds the petition to resume the use of maiden name
filed by petitioner before the respondent court a superfluity and
unnecessary proceeding since the law requires her to do so as
her former husband is already married to another woman after
obtaining a decree of divorce from her in accordance with
Muslim laws.
IX. De Facto Separation Art. 100, 127, 239, 242, 246, 247, FC
Cases
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS
(Ninth Division) and RAY C. PEREZ, respondents.
D E C I S I O N ROMERO, J.: Parties herein would have this
Court duplicate the feat of King Solomon who was hailed in
Biblical times for his sagacious, if, at times unorthodox, manner
of resolving conflicts, the most celebrated case being that when
his authority was invoked to determine the identity of the real
mother as between two women claiming the same infant. Since
there could only be one mother, the daunting task that
confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding,
as between father and mother, who should have rightful custody
of a child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts
whose authority have been invoked to render a decision have
arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the
trial court, on the one hand, and the appellate, on the other.
On the issue of custody over the minor Ray Perez II,
respondent Court of Appeals ruled in favor of the boys father
Ray C. Perez, reversing the trial courts decision to grant
custody to Nerissa Z. Perez, the childs mother.
Ray Perez, private respondent, is a doctor of medicine
practicing in Cebu while Nerissa, his wife who is petitioner
herein, is a registered nurse. They were married
in Cebu on December 6, 1986. After six miscarriages, two
operations and a high-risk pregnancy, petitioner finally gave
birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October
1988, used part of her earnings to
build a modest house in Mandaue City, Cebu. She also sought
medical attention for her

successive miscarriages in New York. She became a resident

alien in February 1992.
Private respondent stayed with her in the U.S. twice and took
care of her when she became pregnant. Unlike his wife,
however, he had only a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived
in Cebu. After a few weeks, only Nerissa returned to
the U.S. She alleged that they came home only for a five-week
vacation and that they all had round-trip tickets. However, her
husband stayed behind to take care of his sick mother and
promised to follow her with the baby. According to Ray, they had
agreed to reside permanently in the Philippines but once
Nerissa was in New York, she changed her mind and continued
working.She was supposed to come back immediately after
winding up her affairs there.
When Nerissa came home a few days before Ray IIs first
birthday, the couple was no longer on good terms. That their
love for each other was fading became apparent from their
serious quarrels. Petitioner did not want to live near her in-laws
and rely solely on her husbands meager income of
P5,000.00.1 She longed to be with her only child but he was
being kept away from her by her husband. Thus, she did not
want to leave RJ (Ray Junior) with her husband and inlaws. She wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could
raise his son even as he practiced his profession. He
maintained that it would not be difficult to live here since they
have their own home and a car. They could live comfortably on
his P 15,000.00 monthly income2 as they were not burdened
with having to pay any debts.
Petitioner was forced to move to her parents home on Guizo
Street in Mandaue. Despite mediation by the priest who
solemnized their marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas
corpus3 asking respondent Ray C. Perez to surrender the
custody of their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding
custody of the one-year old child to his mother, Nerissa Perez,
citing the second paragraph of Article 213 of the Family Code
which provides that no child under seven years of age shall be
separated from the mother, unless the court finds compelling
reasons to order otherwise. The dispositive portion of the Order
reads:
WHEREFORE, foregoing premises considered, Order is hereby
issued ordering the respondent to turn over the custody of their
child Ray Cortes Perez II, his passport and roundtrip ticket to
herein petitioner with a warning that if he will escape together
with the child for the purpose of hiding the minor child instead of
complying with this Order, that warrant for his arrest will be
issued.
SO ORDERED.4
Upon appeal by Ray Perez, the Court of Appeals, on September
27, 1994, reversed the trial courts order and awarded custody of
the boy to his father.5

Petitioners motion for reconsideration having been denied, 6 she

filed the instant petition for review where the sole issue is the
custody of Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and
ruled that there were enough reasons to deny Nerissa Perez
custody over Ray II even if the child is under seven years old. It
held that granting custody to the boys father would be for the
childs best interest and welfare.7
Before us is the unedifying situation of a husband and wife in
marital discord, struggling for custody of their only child. It is sad
that petitioner and private respondent have not found it in their
hearts to understand each other and live together once again as
a family. Separated in fact, they now seek the Courts assistance
in the matter of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental
authority need not be belabored. The father and the mother
complement each other in giving nurture and providing that
holistic care which takes into account the physical, emotional,
psychological, mental, social and spiritual needs of the child. By
precept and example, they mold his character during his crucial
formative years.
However, the Courts intervention is sought in order that a
decision may be made as to which parent shall be given
custody over the young boy. The Courts duty is to determine
whether Ray Perez II will be better off with petitioner or with
private respondent. We are not called upon to declare which
party committed the greater fault in their domestic quarrel.
When the parents of the child are separated, Article 213 of the
Family Code is the applicable law. It provides:
ART. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise. (Italics supplied)
Since the Code does not qualify the word separation to mean
legal separation decreed by a court, couples who are separated
in fact, such as petitioner and private respondent, are covered
within its terms.8
The Revised Rules of Court also contains a similar provision.
Rule 99, Section 6 (Adoption and Custody of Minors) provides:
SEC. 6. Proceedings as to child whose parents are separated.
Appeal. - When husband and wife are divorced or living
separately and apart from each other, and the questions as to
the care, custody, and control of a child or children of their
marriage is brought before a Court of First Instance by petition
or as an incident to any other proceeding, the court, upon
hearing the testimony as may be pertinent, shall award the care,
custody, and control of each such child as will be for its best
interest, permitting the child to choose which parent it prefers to
live with if it be over ten years of age, unless the parent chosen
be unfit to take charge of the child by reason of moral depravity,

habitual drunkenness, incapacity, or poverty x x x. No child

under seven years of age shall be separated from its mother,
unless the court finds there are compelling reasons
therefor. (Italics supplied)
The provisions of law quoted above clearly mandate that a child
under seven years of age shall not be separated from his
mother unless the court finds compelling reasons to order
otherwise. The use of the word shall in Article 213 of the Family
Code and Rule 99, Section 6 of the Revised Rules of Court
connotes a mandatory character. In the case of Lacson v. San
JoseLacson,9 the Court declared:
The use of the word shall in Article 36310 of the Civil Code,
coupled with the observations made by the Code Commission
in respect to the said legal provision, underscores its mandatory
character. It prohibits in no uncertain terms the separation of a
mother and her child below seven years, unless such
separation is grounded upon compelling reasons as determined
by a
court.11
The rationale for awarding the custody of children younger than
seven years of age to their
mother was explained by the Code Commission:
The general rule is recommended in order to avoid many a
tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by
the rule has to be for compelling reasons for the good of the
child; those cases must indeed be rare, if the mothers heart is
not to be unduly hurt. If she has erred, as in cases of adultery,
the penalty of imprisonment and the divorce decree (relative
divorce) will ordinarily be sufficient punishment for
her. Moreover, moral dereliction will not have any effect upon
the baby who is as yet unable to understand her situation.
(Report of the Code Commission, p. 12) 12
The Family Code, in reverting to the provision of the Civil Code
that a child below seven years old should not be separated from
the mother (Article 363), has expressly repealed the earlier
Article 17, paragraph three of the Child and Youth Welfare Code
(Presidential Decree No. 603) which reduced the childs age to
five years.13
The general rule that a child under seven years of age shall not
be separated from his mother finds its raison detre in the basic
need of a child for his mothers loving care. 14 Only the most
compelling of reasons shall justify the courts awarding the
custody of such a child to someone other than his mother, such
as her unfitness to exercise sole parental authority. In the past
the following grounds have been considered ample justification
to deprive a mother of custody and parental authority: neglect,
abandonment,15 unemployment
and
immorality,16 habitual
17
drunkenness, drug addiction, maltreatment of the child,
insanity and being sick with a communicable disease. 18
It has long been settled that in custody cases, 19 the foremost
consideration is always the Welfare and best interest of the

child. In fact, no less than an international instrument, the

Convention on the Rights of the Child provides: In all actions
concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration.20
Courts invariably look into all relevant factors presented by the
contending parents, such as their material resources, social and
moral situations.21
In the case at bench, financial capacity is not a determinative
factor inasmuch as both parties have demonstrated that they
have ample means.
Respondent court stated that petitioner has no permanent place
of work in the U.S.A. and has taken this point against her. The
records, however, show that she is employed in a New
York hospital22 and was, at the time the petition was filed, still
abroad.23 She testified that she intends to apply for a job
elsewhere, presumably to improve her work environment and
augment her income, as well as for convenience. 24 The Court
takes judicial notice of the fact that a registered nurse, such as
petitioner, is still very much in demand in the United States.
Unlike private respondent, a doctor who by his own admission
could not find employment there, petitioner immediately got a
job in New York. Considering her skill and experience, petitioner
should find no difficulty in obtaining work elsewhere, should she
desire to do so.
The decision under review casts doubt on petitioners capability
to take care of the child, particularly since she works on twelvehour shifts thrice weekly, at times, even at night. There being no
one to help her look after the child, it is alleged that she cannot
properly attend to him. This conclusion is as unwarranted as it is
unreasonable. First, her present work schedule is not so
unmanageable as to deprive her of quality time for Ray II. Quite
a number of working mothers who are away from home for
longer periods of time are still able to raise a family well,
applying time management principles judiciously. Second, many
a mother, finding herself in such a position, has invited her own
mother or relative to join her abroad, providing the latter with
plane tickets and liberal allowances, to look after the child until
he is able to take care of himself. Others go on leave from work
until such time as the child can be entrusted to day-care
centers. Delegating child care temporarily to qualified persons
who run day-care centers does not detract from being a good
mother, as long as the latter exercises supervision, for even in
our culture, children are often brought up by housemaids or
yayas under the eagle eyes of the mother. Third, private
respondents work schedule was not presented in evidence at
the trial. Although he is a general practitioner, the records
merely show that he maintains a clinic, works for several
companies on retainer basis and teaches part-time. 25 Hence,
respondent courts conclusion that his work schedule is flexible
(and h)e can always find time for his son 26 is not wellfounded. Fourth, the fact that private respondent lives near his
parents and sister is not crucial in this case. Fifth, petitioners

work schedule cited in the respondent courts decision is not

necessarily permanent. Hospitals work in shifts and, given a
mothers instinctive desire to lavish upon her child the utmost
care, petitioner may be expected to arrange her schedule in
such a way as to allocate time for him. Finally, it does not follow
that petitioner values her career more than her family simply
because she wants to work in the United States. There are any
number of reasons for a persons seeking a job outside the
country, e.g. to augment her income for the familys benefit and
welfare, and for psychological fulfillment, to name a few. In the
instant case, it has been shown that petitioner earned enough
from her job to be able to construct a house for the family
inMandaue City. The record describes sketchily the relations
between Ray and Nerissa Perez. The transcripts of the three
hearings are inadequate to show that petitioner did not exert
earnest efforts and make sacrifices to save her marriage.
It is not difficult to imagine how heart-rending it is for a mother
whose attempts at having a baby were frustrated several times
over a period of six years to finally bear one, only for the infant
to be snatched from her before he has even reached his first
year. The mothers role in the life of her child, such as Ray II, is
well-nigh irreplaceable. In prose and poetry, the depth of a
mothers love has been immortalized times without number,
finding as it does, its justification, not in fantasy but in reality.
WHEREFORE, the petition for review is GRANTED. The
decision of the Court of Appeals
dated September 27, 1994 as well as its Resolution
dated January 24, 1995 are hereby REVERSED and SET
ASIDE. The Order of the trial court datedAugust 27, 1993 is
hereby REINSTATED. Custody over the minor Ray Z. Perez II is
awarded to his mother, herein petitioner Nerissa Z. Perez. This
decision is immediately executory.
SO ORDERED. Regalado (Chairman), Puno, and Mendoza,
JJ., concur. Torres, Jr., J., on
leave.
seven years shall not be separated from his mother)
Facts: Respondent father, a doctor of medicine and petitioner
mother, a registered nurse working in the US are married
couples who are separated in fact with only one child.
Petitioner filed a petition for habeas corpus asking respondent
to surrender the custody of their son. The RTC issued an Order
awarding custody of the one-year old child to his mother, citing
the second paragraph of Article 213 of the Family Code.
Upon appeal by the father, the Court of Appeals reversed the
trial courts order and awarded custody of the boy to him ruling
that there were enough reasons to deny petitioner custody over
the child even under seven years old. It held that granting
custody to the boys father would be for the childs best interest
and welfare.
Article 213, par 2, provides in case of separation of parents that
no child under 7 years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise.

Rule 99, Section 6 of the Revised Rules of Court also states

that No child under seven years of age shall be separated from
the mother, unless the court finds there are compelling reasons
therefore.
Issue: WON custody of the child is to be given to the father.
Held: No. The provisions of the law clearly mandate that a child
under seven years of age shall not be separated from his
mother unless the court finds compelling reasons to order
otherwise. The use of the word shall in Article 213 of the
Family Code and Rule 99, Sec 6 of the Revised Rules of Court
connotes a mandatory character.
Couples who are separated in fact are covered within the term
separation.
The Family Code in reverting to the provision of the Civil Code
that a child below seven years old shall not be separated from
the mother (Article 363), has expressly repealed the earlier
Article 17, par 3 of the Child and youth Welfare Code which
reduced the childs age to 5 years.

not been afforded the chance has demonstrate the compelling

state interest of prohibiting the act of respondent, thus the case
is
remanded
to
the
RTC.
Benevolent neutrality is inconsistent with the Free Exercise
Clause as far as it prohibits such exercise given a compelling
state interest. It is the respondents stance that the respondents
conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the
Court prohibit and punish her conduct where it is protected by
the Free Exercise Clause, the Courts action would be an
unconstitutional encroachment of her right to religious freedom.
The Court cannot therefore simply take a passing look at
respondents claim of religious freedom, but must instead apply
the compelling state interest test. The government must be
heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the states compelling
interest which can override respondents religious belief and
practice.

ESTRADA VS ESCRITOR A.M. No. P-02-1651, August 4,

2003
FACTS: Complainant Alejandro Estrada wrote to Judge Jose F.
Caoibes, Jr., requesting for an investigation of rumors that
respondent Soledad Escritor, court interpreter, is living with a
man not her husband. They allegedly have a child of eighteen to
twenty years old. Estrada is not personally related either to
Escritor or her partner. Nevertheless, he filed the charge against
Escritor as he believes that she is committing an immoral act
that tarnishes the image of the court, thus she should not be
allowed to remain employed therein as it might appear that the
court condones her act.
Respondent Escritor testified that when she entered the
judiciary in 1999, she was already a widow, her husband having
died in 1998. She admitted that she has been living with
Luciano Quilapio, Jr. without the benefit of marriage for twenty
years and that they have a son. But as a member of the
religious sect known as the Jehovah's Witnesses and the Watch
Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of
living together, she executed on July 28, 1991 a "Declaration of
Pledging Faithfulness," insofar as the congregation is
concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.
ISSUE: Whether or not respondent should be found guilty of the
administrative charge of "gross and immoral conduct."
HELD: Benevolent neutrality recognizes that government must
pursue its secular goals and interests but at the same time
strives to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided
it does not offend compelling state interests. It still remains to be
seen if respondent is entitled to such doctrine as the state has

X. Rights and Obligations between husband and wife A.

Cohabitation, mutual love and respect Art 247 RPC, Art 68
FC, Art 34 NCC, Sec 2 RA 8353 (Anti-rape law), Sec 2-6, 8,
21, 28,m 35, RA 9262 (Anti VAWC Act of 2004), Sec 19 RA
9710 (Magna Carta of Women)
Cases
JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M.
NARAG, respondent.
D E C I S I O N PER CURIAM: Good moral character is a
continuing qualification required of every member of the
bar. Thus, when a lawyer fails to meet the exacting standard of
moral integrity, the Supreme Court may withdraw his or her
privilege to practice law.
On November 13, 1989, Mrs. Julieta B. Narag filed an
administrative complaint[1] for disbarment against her husband,
Atty. Dominador M. Narag, whom she accused of having
violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for
Lawyers.[2]
The complainant narrated:
The St. Louis College of Tuguegarao engaged the services of
Atty. Dominador M. Narag in the
early seventies as a full-time college instructor in the College of
Arts and Sciences and as a professor in the Graduate
School. In 1984, Ms. Gina Espita, 17 years old and a first year
college student, enrolled in subjects handled by Atty.
Narag. Exerting his influence as her teacher, and as a
prominent member of the legal profession and then member of
the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms.
Espita, gradually lessening her resistance until the student
acceded to his wishes.
They then maintained an illicit relationship known in various
circles in the community, but which they managed to keep from
me. It therefore came as a terrible embar[r]assment to me, with
unspeakable grief and pain when my husband abandoned us,

his family, to live with Ms. Espita, in utterly scandalous

circumstances.
It appears that Atty. Narag used his power and influence as a
member of the Sangguniang Panlalawigan of Cagayan to cause
the employment of Ms. Espita at the Department of Trade and
Industry Central Office at Makati, Metro Manila. Out of gratitude
perhaps, for this gesture, Ms. Espita agreed to live with Atty.
Narag, her sense of right[e]ousness and morals completely
corrupted by a member of the Bar.
It is now a common knowledge in the community that Atty.
Dominador M. Narag has abandoned us, his family, to live with
a 22-year-old woman, who was his former student in the tertiary
level[.][3]
This Court, in a Resolution dated December 18, 1989, referred
the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. [4]
On June 26, 1990, the office of then Chief Justice Marcelo B.
Fernan received from complainant another letter seeking the
dismissal of the administrative complaint. She alleged therein
that (1) she fabricated the allegations in her complaint to
humiliate and spite her husband; (2) all the love letters between
the respondent and Gina Espita were forgeries; and (3) she was
suffering from emotional confusion arising from extreme
jealousy. The truth, she stated, was that her husband had
remained a faithful and responsible family man. She further
asserted that he had neither entered into an amorous
relationship with one Gina Espita nor abandoned his family.
[5]
Supporting her letter were an Affidavit of Desistance [6] and a
Motion to Dismiss,[7] attached as Annexes A and B, which she
filed before the IBP commission on bar discipline. [8] In a
Decision dated October 8, 1991, the IBP Board of
Governors [9] dismissed the complaint of Mrs. Narag for failure to
prosecute.[10]
The case took an unexpected turn when, on November 25,
1991, this Court[11] received another letter[12] from the
complainant, with her seven children [13] as co-signatories, again
appealing for the disbarment of her husband. She explained
that she had earlier dropped the case against him because of
his continuous threats against her.[14]
In his Comment on the complainants letter of November 11,
1991, filed in compliance with this Courts Resolution issued on
July 6, 1992,[15] respondent prayed that the decision of the
Board of Governors be affirmed. Denying that he had
threatened, harassed or intimidated his wife, he alleged that she
had voluntarily executed her Affidavit of Desistance [16] and
Motion to Dismiss,[17] even appearing before the investigating
officer, Commissioner Racela, to testify under oath that she
prepared the Motion to Dismiss and Affidavit of Desistance on
her own free will and affirmed the contents thereof.
In addition, he professed his love for his wife and his children
and denied abandoning his family to live with his
paramour. However, he described his wife as a person
emotionally disturbed, viz.:

What is pitiable here is the fact that Complainant is an incurably

jealous and possessive woman, and every time the streak of
jealousy rears its head, she fires off letters or complaints
against her husband in every conceivable forum, all without
basis, and purely on impulse, just to satisfy the consuming
demands of her loving jealousy. Then, as is her nature, a few
hours afterwards, when her jealousy cools off, she repents and
feels sorry for her acts against the Respondent.Thus, when she
wrote the Letter of November 11, 1991, she was then in the
grips of one of her bouts of jealousy. [18]
On August 24, 1992, this Court issued another Resolution
referring the Comment of respondent to the IBP. [19] In the
hearing before IBP Commissioner Plaridel C. Jose, respondent
alleged the following:[20]
2. Your Respondent comes from very poor parents who have
left him not even a square meter of land, but gave him the best
legacy
in
life: a
purposeful
and
meaningful
education. Complainant comes from what she claims to be very
rich parents who value material possession more than
education and the higher and nobler aspirations in
life. Complainant abhors the poor.
3. Your Respondent has a loving upbringing, nurtured in the
gentle ways of love, forgiveness, humility, and concern for the
poor. Complainant was reared and raised in an entirely different
environment. Her value system is the very opposite.
4. Your Respondent loves his family very dearly, and has done
all he could in thirty-eight (38) years of marriage to protect and
preserve his family. He gave his family sustenance, a
comfortable home, love, education, companionship, and most of
all, a good and respected name. He was always gentle and
compassionate to his wife and children. Even in the most trying
times, he remained calm and never inflicted violence on
them. His children are all now full-fledged professionals, mature,
and gainfully employed. x x x
xxxxxxxxx
Your Respondent subscribes to the sanctity of marriage as a
social institution.
On the other hand, consumed by insane and unbearable
jealousy, Complainant has been systematically and unceasingly
destroying the very foundations of their marriage and their
family. Their marriage has become a torture chamber in which
Your Respondent has been incessantly BEATEN, BATTERED,
BRUTALIZED, TORTURED, ABUSED, and HUMILIATED,
physically, mentally, and emotionally, by the Complainant, in
public and at home. Their marriage has become a nightmare.
For thirty-eight years, your Respondent suffered in silence and
bore the pain of his misfortune with dignity and with almost
infinite patience, if only to preserve their family and their
marriage. But this is not to be. The Complainant never
mellowed and never became gentl[e], loving, and
understanding. In fact, she became more fierce and predatory.
Hence, at this point in time, the light at the tunnel for Your
Respondent does not seem in

sight. The darkness continues to shroud the marital and familial

landscape.
Your Respondent has to undergo a catharsis, a liberation from
enslavement. Paraphrasing Dorfman in Death and the Maiden,
can the torturer and the tortured co-exist and live together?
Hence, faced with an absolutely uncomprehending and
uncompromising mind whose only obsession now is to destroy,
destroy, and destroy, Your Respondent, with perpetual regret
and with great sorrow, filed a Petition for Annulment of Marriage,
Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. x x
x.
5. Complainant is a violent husband-beater, vitriolic and
unbending. But your Respondent never revealed these
destructive qualities to other people. He preserved the good
name and dignity of his wife. This is in compliance with the
marital vow to love, honor or obey your spouse, for better or for
worse, in sickness and in health. . . Even in this case, Your
Respondent never revealed anything derogatory to his wife. It is
only now that he is constrained to reveal all these things to
defend himself.
On the other hand, for no reason at all, except a jealous rage,
Complainant tells everyone, everywhere, that her husband is
worthless, good-for-nothing, evil and immoral. She goes to
colleges and universities, professional organizations, religious
societies, and all other sectors of the community to tell them
how evil, bad and immoral her husband is. She tells them not to
hire him as professor, as Counsel, or any other capacity
because her husband is evil, bad, and immoral. Is this
love? Since when did love become an instrument to destroy a
mans dearest possession in life - his good name, reputation and
dignity?
Because of Complainants virulent disinformation campaign
against her husband, employing every unethical and immoral
means to attain his ends, Your Respondent has been
irreparably and irreversibly disgraced, shamed, and
humiliated.Your Respondent is not a scandalous man. It is he
who has been mercilessly scandalized and crucified by the
Complainant.[21]
To prove the alleged propensity of his wife to file false charges,
respondent presented as evidence the following list of the
complaints she had filed against him and Gina Espita:
3.1 Complaint for Immorality/Neglect of Duty x x x
3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case
No. P-5-90. x x x
3.3 Complaint for Concubinage. Provincial Prosecutors Office of
Cagayan. I.S No. 89-114. x x x
3.4 Complaint for Anti-Graft and Corrupt Practices and
concubinage. OMBUDSMAN Case No. 1-92-0083. x x x
3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case
No. 4061. DISMISSED.
3.6 Complaint for Concubinage. Provincial Prosecutors Office of
Cagayan. I.S. No. 92-109. DISMISSED. (x x x). Complainant
filed Motion for Reconsideration. DENIED. (x x x).

3.7 Complaint for Disbarment (x x x) with S[upreme]

C[ourt]. Withdrawn (x x x). DISMISSED by IBP Board of
Governors (x x x). Re-instituted (x x x).
3.8 Complaint for Disbarment, again (x x x). Adm. Case No.
3405. Pending.
3.9 Complaint for Concubinage, again (x x x). Third MCTC,
Tumauini, Isabela. Pending. x x x[22]
In his desperate effort to exculpate himself, he averred:
I. That all the alleged love letters and envelopes (x x x), picture
(x x x) are inadmissible in evidence as enunciated by the
Supreme Court in Cecilia Zulueta vs. Court of Appeals, et. al.,
G.R. No. 107383, February 20, 1996. (x x x).
xxxxxxxxx
II. That respondent is totally innocent of the charges: He never
courted Gina Espita in the Saint Louis College of
Tuguegarao. He never caused the employment of said woman
in the DTI. He never had or is having any illicit relationship with
her anywhere, at any time. He never lived with her as husband
and wife anywhere at any time, be it in Centro Tumauini or any
of its barangays, or in any other place. He never begot a child or
children with her. Finally, respondent submits that all the other
allegations of Mrs. Narag are false and fabricated, x x x
xxxxxxxxx
III. Respondent never abandoned his family[.] Mrs. Narag and
her two sons forcibly drove respondent Narag out of the
conjugal home. After that, Atty. Narag tried to return to the
conjugal home many times with the help of mutual friends to
save the marriage and the family from collapse. He tried several
times to reconcile with Mrs. Narag. In fact, in one of the
hearings of the disbarment case, he offered to return home and
to reconcile with Mrs. Narag. But Mrs. Narag refused all these
efforts of respondent Narag. x x x
IV. Complainant Julieta B. Narag is an unbearably jealous,
violent, vindictive, scandalous, virulent and merciless wife since
the beginning of the marriage, who incessantly beat, battered,
brutalized, tortured, abuse[d], scandalized, and humiliated
respondent Atty. Narag, physically, mentally, emotionally, and
psychologically, x x x.
V. Complainant Julieta Narags claim in her countermanifestation dated March 28, 1996, to the effect that the
affidavit of Dominador B. Narag, Jr., dated February 27, 1996
was obtained through force and intimidation, is not
true.Dominador, Jr., executed his affidavit freely, voluntarily, and
absolutely without force or intimidation, as shown by the
transcript of stenographic notes of the testimonies of
Respondent Atty. Narag and Tuguegarao MTC Judge
Dominador Garcia during the trial of Criminal Case No. 12439,
People vs. Dominador M. Narag, et. al., before the Tuguegarao
MTC on May 3, 1996. x x x.
xxxxxxxxx
VI. Respondent Atty. Narag is now an old man - a senior citizen
of 63 years - sickly, abandoned, disgraced, weakened and
debilitated by progressively degenerative gout and arthritis, and
hardly able to earn his own keep. His very physical, medical,

psychological, and economic conditions render him unfit and

unable to do the things attributed to him by the
complainant. Please see the attached medical certificates, x x x,
among many other similar certificates touching on the same
ailments. Respondent is also suffering from hypertension. [23]
On July 18, 1997, the investigating officer submitted his report,
[24]
recommending the indefinite suspension of Atty. Narag from
the practice of law. The material portions of said report read as
follows:
Culled from the voluminous documentary and testimonial
evidence submitted by the contending parties, two (2) issues
are relevant for the disposition of the case, namely:
a) Whether there was indeed a commission of alleged
abandonment of respondents own family and [whether he was]
living with his paramour, Gina Espita;
b) Whether the denial under oath that his illegitimate children
with Gina Espita (Aurelle Dominic
and Kyle Dominador) as appearing on paragraph 1(g) of
respondents Comment vis-a-vis his handwritten love letters, the
due execution and contents of which, although he objected to
their admissibility for being allegedly forgeries, were never
denied by him on the witness stand much less presented and
offered proof to support otherwise.
Except for the testimonies of respondents witnesses whose
testimonies tend to depict the
complaining wife, Mrs. Narag, as an incurably jealous wife and
possessive woman suffering everytime with streaks of jealousy,
respondent did not present himself on the witness stand to
testify and be cross-examined on his sworn comment; much
less did he present his alleged paramour, Gina Espita, to
disprove the adulterous relationship between him and their
having begotten their illegitimate children, namely: Aurelle
Dominic N. Espita and Kyle Dominador N. Espita. Worse,
respondents denial that he is the father of the two is a ground
for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467).
Viewed from all the evidence presented, we find the respondent
subject to disciplinary action as a member of the legal
profession.[25]
In its Resolution[26] issued on August 23, 1997, the IBP adopted
and approved the investigating commissioners recommendation
for the indefinite suspension of the respondent. [27] Subsequently,
the complainant sought the disbarment of her husband in a
Manifestation/Comment she filed on October 20, 1997. The IBP
granted this stiffer penalty and, in its Resolution dated
November 30, 1997, denied respondents Motion for
Reconsideration.
After a careful scrutiny of the records of the proceedings and
the evidence presented by the parties, we find that the conduct
of respondent warrants the imposition of the penalty of
disbarment.
The Code of Professional Responsibility provides:
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.

CANON 7-- A lawyer shall at all times uphold the integrity and
dignity of the legal profession, and support the activities of the
Integrated Bar.
Rule 7.03-- A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor should he, whether in
public or private life, behave in a scandalous manner to the
discredit of the legal profession.
Thus, good moral character is not only a condition
precedent[28] to the practice of law, but a continuing qualification
for all members of the bar. Hence, when a lawyer is found guilty
of gross immoral conduct, he may be suspended or disbarred. [29]
Immoral conduct has been defined as that conduct which is so
willful, flagrant, or shameless as to show indifference to the
opinion of good and respectable members of the community.
[30]
Furthermore, such conduct must not only be immoral,
butgrossly immoral. That is, it must be so corrupt as to
constitute a criminal act or so unprincipled as to be
reprehensible to a high degree [31] or committed under such
scandalous or revolting circumstances as to shock the common
sense of decency.[32]
We explained in Barrientos vs. Daarol[33] that, as officers of the
court, lawyers must not only in fact be of good moral character
but must also be seen to be of good moral character and
leading lives in accordance with the highest moral standards of
the community. More specifically, a member of the Bar and
officer of the court is not only required to refrain from adulterous
relationships or the keeping of mistresses but must also so
behave himself as to avoid scandalizing the public by creating
the belief that he is flouting those moral standards.
Respondent Narag is accused of gross immorality for
abandoning his family in order to live with Gina Espita. The
burden of proof rests upon the complainant, and the Court will
exercise its disciplinary power only if she establishes her case
by clear, convincing and satisfactory evidence. [34]
Presented by complainant as witnesses, aside from herself,
[35]
were: Charlie Espita,[36] Magdalena Bautista,[37] Bienvenido
Eugenio,[38] Alice Carag,[39] Dr. Jervis B. Narag,[40] Dominador
Narag, Jr.,[41] and Nieves F. Reyes.[42]
Charlie Espita, brother of the alleged paramour Gina Espita,
corroborated complainants charge against respondent in these
categorical statements he gave to the investigating officer:
Q Mr. Witness, do you know Atty. Narag?
A Yes, Your Honor, he is the live-in partner of my sister, Gina
Espita.
Q If Atty. Narag is here, can you point [to] him?
A Yes, sir.
(Witness pointed to the respondent, Atty. Dominador Narag)
Q Why do you know Atty. Narag?
ATTY. NARAG:
Already answered. He said I am the live-in partner.
CONTINUATION OF THE DIRECT
A Because he is the live-in partner of my sister and that they
are now living together as husband and wife and that they

already have two children, Aurelle Dominic and Kyle

Dominador.
x x x x x x x x x [43]
During cross-examination conducted by the respondent himself,
Charlie Espita repeated his account that his sister Gina was
living with the respondent, with whom she had two children:
Q Mr. Espita, you claim that Atty. Narag is now living with your
sister as husband and wife. You claim that?
A Yes, sir.
Q Why do you say that?
A Because at present you are living together as husband and
wife and you have already two children and I know that that is
really an immoral act which you cannot just allow me to follow
since my moral values dont allow me that my sister is living with
a married man like you.
Q How do you know that Atty. Narag is living with your
sister? Did you see them in the house?
A Yes, si[r].
xxxxxxxxx
Q You said also that Atty. Narag and your sister have two
children, Aurelle Dominic and Kyle Dominador, is it not?
A Yes, sir.
Q How do you know that they are the children of Atty. Narag?
A Because you are staying together in that house and you have
left your family.[44]
In addition, Charlie Espita admitted (1) that it was he who
handed to Mrs. Narag the love letters respondent had sent to
his sister, and (2) that Atty. Narag tried to dissuade him from
appearing at the disbarment proceedings. [45]
Witness Bienvenido Eugenio strengthened the testimony of
Charlie Espita in this wise:
Q Mr. Witness, do you know the respondent in this case?
A I know him very well, sir.
Q Could you please tell us why do you know him?
A Because he was always going to the house of my son-in-law
by the name of Charlie Espita.
xxxxxxxxx
Q Mr. Eugenio, do you know the residence of Atty. Dominador
M. Narag?
A At that time, he [was] residing in the house of Reynaldo
Angubong, sir.
Q And this is located where?
A Centro Tamauini, Isabela, sir.
Q And you specifically, categorically state under oath that this is
the residence of Atty. Narag?
A Yes, sir.
xxxxxxxxx
Q And under oath this is where Atty. Narag and Gina Espita are
allegedly living as husband and wife, is it not?
A Yes, sir.[46]
Witness Nieves Reyes, a neighbor and friend of the estranged
couple, testified that she learned from the Narag children -Randy, Bong and Rowena -- that their father left his family, that
she and her husband prodded the complainant to accept the

respondent back, that the Narag couple again separated when

the respondent went back to his woman, and that Atty. Narag
had maltreated his wife.[47]
On the strength of the testimony of her witnesses, the
complainant was able to establish that respondent abandoned
his family and lived with another woman. Absent any evidence
showing that these witnesses had an ill motive to testify falsely
against the respondent, their testimonies are deemed worthy of
belief.
Further, the complainant presented as evidence the love letters
that respondent had sent to Gina. In these letters, respondent
clearly manifested his love for Gina and her two children, whom
he acknowledged as his own. In addition, complainant also
submitted as evidence the cards that she herself had received
from him. Guided by the rule that handwriting may be proved
through a comparison of one set of writings with those admitted
or treated by the respondent as genuine, we affirm that the two
sets of evidence were written by one and the same person.
[48]
Besides, respondent did not present any evidence to prove
that the love letters were not really written by him; he merely
denied that he wrote them.
While the burden of proof is upon the complainant, respondent
has the duty not only to himself but also to the court to show
that he is morally fit to remain a member of the bar. Mere denial
does not suffice. Thus, when his moral character is assailed,
such that his right to continue practicing his cherished
profession is imperiled, he must meet the charges squarely and
present evidence, to the satisfaction of the investigating body
and this Court, that he is morally fit to have his name in the Roll
of Attorneys.[49] This he failed to do.
Respondent adamantly denies abandoning his family to live with
Gina Espita. At the same time, he depicts his wife as a violent
husband-beater, vitriolic and unbending, and as an insanely and
pathologically jealous woman, whose only obsession was to
destroy, destroy and destroy him as shown by her filing of a
series of allegedly unfounded charges against him (and Gina
Espita). To prove his allegation, he presented ninety-eight (98)
pieces of documentary evidence[50] and ten (10) witnesses.[51]
We note, however, that the testimonies of the witnesses of
respondent did not establish the fact that he maintained that
moral integrity required by the profession that would render him
fit to continue practicing law. Neither did their testimonies
destroy the fact, as proven by the complainant, that he had
abandoned his family and lived with Gina Espita, with whom he
had two children. Some of them testified on matters which they
had no actual knowledge of, but merely relied on information
from either respondent himself or other people, while others
were presented to impeach the good character of his wife.
Respondent may have provided well for his family -- they
enjoyed a comfortable life and his children finished their
education. He may have also established himself as a
successful lawyer and a seasoned politician. But these
accomplishments are not sufficient to show his moral fitness to
continue being a member of the noble profession of law.

We remind respondent that parents have not only rights but also
duties e.g., to support, educate and instruct their children
according to right precepts and good example; and to give them
love, companionship and understanding, as well as moral and
spiritual guidance.[52] As a husband, he is also obliged to live
with his wife; to observe mutual love, respect and fidelity; and to
render help and support.[53]
Respondent himself admitted that his work required him to be
often away from home. But the evidence shows that he was
away not only because of his work; instead, he abandoned his
family to live with his paramour, who bore him two children.It
would appear, then, that he was hardly in a position to be a
good husband or a good father. His children, who grew up
mostly under the care of their mother, must have scarcely felt
the warmth of their fathers love.
Respondents son, Jervis B. Narag, showed his resentment
towards his fathers moral frailties in his testimony:
Q My question is this, is there any sin so grievous that it cannot
be forgiven, is there a fault that is so serious that it is incapable
of forgiveness?
A That depends upon the sin or fault, sir, but if the sin or fault is
with the emotional part of myself, I suppose I cannot forgive a
person although I am a God-fearing person, but I h[av]e to give
the person a lesson in order for him or her to at least realize his
mistakes, sir.
xxxxxxxxx
COMR. JOSE:
I think it sounds like this. Assuming for the sake of argument
that your father is the worst, hardened criminal on earth, would
you send him to jail and have him disbarred? That is the
question.
CONTINUATION.
A With the reputation that he had removed from us, I suppose
he has to be given a lesson. At this point in time, I might just
forgive him if he will have to experience all the pains that we
have also suffered for quite sometime.
Q Dr. Narag, your father gave you life, his blood runs in your
veins, his flesh is your flesh, his bones are your bones and you
now disown him because he is the worst man on earth, is that
what you are saying.
A Sort of, sir.
Q You are now telling that as far [as] you are concerned
because your father has sinned, you have no more father, am I
correct?
A Long before, sir, I did not feel much from my father even
when I was still a kid because my father is not always staying
with us at home. So, how can you say that? Yes, he gave me
life, why not? But for sure, sir, you did not give me love.[54]
Another son, Dominador Narag, Jr., narrated before the
investigating officer the trauma he went through:
Q In connection with that affidavit, Mr. Witness, which contains
the fact that your father is maintaining a paramour, could you
please tell this Honorable Commission the effect on you?

A This has a very strong effect on me and this includes my

brothers and sisters, especially my married life, sir. And it also
affected my children so much, that I and my wife ha[ve] parted
ways. It hurts to say that I and my wife parted ways. This is one
reason that affected us.
Q Will you please tell us specifically why you and your wife
parted ways?
A Because my wife wa[s] ashamed of what happened to my
family and that she could not face the people, our community,
especially because my wife belongs to a well-known family in
our community.
Q How about the effect on your brothers and sisters? Please
tell us what are those.
A Well, sir, this has also affected the health of my elder sister
because she knows so well that my mother suffered so much
and she kept on thinking about my mother.
xxxxxxxxx
Q Why did your wife leave you?
A The truth is because of the things that had happened in our
family, Your Honor.
Q In your wifes family?
A In our family, sir.
Q And what do you mean by that?
A What I meant by that is my father had an illicit relationship
and that my father went to the extent of scolding my wife and
calling my wife a puta in provincial government, which my
mother-in-law hated him so much for this, which really affected
us. And then my wife knew for a fact that my father has an illicit
relationship with Gina Espita, whom he bore two children by the
name of Aurelle Dominic and Kyle Dominador, which I could
prove and I stand firm to this, Your Honor.[55]
Although respondent piously claims adherence to the sanctity of
marriage, his acts prove otherwise. A husband is not merely a
man who has contracted marriage. Rather, he is a partner who
has solemnly sworn to love and respect his wife and remain
faithful to her until death.
We reiterate our ruling in Cordova vs. Cordova[56] The moral
delinquency that affects the fitness of a member of the bar to
continue as such includes conduct that outrages the generally
accepted moral standards of the community, conduct for
instance, which makes a mockery of the inviolable social
institution of marriage.
In Toledo vs. Toledo,[57] the respondent was disbarred from the
practice of law, when he abandoned his lawful wife and
cohabited with another woman who had borne him a child.
Likewise, in Obusan vs. Obusan,[58] the respondent was
disbarred after the complainant proved that he had abandoned
her and maintained an adulterous relationship with a married
woman. This Court declared that respondent failed to maintain
the highest degree of morality expected and required of a
member of the bar.
In the present case, the complainant was able to establish, by
clear and convincing evidence, that respondent had breached
the high and exacting moral standards set for members of the

law profession. As held in Maligsa vs. Cabanting,[59] a lawyer

may be disbarred for any misconduct, whether in his
professional or private capacity, which shows him to be wanting
in moral character, in honesty, probity and good demeanor or
unworthy to continue as an officer of the court.
WHEREFORE,
Dominador
M.
Narag
is
hereby DISBARRED and
his
name
is ORDERED
STRICKEN from the Roll of Attorneys. Let copies of this
Decision be in the personal record of Respondent Narag; and
furnished to all courts of the land, the Integrated Bar of the
Philippines, and the Office of the Bar Confidant. SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez,
Quisumbing, and Purisima, JJ., concur.
FACTS: Atty. Dominador Narag was alleged to have abandoned
his family for his paramour who was once his student in tertiary
level. The administrative complaint of disbarment was filed by
her wife, Mrs. Julieta Narag. Respondent filed motion to dismiss
because allegedly the complainant fabricated the story as well
as the love letters while under extreme emotional confusion
arising from jealousy. The case took an unexpected turn when
another complaint was filed, the wife as again the complainant
but now together with their seven children as co-signatories.
After several hearings, the facts became clear, that the
respondent indeed abandoned his family as against morals,
based on testimonial evidences. In addition, the assailed
relationship bore two children.
ISSUE: Whether or not respondent is guilty of gross immorality
and for having violated and the Code of Ethics for Lawyers
culpable for disbarment.
HELD: YES. Respondent disbarred.
RATIO: The complainant was able to establish, by clear and
convincing evidence, that the respondent breached the high and
exacting moral standards set for the members of the law
profession.
Good moral character is not only a condition precedent to the
practice of law, but a continuing qualification for all members of
the bar.
CANON 7 A lawyer shall at all times uphold the integrity and
dignity of the legal profession, and support the activities of the
Integrated Bar.
Rule 7.03 A lawyer shall not engage in conduct that
adversely reflects on his fitness to practice law, nor should he,
whether in public or private life, behave in a scandalous manner
to the discredit of the legal profession.
Undoubtedly, the canons of law practice were violated.
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE
CAMPOS RUEDA, defendant-appellee. Eduardo Gutierrez
Repide and Felix Socias for appellant. Sanz, Opisso and
Luzuriaga for appellee.
TRENT, J.: This is an action by the wife against her husband for
support outside of the conjugal domicile. From a judgment
sustaining the defendant's demurrer upon the ground that the

facts alleged in the complaint do not state a cause of action,

followed by an order dismissing the case after the plaintiff
declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the
defendant cannot be compelled to support the plaintiff, except in
his own house, unless it be by virtue of a judicial decree
granting her a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January
7, 1915, and immediately thereafter established their residence
at 115 Calle San Marcelino, where they lived together for about
a month, when the plaintiff returned to the home of her parents.
The pertinent allegations of the complaint are as follows:
That the defendant, one month after he had contracted
marriage with the plaintiff, demanded of her that she perform
unchaste and lascivious acts on his genital organs; that the
plaintiff spurned the obscene demands of the defendant and
refused to perform any act other than legal and valid
cohabitation; that the defendant, since that date had continually
on other successive dates, made similar lewd and indecorous
demands on his wife, the plaintiff, who always spurned them,
which just refusals of the plaintiff exasperated the defendant
and induce him to maltreat her by word and deed and inflict
injuries upon her lips, her face and different parts of her body;
and that, as the plaintiff was unable by any means to induce the
defendant to desist from his repugnant desires and cease from
maltreating her, she was obliged to leave the conjugal abode
and take refuge in the home of her parents.
Marriage in this jurisdiction is a contract entered into in the
manner and with the solemnities established by General Orders
No. 68, in so far as its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep.,
480, citing article 1261 of Civil Code.) Upon the termination of
the marriage ceremony, a conjugal partnership is formed
between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil.
Rep., 137.) To this extent a marriage partakes of the nature of
an ordinary contract. But it is something more than a mere
contract. It is a new relation, the rights, duties, and obligations
of which rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights, duties,
and obligations .Marriage is an institution, in the maintenance of
which in its purity the public is deeply interested. It is a relation
for life and the parties cannot terminate it at any shorter period
by virtue of any contract they may make .The reciprocal rights
arising from this relation, so long as it continues, are such as
the law determines from time to time, and none other. When the
legal existence of the parties is merged into one by marriage,
the new relation is regulated and controlled by the state or
government upon principles of public policy for the benefit of
society as well as the parties. And when the object of a
marriage is defeated by rendering its continuance intolerable to
one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. With these
principles to guide us, we will inquire into the status of the law
touching and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the

Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34).
Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in
the Peninsula, were extended to the Philippine Islands by royal
decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705).
Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other
and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The
second paragraph deals with the management of the wife's
property.)
ART. 48. The wife must obey her husband, live with him, and
follow him when he charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the
court may for just cause relieve her from this duty when the
husband removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other
reciprocally to the whole extent specified in the preceding
article.
1. The consorts.
xxx
xxx
xxx
ART. (149) 49. The person obliged to give support may, at his
option, satisfy it, either by paying the pension that may be fixed
or by receiving and maintaining in his own home the person
having the right to the same.
Article 152 of the Civil Code gives the instances when the
obligation to give support shall cease. The failure of the wife to
live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and
the Civil Code fix the duties and obligations of the spouses. The
spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey
and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may,
at his option, do so by paying her a fixed pension or by
receiving and maintaining her in his own home. May the
husband, on account of his conduct toward his wife, lose this
option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The
supreme court of Spain in its decision of December 5, 1903,
held:.
That in accordance with the ruling of the supreme court of Spain
in its decisions dated May 11, 1897, November 25, 1899, and
July 5, 1901, the option which article 149 grants the person,
obliged to furnish subsistence, between paying the pension
fixed or receiving and keeping in his own house the party who is
entitled to the same, is not so absolute as to prevent cases
being considered wherein, either because this right would be
opposed to the exercise of a preferential right or because of the
existence of some justifiable cause morally opposed to the
removal of the party enjoying the maintenance, the right of
selection must be understood as being thereby restricted.

Whereas the only question discussed in the case which gave

rise to this appeal was whether there was any reason to prevent
the exercise of the option granted by article 149 of the Civil
Code to the person obliged to furnish subsistence, to receive
and maintain in his own house the one who is entitled to receive
it; and inasmuch as nothing has been alleged or discussed with
regard to the parental authority of Pedro Alcantara Calvo, which
he ha not exercised, and it having been set forth that the natural
father simply claims his child for the purpose of thus better
attending to her maintenance, no action having been taken by
him toward providing the support until, owing to such
negligence, the mother was obliged to demand it; it is seen that
these circumstances, together with the fact of the marriage of
Pedro Alcantara, and that it would be difficult for the mother to
maintain relations with her daughter, all constitute an
impediment of such a nature as to prevent the exercise of the
option in the present case, without prejudice to such decision as
may be deemed proper with regard to the other questions
previously cited in respect to which no opinion should be
expressed at this time.
The above was quoted with approval in United States and De
Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that
the rule laid down in article 149 of the Civil Code "is not
absolute." but it is insisted that there existed a preexisting or
preferential right in each of these cases which was opposed to
the removal of the one entitled to support. It is true that in the
first the person claiming the option was the natural father of the
child and had married a woman other than the child's mother,
and in the second the right to support had already been
established by a final judgment in a criminal case.
Notwithstanding these facts the two cases clearly established
the proposition that the option given by article 149 of the Civil
Code may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention,
the decision of the supreme court of Spain, dated November 3,
1905. In this case Don Berno Comas, as a result of certain
business reverses and in order no to prejudice his wife,
conferred upon her powers to administer and dispose of her
property. When she left him he gave her all the muniments of
title, mortgage credits, notes, P10,000 in accounts receivable,
and the key to the safe in which he kept a large amount of
jewels, thus depriving himself of all his possessions and being
reduced in consequence to want. Subsequently he instituted
this civil action against his wife, who was then living in
opulence, for support and the revocation of the powers
heretofore granted in reference to the administration and
disposal of her property. In her answer the wife claimed that the
plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted
by her were bilateral and could not be canceled by the plaintiff.
From a judgment in favor of the plaintiff the defendant wife
appealed to the Audencia Territorialwherein, after due trial,
judgment was rendered in her favor dismissing the action upon
the merits. The plaintiff appealed to the supreme court and that

high tribunal, in affirming the judgment of the Audencia

Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing
that the spouses are mutually obliged to provide each other with
support, cannot but be subordinate to the other provisions of
said Code which regulates the family organization and the
duties of spouses not legally separated, among which duties are
those of their living together and mutually helping each other, as
provided in article 56 of the aforementioned code; and taking
this for granted, the obligation of the spouse who has property
to furnish support to the one who has no property and is in need
of it for subsistence, is to be understood as limited to the case
where, in accordance with law, their separation has been
decreed, either temporarily or finally and this case, with respect
to the husband, cannot occur until a judgment of divorce is
rendered, since, until then, if he is culpable, he is not deprived
of the management of his wife's property and of the product of
the other property belonging to the conjugal partnership; and
Considering that, should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible
with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in
opposition to what the law, in conformity with good morals, has
established; and.
Considering that, as the spouses D. Ramon Benso and Doa
Adela Galindo are not legally separated, it is their duty to live
together and afford each other help and support; and for this
reason, it cannot be held that the former has need of support
from his wife so that he may live apart from her without the
conjugal abode where it is his place to be, nor of her conferring
power upon him to dispose even of the fruits of her property in
order therewith to pay the matrimonial expenses and,
consequently, those of his own support without need of going to
his wife; wherefore the judgment appealed from, denying the
petition of D. Ramon Benso for support, has not violated the
articles of the Civil Code and the doctrine invoked in the
assignments of error 1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it
appears quite clearly that the spouses separated voluntarily in
accordance with an agreement previously made. At least there
are strong indications to this effect, for the court says, "should
the doctrine maintained in the appeal prevail, it would allow
married persons to disregard the marriage bond and separate
from each other of their own free will." If this be the true basis
upon which the supreme court of Spain rested its decision, then
the doctrine therein enunciated would not be controlling in
cases where one of the spouses was compelled to leave the
conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish
support. That this is true appears from the decision of the same
high tribunal, dated October 16, 1903. In this case the wife

brought an action for support against her husband who had

willfully and voluntarily abandoned the conjugal abode without
any cause whatever. The supreme court, reversing the
judgment absolving the defendant upon the ground that no
action for divorce, etc., had been instituted, said:
In the case at bar, it has been proven that it was Don Teodoro
Exposito who left the conjugal abode, although he claims,
without however proving his contention, that the person
responsible for this situation was his wife, as she turned him out
of the house. From this state of affairs it results that it is the wife
who is party abandoned, the husband not having prosecuted
any action to keep her in his company and he therefore finds
himself, as long as he consents to the situation, under the
ineluctable obligation to support his wife in fulfillment of the
natural duty sanctioned in article 56 of the Code in relation with
paragraph 1 of article 143. In not so holding, the trial court, on
the mistaken ground that for the fulfillment of this duty the
situation or relation of the spouses should be regulated in the
manner it indicates, has made the errors of law assigned in the
first three grounds alleged, because the nature of the duty of
affording mutual support is compatible and enforcible in all
situations, so long as the needy spouse does not create any
illicit situation of the court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme
court of Spain in its decision of November 3, 1905, and if the
court did hold, as contended by counsel for the defendant in the
case under consideration, that neither spouse can be compelled
to support the other outside of the conjugal abode, unless it be
by virtue of a final judgment granting the injured one a divorce
or separation from the other, still such doctrine or holding would
not necessarily control in this jurisdiction for the reason that the
substantive law is not in every particular the same here as it is
in Spain. As we have already stated, articles 42 to 107 of the
Civil Code in force in the Peninsula are not in force in the
Philippine Islands. The law governing the duties and obligations
of husband and wife in this country are articles 44 to 78 of the
Law of Civil Marriage of 1870 .In Spain the complaining spouse
has, under article 105 of the Civil Code, various causes for
divorce, such as adultery on the part of the wife in every case
and on the part of the husband when public scandal or disgrace
of the wife results therefrom; personal violence actually inflicted
or grave insults: violence exercised by the husband toward the
wife in order to force her to change her religion; the proposal of
the husband to prostitute his wife; the attempts of the husband
or wife to corrupt their sons or to prostitute their daughters; the
connivance in their corruption or prostitution; and the
condemnation of a spouse to perpetual chains or hard labor,
while in this jurisdiction the only ground for a divorce is adultery.
(Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive
and absolute doctrine was announced by this court in the case
just cited after an exhaustive examination of the entire subject.
Although the case was appealed to the Supreme Court of the
United States and the judgment rendered by this court was
there reversed, the reversal did not affect in any way or weaken

the doctrine in reference to adultery being the only ground for a

divorce. And since the decision was promulgated by this court in
that case in December, 1903, no change or modification of the
rule has been announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is
equivalent to granting divorce or separation, as it necessitates a
determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and,
consequently, if a court lacks power to decree a divorce, as in
the instant case, power to grant a separate maintenance must
also be lacking. The weakness of this argument lies in the
assumption that the power to grant support in a separate action
is dependent upon a power to grant a divorce. That the one is
not dependent upon the other is apparent from the very nature
of the marital obligations of the spouses. The mere act of
marriage creates an obligation on the part of the husband to
support his wife. This obligation is founded not so much on the
express or implied terms of the contract of marriage as on the
natural and legal duty of the husband; an obligation, the
enforcement of which is of such vital concern to the state itself
that the laws will not permit him to terminate it by his own
wrongful acts in driving his wife to seek protection in the
parental home. A judgment for separate maintenance is not due
and payable either as damages or as a penalty; nor is it a debt
in the strict legal sense of the term, but rather a judgment calling
for the performance of a duty made specific by the mandate of
the sovereign. This is done from necessity and with a view to
preserve the public peace and the purity of the wife; as where
the husband makes so base demands upon his wife and
indulges in the habit of assaulting her. The pro tanto separation
resulting from a decree for separate support is not an
impeachment of that public policy by which marriage is
regarded as so sacred and inviolable in its nature; it is merely a
stronger policy overruling a weaker one; and except in so far
only as such separation is tolerated as a means of preserving
the public peace and morals may be considered, it does not in
any respect whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme sole.
The foregoing are the grounds upon which our short opinion
and order for judgment, heretofore filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.
FACTS: Luisa Goitia y de la Camara, petitioner, and Jose
Campos y Rueda, respondent, were married on January 7,
1915 and had a residence at 115 Calle San Marcelino Manila.
They stayed together for a month before petitioner returned to
her parents home. Goitia filed a complaint against respondent
for support outside the conjugal home. It was alleged that
respondent demanded her to perform unchaste and lascivious
acts on his genital organs. Petitioner refused to perform such
acts and demanded her husband other than the legal and valid
cohabitation. Since Goitia kept on refusing, respondent
maltreated her by word and deed, inflicting injuries upon her
lops, face and different body parts. The trial court ruled in favor

of respondent and stated that Goitia could not compel her

husband to support her except in the conjugal home unless it is
by virtue of a judicial decree granting her separation or divorce
from respondent. Goitia filed motion for review.
ISSUE: Whether or not Goitia can compel her husband to
support her outside the conjugal home.
HELD: The obligation on the part of the husband to support his
wife is created merely in the act of marriage. The law provides
that the husband, who is obliged to support the wife, may fulfill
the obligation either by paying her a fixed pension or by
maintaining her in his own home at his option. However, this
option given by law is not absolute. The law will not permit the
husband to evade or terminate his obligation to support his wife
if the wife is driven away from the conjugal home because of his
wrongful acts. In the case at bar, the wife was forced to leave
the conjugal abode because of the lewd designs and physical
assault of the husband, she can therefore claim support from
the husband for separate maintenance even outside the
conjugal home.
WARREN v. The STATE. Decided: August 31, 2000
Nicholas E. White, Hawkinsville, for appellant. Charles H.
Weston, District Attorney, Myra Y. Christian, Howard Z. Simms,
Assistant District Attorneys, for appellee.
A Bibb County jury found Carlos Warren guilty of five counts of
aggravated assault and one count of participation in gang
activity in connection with the drive-by shooting of a house on
May 6, 1996.1 Because the evidence was sufficient and the trial
court did not err, we affirm.On appeal, Warren asserts that the
evidence was insufficient to support his convictions and that the
trial court erred by failing to hold an evidentiary hearing on his
motion for a continuance due to pretrial publicity.
Initially, we note that the relevant background facts are set forth
in Warren v. State,1.2 We need not repeat those facts here.
in which we affirmed the conviction of Carlos Warren's brother
and co-defendant, Kareem Warren.
Even though there was no evidence as to which of the
occupants of the car actually fired the shots, the evidence was
sufficient to tie Warren to the drive-by shooting, either as the
shooter or as a party to the crime. Finally, two of the victims
testified that Warren apologized to them after the incident,
saying that the shooting was meant for someone else.
Another victim told police that she saw Warren in the car
immediately before the shooting. One of the victims heard a
pistol cock after he exchanged a few words with Warren.
However, two of the victims testified that they saw Warren,
along with his brother and a third person, in the car no more
than fifteen minutes before the shooting and that Warren had a
gun in his hand. Warren contends that several of the victims of
the drive-by shooting were unable to identify him as one of the
occupants of the car in question. (a)3 Although Warren
argues that the victims' testimony is not believable because they
were admitted gang members, the credibility of witnesses is a
matter for the jury.4

Rather, the State had to show that Warren committed a felony

for the benefit of, at the direction of, or in association with any
criminal street gang with the specific intent to promote, further,
or assist in any criminal conduct by gang members.16-15-4(b)
(1), under which Warren was charged and which was applicable
at the time, did not require the State to prove that Warren was a
member of a gang. But former OCGA Warren also
contends that the evidence was insufficient to support his
conviction of participation in gang activity because there was no
evidence that he was a member of a gang. (b)5 The record
shows that the State met that burden here.
A bystander found a blue bandanna-which, according to Officer
Fletcher, is a symbol of the Bloomfield Gangster Crips-at the
scene of that shooting. Someone-identified by one of the
victims as Kareem Warren-shot at the group from inside the car.
Three of the victims testified that, about a month before the
May 6 drive-by shooting, they and other Folks Nation members
were walking to a basketball court when a car belonging to
Carlos Warren drove by. One of the victims of the May 6
shooting testified that he knew there was a problem between
Kareem Warren and another Folks Nation member who was not
present at the house that day. Macon Police Officer Karl
Fletcher testified that Kareem Warren was a member of the
Bloomfield Gangster Crips, a rival gang. The evidence
showed that the victims were members of Folks Nation, a street
gang. The State's theory of the case was that the May 6 driveby shooting was an attempt at revenge by members of one
gang against a member of a rival gang. 6 Thus, there was
sufficient evidence for the jury to conclude that Carlos Warren
committed the aggravated assaults in connection with his
brother, a gang member, to promote, further, or assist gang
activity.Finally, two of the victims testified that Carlos Warren
apologized to them after the May 6 shooting and said that it was
meant for someone else.
To obtain a continuance or change of venue due to pretrial
publicity, the defendant must show either that the setting of the
trial is inherently prejudicial or that the jury selection process
showed actual prejudice that rendered a fair trial impossible.
Warren argues that the trial court violated his due process rights
by refusing to grant an evidentiary hearing on his motion for a
continuance due to pretrial publicity. 2.7 Whether to grant
such a motion is within the sound discretion of the trial court.8
Before trial, the trial court instructed the jurors to ignore any
media coverage of the case. Counsel for all defendants
specifically stated that they had no objection to the impaneling
of the jurors, and counsel did not renew their motion for
continuance. A full panel of jurors was then chosen. The trial
court denied the motion at that time, stating, The test is to try to
impanel an impartial jury and if you can't do so, then a
continuance may be warranted. Counsel did not request an
evidentiary hearing. Counsel argued that recent articles in the
local paper would make it very difficult to impanel an impartial
jury. Counsel for Kareem Warren argued the motion for
continuance on behalf of all defendants prior to jury selection.

The mere existence of newspaper stories about a case does

not render the trial setting inherently prejudicial.Under these
circumstances, the trial court did not abuse its discretion by
denying the motion for continuance or by failing to hold an
evidentiary hearing. 9 Moreover, counsel were able to agree
on a panel of jurors and raised no objections concerning their
impartiality.And, as the jury selection was not transcribed,
there is no evidence in the record that the jurors were actually
prejudiced by the newspaper articles in question, or even that
they had read them. 10
Judgment affirmed.
Thurman v. City of Torrington United States District Court D.
Connecticut
October
23,
1984
595 F.Supp. 1521 [The following are excerpts from the case.
The complete case is available in the optional reading section.]
RULING ON MOTION TO DISMISS
BLUMENFELD, Senior District Judge. The plaintiffs have
brought this action pursuant to 42 U.S.C. 1983, 1985,
1986 and 1988, as well as the fifth, ninth, and fourteenth
amendments to the Constitution, alleging that their constitutional
rights were violated by the nonperformance or malperformance
of official duties by the defendant police officers. In addition, the
plaintiffs seek to hold liable the defendant City of Torrington
(hereinafter, the "City"). The defendant City has filed a motion to
dismiss the plaintiffs' complaint, or various claims therein,
pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
On a motion to dismiss, the sole issue is whether under the
facts alleged in the plaintiff's complaint it appears to a certainty
that the plaintiff is entitled to no relief. Holmes v. Silver Cross
Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972). A
complaint should not be dismissed unless it appears that the
plaintiff could prove no set of facts in support of her claim which
would entitle her to relief. U.S. Steel Corp. v. Multistate Tax
Commission, 367 F.Supp. 107 (S.D.N.Y.1973). Furthermore, it is
well settled that for purposes of a motion to dismiss, the well
pleaded material allegations of the complaint are taken as true.
2A Moore's Federal Practice 2267, 12.08 n. 3. Accordingly,
the material facts of this case are as follows:
Between early October 1982 and June 10, 1983, the plaintiff,
Tracey Thurman, a woman living in the City of Torrington, and
others on her behalf, notified the defendant City through the
defendant police officers of the City of repeated threats upon
her life and the life of her child, the plaintiff Charles J. Thurman,
Jr., made by her estranged husband, Charles Thurman.
Attempts to file complaints by plaintiff Tracey Thurman against
her estranged husband in response to his threats of death and
maiming were ignored or rejected by the named defendants and
the defendant City. An abbreviated chronology of the plaintiff's
attempted and actual notifications of the threats made against
her and her son by her estranged husband to the defendant City
and police officers is appropriate for consideration of this
motion. In October 1982, Charles Thurman attacked plaintiff
Tracey Thurman at the home of Judy Bentley and Richard St.

Hilaire in the City of Torrington. Mr. St. Hilaire and Ms. Bentley
made a formal complaint of the attack to one of the unnamed
defendant police officers and requested efforts to keep the
plaintiff's husband, Charles Thurman, off their property. On or
about November 5, 1982, Charles Thurman returned to the St.
Hilaire- Bentley residence and using physical force took the
plaintiff Charles J. Thurman, Jr. from said residence. Plaintiff
Tracey Thurman and Mr. St. Hilaire went to Torrington police
headquarters to make a formal complaint. At that point,
unnamed defendant police officers of the City of Torrington
refused to accept a complaint from Mr. St. Hilaire even as to
trespassing. On or about November 9, 1982, Charles Thurman
screamed threats at Tracey while *1525 she was sitting in her
car. Defendant police officer Neil Gemelli stood on the street
watching Charles Thurman scream threats at Tracey until
Charles Thurman broke the windshield of plaintiff Tracey
Thurman's car while she was inside the vehicle. Charles
Thurman was arrested after he broke the windshield, and on the
next day, November 10, 1982, he was convicted of breach of
peace. He received a suspended sentence of six months and a
two-year "conditional discharge," during which he was ordered
to stay completely away from the plaintiff Tracey Thurman and
the Bentley-St. Hilaire residence and to commit no further
crimes. The court imposing probation informed the defendants
of this sentence.
On December 31, 1982, while plaintiff Tracey Thurman was at
the Bentley-St. Hilaire residence, Charles Thurman returned to
said residence and once again threatened her. She called the
Torrington Police Department. One of the unnamed police
officer defendants took the call, and, although informed of the
violation of the conditional discharge, made no attempt to
ascertain Charles Thurman's whereabouts or to arrest him.
Between January 1, 1983 and May 4, 1983, numerous
telephone complaints to the Torrington Police Department were
taken by various unnamed police officers, in which repeated
threats of violence to the plaintiffs by Charles Thurman were
reported and his arrest on account of the threats and violation of
the terms of his probation was requested.
On May 4 and 5, 1983, the plaintiff Tracey Thurman and Ms.
Bentley reported to the Torrington Police Department that
Charles Thurman had said that he would shoot the plaintiffs.
Defendant police officer Storrs took the written complaint of
plaintiff Tracey Thurman who was seeking an arrest warrant for
her husband because of his death threat and violation of his
"conditional discharge." Defendant Storrs refused to take the
complaint of Ms. Bentley. Plaintiff Tracey Thurman was told to
return three weeks later on June 1, 1983 when defendant Storrs
or some other person connected with the police department of
the defendant City would seek a warrant for the arrest of her
husband.
On May 6, 1983, Tracey filed an application for a restraining
order against
Charles Thurman in the Litchfield Superior Court. That day, the
court issued an ex parte restraining order forbidding Charles

Thurman from assaulting, threatening, and harrassing Tracey

Thurman. The defendant City was informed of this order.
On May 27, 1983, Tracey Thurman requested police protection
in order to get to the Torrington Police Department, and she
requested a warrant for her husband's arrest upon her arrival at
headquarters after being taken there by one of the unnamed
defendant police officers. She was told that she would have to
wait until after the Memorial Day holiday weekend and was
advised to call on Tuesday, May 31, to pursue the warrant
request.
On May 31, 1983, Tracey Thurman appeared once again at the
Torrington Police Department to pursue the warrant request.
She was then advised by one of the unnamed defendant police
officers that defendant Schapp was the only policeman who
could help her and that he was on vacation. She was told that
she would have to wait until he returned. That same day,
Tracey's brother-in-law, Joseph Kocsis, called the Torrington
Police Department to protest the lack of action taken on
Tracey's complaint. Although Mr. Kocsis was advised that
Charles Thurman would be arrested on June 8, 1983, no such
arrest took place.
On June 10, 1983, Charles Thurman appeared at the BentleySt. Hilaire residence in the early afternoon and demanded to
speak to Tracey. Tracey, remaining indoors, called the
defendant police department asking that Charles be picked up
for violation of his probation. After about 15 minutes, Tracey
went outside to speak to her husband in an effort to persuade
him not to take or hurt Charles Jr. Soon thereafter, Charles
began to stab Tracey repeatedly in the chest, neck and throat.
Approximately 25 minutes after Tracey's call to the Torrington
Police Department *1526 and after her stabbing, a single police
officer, the defendant Petrovits, arrived on the scene. Upon the
arrival of Officer Petrovits at the scene of the stabbing, Charles
Thurman was holding a bloody knife. Charles then dropped the
knife and, in the presence of Petrovits, kicked the plaintiff
Tracey Thurman in the head and ran into the Bentley-St. Hilaire
residence. Charles returned from within the residence holding
the plaintiff Charles Thurman, Jr. and dropped the child on his
wounded mother. Charles then kicked Tracey in the head a
second time. Soon thereafter, defendants DeAngelo, Nukirk,
and Columbia arrived on the scene but still permitted Charles
Thurman to wander about the crowd and to continue to threaten
Tracey. Finally, upon approaching Tracey once again, this time
while she was lying on a stretcher, Charles Thurman was
arrested and taken into custody.
It is also alleged that at all times mentioned above, except for
approximately two weeks following his conviction and
sentencing on November 10, 1982, Charles Thurman resided in
Torrington and worked there as a counterman and short order
cook at Skie's Diner. There he served many members of the
Torrington Police Department including some of the named and
unnamed defendants in this case. In the course of his
employment Charles Thurman boasted to the defendant police

officer patrons that he intended to "get" his wife and that he

intended to kill her.
I. Motion to Dismiss the Claims of Tracey Thurman
The defendant City now brings a motion to dismiss the claims
against it. The City first argues that the plaintiff's complaint
should be dismissed for failure to allege the deprivation of a
constitutional right. Though the complaint alleges that the
actions of the defendants deprived the plaintiff Tracey Thurman
of her constitutional right to equal protection of the laws, the
defendant City argues that the equal protection clause of the
fourteenth amendment "does not guarantee equal application of
social services." Defendant's Memorandum at 4. Rather, the
defendant City argues that the equal protection clause "only
prohibits intentional discrimination that is racially motivated"
citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1979) and Washington
v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 547 (1976).
The defendant City's argument is clearly a misstatement of the
law. The application of the equal protection clause is not limited
to racial classifications or racially motivated discrimination. The
equal protection clause will be applied to invalidate state laws
which classify on the basis of alienage for the purpose of the
distribution of economic benefits unless that law is necessary to
promote a compelling or overriding state interest. Graham v.
Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534
(1971); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d
910 (1973). The equal protection clause will be applied to strike
down classifications based on legitimacy at birth if they are not
related to a legitimate state interest. Pickett v. Brown, 462 U.S.
1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel,
456 U.S. 91, 97-99, 102 S.Ct. 1549, 1553-1554, 71 L.Ed.2d 770
(1982). Classifications on the basis of gender will be held invalid
under the equal protection clause unless they are substantially
related to an important governmental objective, Craig v. Boren,
429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976),
reh'g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574
(1977). And lastly, the equal protection clause will be applied to
strike down classifications which are not rationally related to a
legitimate governmental purpose. San Antonio School Dist. v.
Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278, 1308, 36 L.Ed.2d 16,
reh'g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418
(1973).
In the instant case, the plaintiffs allege that the defendants use
an administrative classification that manifests itself in
discriminatory treatment violative of the equal protection clause.
Police protection in the City of Torrington, they argue, is *1527
fully provided to persons abused by someone with whom the
victim has no domestic relationship. But the Torrington police
have consistently afforded lesser protection, plaintiffs allege,
when the victim is (1) a woman abused or assaulted by a
spouse or boyfriend, or (2) a child abused by a father or
stepfather. The issue to be decided, then, is whether the
plaintiffs have properly alleged a violation of the equal
protection clause of the fourteenth amendment.

Police action is subject to the equal protection clause and

section 1983 whether in the form of commission of violative acts
or omission to perform required acts pursuant to the police
officer's duty to protect. Smith v. Ross, 482 F.2d 33, 36-37 (6th
Cir.1973) ("law enforcement officer can be liable under 1983
when by his inaction he fails to perform a statutorily imposed
duty to enforce the laws equally and fairly, and thereby denies
equal protection."); Byrd v. Brishke, 466 F.2d 6, 11 (7th
Cir.1972) (police officer liable under section 1983 for failing to
prevent beating of plaintiff by other officers); Azar v. Conley, 456
F.2d 1382, 1387 (6th Cir.1972). See also Cooper v. Molko, 512
F.Supp. 563, 567 (N.D.Cal.1981), and Huey v. Barloga, 277
F.Supp. 864, 872-73 (N.D.Ill.1967) (failure of city officials and
police officers to perform their duty of taking reasonable
measures to protect personal safety of persons whom they
know may be attacked is a denial of equal protection of the laws
and is actionable under section 1983). City officials and police
officers are under an affirmative duty to preserve law and order,
and to protect the personal safety of persons in the community.
Id. at 872. This duty applies equally to women whose personal
safety is threatened by individuals with whom they have or have
had a domestic relationship as well as to all other persons
whose personal safety is threatened, including women not
involved in domestic relationships. If officials have notice of the
possibility of attacks on women in domestic relationships or
other persons, they are under an affirmative duty to take
reasonable measures to protect the personal safety of such
persons in the community. Failure to perform this duty would
constitute a denial of equal protection of the laws.
Although the plaintiffs point to no law which on its face
discriminates against victims abused by someone with whom
they have a domestic relationship, the plaintiffs have alleged
that there is an administrative classification used to implement
the law in a discriminatory fashion. It is well settled that the
equal protection clause is applicable not only to discriminatory
legislative action, but also to discriminatory governmental action
in administration and enforcement of the law. See Yick Wo v.
Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886);
Britton v. Rogers, 631 F.2d 572, 577 (8th Cir.1980), cert. denied,
451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981); and
Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates,
485 F.Supp. 400, 409 (1980) (administrative classifications can
give rise to an equal protection claim), order rev'd on other
grounds, 639 F.2d 373 (7th Cir.1981), judgment rev'd on other
grounds, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, reh'g
denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982).
Here the plaintiffs were threatened with assault in violation of
Connecticut law. Over the course of eight months the police
failed to afford the plaintiffs protection against such assaults,
and failed to take action to arrest the perpetrator of these
assaults. The plaintiffs have alleged that this failure to act was
pursuant to a pattern or practice of affording inadequate
protection, or no protection at all, to women who have
complained of having been abused by their husbands or others

with whom they have had close relations. Amended Complaint,

13. Such a practice is tantamount to an administrative
classification used to implement the law in a discriminatory
fashion.
If the City wishes to discriminate against women who are the
victims of domestic violence, it must articulate an important
governmental interest for doing so. Craig v. Boren, 429 U.S.
190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976), reh'g
denied, *1528429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574
(1977); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d
225 (1971). In its memorandum and at oral argument the City
has failed to put forward any justification for its
disparate treatment of women. [FN1] Such a practice was at
one time sanctioned by law:
FN1. It may develop that the classification in the instant case is
not one based on gender, but instead consists of all spouses
who are victims of domestic violence--male and female. At this
stage of the proceedings, however, plaintiffs' allegations of
gender-based discrimination will be taken as true. In one study
of interspousal abuse it is claimed that "in 29 out of every 30
such cases the husband stands accused of abusing his wife."
Leeds, Family Offense Cases in the Family Court System: A
Statistical Description, Henry Street Settlement Urban Life
Center, Nov. 1978, p. ii, cited in Bruno v. Codd, 47 N.Y.2d 582,
419 N.Y.S.2d 901, 902 n. 2, 393 N.E.2d 976, 977 n. 2.
English common law during the eighteenth century recognized
the right of husbands to physically discipline their wives.
Subsequently, American common law in the early nineteenth
century permitted a man to chastise his wife " 'without
subjecting himself to vexatious prosecutions for assault and
battery, resulting in the discredit and shame of all parties
concerned.' " Some restrictions on the right of chastisement
evolved through cases which defined the type, severity, and
timing of permissible wife-beating.... B. Finesmith, Police
Response to Battered Women: Critique and Proposals for
Reform, 14 Seton Hall L.Rev. 74, 79 (1983) (citations omitted).
In our own country a husband was permitted to beat his wife so
long as he didn't use a switch any bigger around than his
thumb. In 1874 the Supreme Court of North Carolina nullified
the husband's right to chastise his wife "under any
circumstances." But the court's ruling became ambiguous when
it added, "If no permanent injury has been inflicted, nor malice,
cruelty, nor dangerous violence shown by the husband, it is
better to draw the curtain, shut out the public gaze, and leave
the parties to forgive and forget." Del Martin, "Scope of the
Problem," Battered Women: Issues of Public Policy (1978)
(Consultation Sponsored by the United States Commission on
Civil Rights) (hereinafter "Consultation") at 6.
Today, however, any notion of a husband's prerogative to
physically discipline his wife is an "increasingly outdated
misconception." Craig v. Boren, 429 U.S. at 198-99, 97 S.Ct. at
457-58. As such it must join other "archaic and overbroad"
premises which have been rejected as unconstitutional.
Crawford v. Cushman, 531 F.2d 1114 (2d Cir.1976) (rejecting

the notion that pregnancy renders servicewomen unfit and

requires discharge); Weinberger v. Wiesenfeld, 420 U.S. 636,
643, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975) (rejecting
proposition that the earnings of female wage earners do not
significantly contribute to their families' support); Frontiero v.
Richardson, 411 U.S. 677, 689, 93 S.Ct. 1764, 1771, 36
L.Ed.2d 583 (1973) (rejecting assertion that female spouses of
servicemen would normally be dependent upon their husbands
while male spouses of servicewomen would not be dependent
upon their wives); Stanton v. Stanton, 421 U.S. 7, 14-15, 95
S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975) (rejecting "old
notion" that the female is destined solely for the home and the
rearing of the family and the male only for the marketplace and
the world of ideas).
A man is not allowed to physically abuse or endanger a woman
merely because he is her husband. Concommitantly, a police
officer may not knowingly refrain from interference in such
violence, and may not "automatically decline to make an arrest
simply because the assaulter and his victim are married to each
other." Bruno v. Codd, 90 Misc.2d 1047, 1049, 396 N.Y.S.2d
974, 976 (1976), rev'd on other grounds, 64 App.Div.2d 502,
407 N.Y.S.2d 165 (1978), aff'd, 47 N.Y.2d 582, 419 N.Y.S.2d
901, 393 N.E.2d 976 (1979). Such inaction on the part of the
officer is a denial of the equal protection of the laws.*1529
In addition, any notion that defendants' practice can be justified
as a means of promoting domestic harmony by refraining from
interference in marital disputes, has no place in the case at
hand. [FN2] Rather than evidencing a desire to work out her
problems with her husband privately, Tracey pleaded with the
police to offer her at least some measure of protection. Further,
she sought and received a restraining order to keep her
husband at a distance. Finally, it is important to recall here the
Supreme Court's dictum in Reed v. Reed, 404 U.S. at 77, 92
S.Ct. at 254, that "whatever may be said as to the positive
values of avoiding intrafamily controversy, the choice in this
context may not lawfully be mandated solely on the basis of
sex." Accordingly, the defendant City of Torrington's motion to
dismiss the plaintiff Tracey Thurman's complaint on the basis of
failure to allege violation of a constitutional right is denied.
FN2. See Finesmith, supra, at 82 (referring to the factor of "Lack
of Social/Legal Resources" as one of the variety of factors
which combine to support the maintenance of violent
households--"the societal and prosecutorial view that domestic
abuse is a minor problem best handled in the home"). Cf. id. at
80, citing Eisenberg & Micklow, The Assaulted Wife: Catch 22
Revisited, 3 Women's Rights L.Rep. 138, 146 (1977). The
"banner of supporting the marital relationship and domestic
harmony" has also been seen as a justification for interspousal
tort immunity. According to one commentator, that doctrine
"appeared in court decisions of the early 1900's to prevent
battered wives from bringing actions in tort against their abusing
spouses."
...

Summary In November 2003 the Las Vegas Metropolitan

Police Department executed a decoy operation targeting the
crime of robbery. An officer was posed on a public street
dressed as an intoxicated, off-duty casino dealer with a stack of
twenty one-dollar bills visible in his left dress shirt pocket. The
defendant approached the officer, made conversation and
casually removed the dollar bills while placing his arm around
the officer. When the officer acted as though he was turning his
head to catch the defendant in the act, the defendant pushed
the officers head away with his forearm twice. The defendant
was arrested and charged with robbery and conspiracy to
commit robbery. He pled not guilty. The State informed the court
that if the defendant used an entrapment defense it intended to
use a certified minute order from a prior California conviction as
rebuttal to show predisposition. Defense counsel said he would
pursue an entrapment defense and objected to the sufficiency
of the minute orders ability to demonstrate that the defendant
was the named individual. The court ruled that the State could
use the minute order for rebuttal to an entrapment defense.
Defense counsel informed the court that the defendant would
testify and asked whether the State intended to use the minute
order to impeach. The State said it would. Defense renewed its
objection to the minute order based on identity. The court ruled
that if the defendant testified, the State could use the minute
order to impeach his testimony. The State informed the court
that it had evidence of the defendants 1984 Washington
conviction that it also wanted to use for rebuttal and
impeachment. The defense objected. The court ruled that the
Washington conviction was too remote in time. The Washington
conviction remained relevant, however, because the fingerprints
on the Washington conviction had the same FBI fingerprint
identification number as those on the California certified minute
order, thus it served to indicate that he was the individual
named in the minute order. The defendant did not testify and
declined the courts invitation to request any jury instructions on
entrapment. The defendant was found guilty of robbery and not
guilty of conspiracy to commit robbery. The defendant appealed
the trial courts ruling on the admissibility of the minute order.
The Nevada Supreme Court adopted the view that a defendant
preserves his right to appeal an in limine ruling based on
improper impeachment, when he does not testify, so long as he
makes an offer of proof as to what his testimony would have
been absent the ruling. Additionally, they held that a certified
minute may be used for rebuttal and not for impeachment but
that its admission for impeachment here was harmless error. 1
By Charles R. Cordova, Jr. 2 Issues and Disposition
Issues (1) Does Nevada follow the holding of Luce v. U.S. , 2
which states that a defendant waives his right to appeal based
on improper impeachment when he fails to testify? (2) May the
State use a certified minute order to show predisposition in
rebutting an entrapment defense? (3) May the State use a
certified minute order to impeach the testimony of the
defendant? Disposition (1) The Nevada Supreme Court held
that Nevada does not follow the Luce v. U.S. rule and instead

follows the holding of Wickham v. State. 3 A defendant does not

waive his right to appeal based on improper impeachment if he
makes an offer of proof outlining his intended testimony and it is
clear from the record that he would have testified, but for the in
limine ruling of the trial court. (2) The State may use a certified
minute order to show predisposition in rebutting an entrapment
defense under NRS 48.055(b) and according to the three part
test enumerated in Foster v. State. 4 (3) The State may not use
a certified minute order to impeach the testimony of a defendant
under NRS 50.095. The court determined that the statute
instead requires a judgment of conviction. Here, however, since
the certified minute order was admissible for rebuttal, the court
determined that its admission for impeachment purposes was
harmless error.
Commentary State of the Law Before Warren The court
decided an issue similar to issue (1) above in Pineda v. State.5
In Pineda the court held that a defendant preserves his right to
appeal even if he first introduces evidence of his prior
convictions that was ruled admissible during pretrial motions
over his objection.6 The court in the present case clarified that
while similar to Pineda, the question here is distinct 2 469 U.S.
38 (1984). 3 Id.; 770 P.2d 757 (Alaska Ct. App. 1989). 4 116
Nev. 1088, 13 P.3d 61 (2000). 5 120 Nev. 204, 88 P.3d 827
(2004). 6 Id. 3 because it presents an additional issue. In
Pineda the concern was that without the defendants testimony
the court would not be able to properly weigh the probative
value against its prejudicial effect.7 In addition to that concern,
the circumstances of this case raise the issue of the courts
ability to conduct harmless error review, thus Pineda did not
control.
Other Jurisdictions Most states facing the issue have adopted
the holding of Luce v. U.S.. However, a significant minority have
declined. The Court in Luce held that a defendant must testify in
order to preserve for appeal a claim of improper impeachment
with a prior conviction.8 They determined that any harm that
may result from a trial courts in limine ruling is purely
speculative unless and until the defendant actually testifies.9
Nevada and the other jurisdictions rejecting the Luce rule have
determined that there are other means to obtain adequate
information such that an appellate court may make a
determination of whether the probative value outweighs the
prejudicial effect.
Effect of Warren on Current Law Warren makes it clear when
a defendant may decline to testify and yet preserve his right to
appeal the admission of impeachment evidence. So long as the
defendant makes an offer of proof as to what his testimony
would have been in the absence of the in limine ruling, his
appeal is preserved.
Unanswered Questions None.
Conclusion The Nevada Supreme Court adopted a more
lenient rule of criminal appeals than the U.S. Supreme Courts
rule in Luce v. U.S.10 They found that there would be an
adequate record produced for appeal if the defendant makes an
offer of proof and that this would better allow them to conduct

harmless error review. The court clarified the admissibility of a

certified minute order for purposes of rebuttal and
impeachment. A certified minute order may properly be admitted
to show predisposition in rebutting an entrapment defense
under NRS 48.055(b). A certified minute order may not be
properly admitted to impeach the testimony of a defendant
under NRS 50.095.
III. Have the Plaintiffs Properly Alleged a Custom or Policy
on the Part of the City of Torrington?
The plaintiffs have alleged in paragraph 13 of their complaint as
follows:
During the period of time described herein, and for a long time
prior thereto, the defendant City of Torrington acting through its
Police Department, condoned a pattern or practice of affording
inadequate protection, or no protection at all, to women who
have complained of having been abused by their husbands or
others with whom they have had close relations. Said pattern,
custom or policy, well known to the individual defendants, was
the basis on which they ignored said numerous complaints and
reports of threats to the plaintiffs with impunity. *1530
While a municipality is not liable for the constitutional torts of its
employees on a respondeat superior theory, a municipality may
be sued for damages under section 1983 when "the action that
is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by the body's officers" or is "visited
pursuant to governmental 'custom' even though such a custom
has not received formal approval through the body's official
decision-making channels." Monell v. New York City Department
of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56
L.Ed.2d 611 (1978). [FN3]
FN3. Such a custom or policy, if found to exist in the instant
case, would not be unique. See Finesmith, supra, at 84-101,
where the author outlines the official police guidelines for
dealing
with domestic disputes in 30 major American cities.
Some degree of specificity is required in the pleading of a
custom or policy on the part of a municipality. Mere conclusory
allegations devoid of factual content will not suffice. See
Schramm v. Krischell, 84 F.R.D. 294 (D.Conn.1979). As this
court has pointed out, a plaintiff must typically point to facts
outside his own case to support his allegation of a policy on the
part of a municipality. Appletree v. City of Hartford, 555 F.Supp.
224, 228 (D.Conn.1983).
In the instant case, however, the plaintiff Tracey Thurman has
specifically alleged in her statement of facts a series of acts and
omissions on the part of the defendant police officers and police
department that took place over the course of eight months.
From this particularized pleading a pattern emerges that
evidences deliberate indifference on the part of the police
department to the complaints of the plaintiff Tracey Thurman
and to its

duty to protect her. Such an ongoing pattern of deliberate

indifference raises an inference of "custom" or "policy" on the
part of the municipality. See Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), reh'g denied,
429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) and Turpin
v. Mailet, 619 F.2d 196, 201-02 (2d Cir.), cert. denied, 449 U.S.
1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Furthermore, this
pattern of inaction climaxed on June 10, 1983 in an incident so
brutal that under the law of the Second Circuit that "single brutal
incident may be sufficient to suggest a link between a violation
of constitutional rights and a pattern of police misconduct."
Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444
U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). Finally, a
complaint of this sort will survive dismissal if it alleges a policy
or custom of condoning police misconduct that violates
constitutional rights and alleges "that the City's pattern of
inaction caused the plaintiffs any compensable injury." Batista v.
Rodriguez, 702 F.2d 393, 397-98 (2d Cir.1983); Escalera v. New
York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert.
denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970) ("an
action, especially under the Civil Rights Act, should not be
dismissed at the pleadings stage unless it appears to a certainty
that plaintiffs are entitled to no relief under any state of the facts,
which could be proved in support of their claims"). Accordingly,
defendant City of Torrington's motion to dismiss the plaintiffs
claims against it, on the ground that the plaintiffs failed to
properly allege a custom or policy on the part of the
municipality, is denied.
FACTS Charles and Tracey Thurman, estranged husband and
wife, had a violent separation. In October 1982, Charles
attacked Tracey and, using physical force took Charles
Thurman, Jr., from the residence. At the time, Tracey went to
the Torrington Police Department. The department refused to
accept the complaint. On November 9, 1982, Charles broke the
windshield of Traceys car while she was sitting in it. He was
convicted of breach of the peace, and received a suspended
sentence of six months in jail and a two year conditional
discharge. During the two-year period, he was to stay
completely away from Tracey and commit no further crimes.
During the period of conditional discharge, Tracey called the
police department several times complaining that Charles was
violating the terms of the discharge. The police refused to do
anything about Traceys complaints. At one point, Charles
threatened to kill Tracey. At that time, Tracey attempted to get
Charles arrested for violating his conditional discharge. The
police department refused to help Tracey. Officers repeatedly
asked her to return to the police station at a later date. Tracey
pursued her attempts to get Charles arrested, but to no avail.
On June 10, 1983, Charles appeared at the residence where
Tracey was staying. Tracey, remaining indoors, called the police
department and asked that Charles be arrested for violation of
the conditional discharge. After about 15 minutes, Tracey went
outside to persuade him not to take her or hurt Charles, Jr.
Soon thereafter, Charles began to stab Tracey in the chest,

neck, and throat. Approximately 25 minutes after Traceys call, a

single police officer arrived at the scene. When the officer
arrived, Charles dropped the knife, and in the officers presence,
kicked Tracey in the head and ran into the house. Charles
returned from the house holding Charles, Jr., and dropped the
child on his wounded mother. Charles then kicked Tracey in the
head a second time. Soon thereafter, three more police officers
arrived at the scene, but continued to let Charles wander about
the crowd and to continue to threaten Tracey. Finally, when
Charles approached Tracey again (this time, she was lying on a
stretcher) Charles was arrested and taken into custody.
ISSUE Did the conduct of the Torrington Police Department
deprive Tracey of her right to equal protection?
HOLDING Yes.
REASONING The court found that Tracey was discriminated
against because the violence was a domestic dispute. The
evidence showed that police protection was fully provided to
persons abused by someone with whom the victim had no
domestic relationship, but the police consistently afforded lesser
protection when the victim was a woman abused or assaulted
by a spouse or boyfriend or when a child was abused the a
father or stepfather. The court awarded Tracey $2.3 million.
PEOPLE v. LIBERTA 64 N.Y.2d 152, 474 N.E.2d 567, 485
N.Y.S.2d 207(1984) WACHTLER, Judge Defendant Mario
Liberta and Denise Liberta were married in 1978. Shortly after
the birth of their son, in October of that year, Mario began to
beat Denise. In early 1980 Denise brought a proceeding in the
Family Court in Erie County seeking protection from the
defendant. On April 30, 1980 a temporary order of protection
was issued to her by the Family Court. Under this order, the
defendant was to move out and remain away from the family
home, and stay away from Denise. The order provided that the
defendant could visit with his son once each weekend. On the
weekend of March 21, 1981, Mario, who was then living in a
motel, did not visit his son. On Tuesday, March 24, 1981 he
called Denise to ask if he could visit his son on that day. Denise
would not allow the defendant to come to her house, but she did
agree to allow him to pick up their son and her and take them
both back to his motel after being assured that a friend of his
would be with them at all times. The defendant and his friend
picked up Denise and their son and the four of them drove to
defendant's motel. When they arrived at the motel the friend left.
As soon as only Mario, Denise, and their son were alone in the
motel room, Mario attacked Denise, threatened to kill her, and
forced her to perform fellatio on him and to engage in sexual
intercourse with him. The son was in the room during the entire
episode, and the defendant forced Denise to tell their son to
watch what the defendant was doing to her. The defendant
allowed Denise and their son to leave shortly after the incident.
Denise, after going to her parents' home, went to a hospital to
be treated for scratches on her neck and bruises on her head
and back, all inflicted by her husband. She also went to the
police station, and on the next day she swore out a felony

complaint against the defendant. On July 15, 1981 the

defendant was indicted for rape in the first degree and sodomy
in the first degree. Section 130.35 of the Penal Law provides in
relevant part that A male is guilty of rape in the first degree
when he engages in sexual intercourse with a female . . . by
forcible compulsion. Female, for purposes of the rape statute,
is defined as any female person who is not married to the
actor (Penal Law, 130.00, subd. 4). . . . [D]ue to the not
married language in the definitions of female and deviate
sexual intercourse, there is a marital exemption for both
forcible rape and forcible sodomy. The marital exemption itself,
however, has certain exceptions. For purposes of the rape and
sodomy statutes, a husband and wife are considered to be not
married if at the time of the sexual assault they are living apart
. . . pursuant to a valid and effective: (i) order issued by a court
of competent jurisdiction which by its terms or in its effect
requires such living apart. We first address the defendant's
argument that, despite the order of protection, he was within the
marital exemption to rape and sodomy and thus could not be
prosecuted for either crime. . . . We agree with the Appellate
Division that the order of protection in the present case falls
squarely within the first of these situations. [The defendant then
argued that New York law violated equal protection by punishing
rape by unmarried men but not by married men with respect to
their wives.] As noted above, under the Penal Law a married
man ordinarily cannot be convicted of forcibly raping or
sodomizing his wife. This is the so-called marital exemption for
rape FN3 (see 1881 Penal Code, tit. X, ch. II, 278). Although a
marital exemption was not explicit in earlier rape statutes (see
1863 Rev.Stats. part 4, ch. I, tit. 2, art. 2, 22), an 1852 treatise
stated that a man could not be guilty of raping his wife (Barbour,
Criminal Law of State of New York [2d ed.], p. 69). The
assumption, even before the marital exemption was codified,
that a man could not be guilty of raping his wife, is traceable to
a statement made by the 17th century English jurist Lord Hale,
who wrote: [T]he husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given up herself in this kind
unto her husband, which she cannot retract (1 Hale, History of
Pleas of the Crown, p. 629). Although Hale cited no authority for
his statement it was relied on by State Legislatures which
enacted rape statutes with a marital exemption and by courts
which established a common-law exemption for husbands.
Presently, over 40 States still retain some form of marital
exemption for rape. While the marital exemption is subject to an
equal protection challenge, because it classifies unmarried men
differently than married men, the equal protection clause does
not prohibit a State from making classifications, provided the
statute does not arbitrarily burden a particular group of
individuals (Reed v. Reed, 404 U.S. 71). Where a statute draws
a distinction based upon marital status, the classification must
be reasonable and must be based upon some ground of
difference that rationally explains the different treatment We
find that there is no rational basis for distinguishing between

marital rape and nonmarital rape. The various rationales which

have been asserted in defense of the exemption are either
based upon archaic notions about the consent and property
rights incident to marriage or are simply unable to withstand
even the slightest scrutiny. We therefore declare the marital
exemption for rape in the New York statute to be
unconstitutional. Lord Hale's notion of an irrevocable implied
consent by a married woman to sexual intercourse has been
cited most frequently in support of the marital exemption (Equal
Protection Considerations, supra, n. 6, 16 N.Eng.L.Rev., at p.
21). Any argument based on a supposed consent, however, is
untenable. Rape is not simply a sexual act to which one party
does not consent. Rather, it is a degrading, violent act which
violates the bodily integrity of the victim and frequently causes
severe, long-lasting physical and psychic harm. To ever imply
consent to such an act is irrational and absurd. Other than in the
context of rape statutes, marriage has never been viewed as
giving a husband the right to coerced intercourse on demand.
Certainly, then, a marriage license should not be viewed as a
license for a husband to forcibly rape his wife with impunity. A
married woman has the same right to control her own body as
does an unmarried woman. If a husband feels aggrieved by
his wife's refusal to engage in sexual intercourse, he should
seek relief in the courts governing domestic relations, not in
violent or forceful self-help. The other traditional justifications
for the marital exemption were the common-law doctrines that a
woman was the property of her husband and that the legal
existence of the woman was incorporated and consolidated
into that of the husband (1 Blackstone's Commentaries [1966
ed.], p. 430). Both these doctrines, of course, have long been
rejected in this State. Indeed, [n]owhere in the common-law
world-[or] in any modern society-is a woman regarded as chattel
or demeaned by denial of a separate legal identity and the
dignity associated with recognition as a whole human being.
Because the traditional justifications for the marital exemption
no longer have any validity, other arguments have been
advanced in its defense. The first of these recent rationales,
which is stressed by the People in this case, is that the marital
exemption protects against governmental intrusion into marital
privacy and promotes reconciliation of the spouses, and thus
that elimination of the exemption would be disruptive to
marriages. While protecting marital privacy and encouraging
reconciliation are legitimate State interests, there is no rational
relation between allowing a husband to forcibly rape his wife
and these interests. The marital exemption simply does not
further marital privacy because this right of privacy protects
consensual acts, not violent sexual assaults. Just as a husband
cannot invoke a right of marital privacy to escape liability for
beating his wife, he cannot justifiably rape his wife under the
guise of a right to privacy. Similarly, it is not tenable to argue
that elimination of the marital exemption would disrupt
marriages because it would discourage reconciliation. Clearly, it
is the violent act of rape and not the subsequent attempt of the
wife to seek protection through the criminal justice system which

disrupts a marriage. Moreover, if the marriage has already

reached the point where intercourse is accomplished by violent
assault it is doubtful that there is anything left to reconcile. This,
of course, is particularly true if the wife is willing to bring criminal
charges against her husband which could result in a lengthy jail
sentence. Another rationale sometimes advanced in support of
the marital exemption is that marital rape would be a difficult
crime to prove. A related argument is that allowing such
prosecutions could lead to fabricated complaints by vindictive
wives. The difficulty of proof argument is based on the problem
of showing lack of consent. Proving lack of consent, however, is
often the most difficult part of any rape prosecution, particularly
where the rapist and the victim had a prior relationship.
Similarly, the possibility that married women will fabricate
complaints would seem to be no greater than the possibility of
unmarried women doing so. . . . The final argument in defense
of the marital exemption is that marital rape is not as serious an
offense as other rape and is thus adequately dealt with by the
possibility of prosecution under criminal statutes, such as
assault statutes, which provide for less severe punishment. The
fact that rape statutes exist, however, is a recognition that the
harm caused by a forcible rape is different, and more severe,
than the harm caused by an ordinary assault. . .
Moreover, there is no evidence to support the argument that
marital rape has less severe consequences than other rape. On
the contrary, numerous studies have shown that marital rape is
frequently quite violent and generally has more severe,
traumatic effects on the victim than other rape. . .. . . . Justice
Holmes wrote: It is revolting to have no better reason for a rule
of law than that so it was laid down in the time of Henry IV. It is
still more revolting if the grounds upon which it was laid down
have vanished long since, and the rule simply persists from
blind imitation of the past (Holmes, The Path of the Law, 10
Harv.L.Rev. 457, 469). This statement is an apt characterization
of the marital exemption; it lacks a rational basis, and therefore
violates the equal protection clauses of both the Federal and
State Constitutions.
Facts. Defendant Mario Liberta and Denise Liberta married in
1978. Defendant began to beat Denise shortly after the birth of
their son in October of that year. In 1980 Denise received a
temporary order of protection from Family Court. The order
required defendant to move out and remain away from the
family home and Denise. It allowed defendant to visit his son
once each weekend. On the weekend of March 21, 1981
defendant did not visit his son. On Tuesday of the following
week he called to request visitation. Denise agreed so long as
he picked up the son and her and took them to the motel he
was staying at under the understanding that a friend of his
would be with them at all times. The defendant and his friend
picked the two up and drove to the hotel. Upon arrival the friend
left. Shortly thereafter defendant attacked Denise, threatened to
kill her, and forced her to perform fellatio and engage in sexual
intercourse with him. He also forced Denise to tell their son to
watch. He allowed them to leave after the incident, and Denise

reported the incident the next day. Defendant moved to dismiss

the following indictment asserting that he came within a marital
exemption to both rape and sodomy. The People contended that
because the couple were living apart pursuant to the temporary
order of protection, they were not married for purposes of the
statute. The trial court dismissed the indictment. The appellate
court reversed and remanded, finding that the couple was not
married for purposes of the statute. The defendant was
convicted and appealed, asserting that both statutes are
unconstitutional.
Issue. Is defendant correct in his assertion that the marital rape
exemption in New Yorks rape and sodomy statutes renders
those statutes violative of the Equal Protection Clause?
Held. Based on Equal Protection analysis, the law must be that
any person who engages in sexual intercourse or deviate
sexual intercourse with any other person by forcible compulsion
is guilty of either rape or sodomy. The defendants conviction is
affirmed.
Under New York law a male is guilty of rape when he engages
in sexual intercourse with a female by forcible compulsion.
Female is defined as any female person not married to the
actor. Likewise, deviate sexual conduct in the New York sodomy
statute is limited to sexual conduct between persons not
married. Therefore, there is a marital exception for both forcible
rape and forcible sodomy. This marital exemption has certain
exemptions, in that a husband and wife are considered to be not
married if at the time of the assault they are living apart
pursuant to a court order or a separation agreement.
Regarding the marital exemption, the equal protection clause
does not prohibit a State from making classifications, provided
the statute does not arbitrarily burden a particular group of
individuals. When a statute draws a distinction based upon
marital status, the classification must be reasonable and must
be based upon some ground of difference that rationally
explains the different treatment. This Court finds no rational
basis for distinguishing between marital and nonmarital rape.
Rationales for such a distinction are based either upon archaic
notions about consent and property rights or are simply unable
to withstand even the slightest scrutiny. An argument based
upon supposed consent to such an act is irrational and absurd.
A married woman has the same right to control her own body as
does an unmarried woman. Other traditional justifications that a
woman was the property of her husband have long been
rejected by this State. More recent rationales include that the
exemption protects against governmental intrusion into marital
privacy and promotes reconciliation of the spouses, and thus,
elimination would be disruptive to marriages. There is no
rational relation between allowing a husband to forcibly rape his
wife and these interests. The right of privacy protects
consensual acts, not violent sexual assaults. In such cases it is
doubtful there is anything left to reconcile. Another rationale
advanced is that marital rape would be difficult to prove an
d could lead to fabricated complaints by vindictive wives. The
criminal justice system is presumed to be capable of handling

false complaints. The final argument is that marital rape is not

as serious an offense as other rape and can be thus dealt with
by other criminal statutes. There is no evidence to support such
a claim. Amongst recent decisions by other jurisdictions, only
one court has concluded that a rational basis exists for the
marital exemption. This Court holds that the exemption lacks a
rational basis, and therefore violates the equal protection
clauses of both the Federal and State Constitutions.
Regarding the exemption under the rape statute for females,
such an exemption must be substantially related to the
achievement of an important governmental objective. The
People first argue that the exemption is appropriate because
only females may become pregnant. However, there is no
evidence that preventing pregnancy is a primary purpose of the
statute. Rather it is intended to prevent unwanted forcible and
often violent sexual intrusion. The People also claim justification
is found because a female rape victim faces the probability of
medical, sociological, and psychological problems unique to her
gender. This argument is no more convincing than it was when
it was advanced in support of the discrimination in the statutory
rape laws. Finally, the People suggest a gender-neutral law for
forcible rape is unnecessary because it is either impossible
physiologically or an extremely rare case where a woman could
rape a man. This claim is based on an assertion that sexual
intercourse is only possible if the male is sexually aroused, and
if he is aroused he is consenting. However, sexual intercourse
occurs after penetration, however slight. Such penetration can
occur without arousal. As to the infrequency argument,
numerical disparity itself cannot make the gender discrimination
constitutional. This Court holds that the law violates equal
protection because it exempts females from criminal liability for
forcible rape. It is now the law of this State that any person who
engages in sexual intercourse or deviate sexual intercourse with
any other person by forcible compulsion is guilty of either rape
or sodomy. Because the statutes under which the defendant
was convicted are not being stuck down, his conviction is
affirmed.
Discussion. The Court finds both the marital exemption and the
female exemption to be unconstitutional under equal protection
analysis, but the defendants conviction is upheld.
CASE: Man appeals conviction for raping and sodomizing his
wife.
FACTS: Denise and Mario were separated by Family Court
order when he got her and their 2-and-a-half-year-old son in a
hotel room, forced her to perform fellatio on him and raped her
(all while making his wife tell their son to watch what his father
was making his mother do). He was indicted on chargesd of
rape in the first degree and sodomy; the trial court dismissed
the indictment on the "marital exception" to rape; the appellete
division reinstated the indictment and the defendant was
convicted of rape in the first degree and sodomy in the first
degree; the conviction was affirmed by the appellate division;
defendant appealled to the Court of Appeals.
DEFENDANT ARGUES:

1. The temporary order of protection from the Family Court

was not the type of order which enables a court to treat him
and his wife as "not married" because it did not mandate
that the two be separated, only that he remain away from
her.
2. Assuming that because of the Family Court order he is
treated just as any unmarried male would be, defendant
cannot be convicted of either rape in the first degree or
sodomy in the first degree because both statutes violate the
Equal Protection Clause by burdening only men and not
women. The statutes criminalizing both acts are
underinclusive classifications which burden the defendant
but not others similarly situated.
STATE ARGUES:
1. In 1978, the legislature expanded the definition of "not
married" to include those cases where the husband and
wife were living apart pursuant to a court order "which by its
terms or in its effect requires such living apart."
2. Traditional and modern justifications for the marital
exemption for rape:
a. A husband cannot be guilty of raping his wife because
she consented to sex when she married him. ("[T]he
husband cannot be guilty of a rape committed by
himself upon his wife, for by their mutual matrimonial
consent and contract the wife hath given up herself in
this kind unto her husband, which she cannot retract.").
b. ADVANCED BY THE STATE: A woman was the
property of her husband and the legal existence of the
woman was "incorporated and consolidated into" that of
the husband.
c. The marital exemption protects against governmental
intrusion into marital privacy and promotes reconcilation
of the spouses, thus, the elimination of the exemption
would be disruptive to the parties.
d. Marital rape would be a difficult crime to prove.
e. Marital rape is not as serious an offense as other rape
and is thus adequately dealt with by the possibility of
prosecution under criminal statutes, such as assault
statutes, which provide for less severe punishment.
3. The rape statute is properly written to protect females
because only females can become pregnant.
4. Discrimination in the rape laws is justified because a female
rape victim "faces the probability of medical, sociological,
and psychological problems unique to her gender."
5. A gender-neutral law for forcible rape is unnecessary, and
that therefore, the present law is constitutional because a
woman either cannot actually raoe a man or such attacks, if
possible, are extremely rare.
COURT SAYS: Conviction affirmed.
HOLDINGS:
1.
Appellate Division did not err in considering defendant
husband "not married" for the purposes of the New York
Penal Law rape statute where the man raped his wife while
they were living apart pursuant to a Family Court order.

2.

The marital exception under which men cannot be

convicted of raping their wives is a violation of the equal
protection clause because there is no rational basis for
distintuishing between marital rape and nonmarital rape.
3.
Statute exempting females from criminal liability for
forcible rape while holding men responsible violates the
equal protection clause of the Fourteenth Amendment.
RATIONALE:
Marital exemption:
o Where a staute draws a distinction based upon marital
status, the classification must be reasonable and must be
based upon "some ground fo difference that rationally
explains the different treatment". There is no rational basis
for distinguishing between marital rape and nonmarital rape.
o CONSENT AT MARRIAGE: Rape is not a sexual act to which
one party does not consent, but rather a violent and
degrading act which violates the bodily integrity of the victim;
a married woman has the same right to have control over her
body as does an unmarried woman.
o GOVERNMENT INTRUSION: The right of privacy protects
consensual acts, not violent sexual assaults; it is the act of
rape which disrupts the marriage, not the criminal prohibition
against it.
o DIFFICULT CRIME TO PROVE: All rapes are difficult to
prove, especially when the victim and the defendant know
one another; the criminal justice system is presumed to be
capable of handlingg any false complaints of "vindictive
wives."
o BETTER DEALT WITH UNDER ASSAULT STATUTES: Rape
is not merely an assault, but something much more; there is
no evidence to support the contention that marital rape has
less severe consequences than other rape.
Exemption for females:
o DISTINGUISH FROM STATUTORY RAPE: There is no
evidence that preventing pregnancies is a primary purpose
of the statute prohibiting rape (as is the case with statutory
rape). Thus, due to the different purposes behind forcible
rape laws and statutory rape laws, the cases upholding the
gender discrimination in the latter are not decisive with
respect to the former.
o The physiologically impossible argument is wrong:
penetration can be acheived even when the man is not
aroused and, therefore, without his consent.
o The fact that attacks of females on males or females on
females are rare makes them no more constitutional. The
only persons benefitting from these laws are females who
forcibly rape males.
o This case was decided on a wrong legal theorynegligent
infliction of emotional distress. Since this theory is not
recognized in the state of Texas, the lower court's ruling must
not stand.
o This court has broad discretion to remand for a new trial in
the interest of justice and when it appears that the facts
when developed at trial may support recovery on an

alternative theory.
TO NOTE: The court was able to have its cake and eat it too in
this case. Although it found the stautes under which the
defendant, an admittedly bad, bad man, was convicted and
imprisoned, it did not overturn his conviction and set him free or
remand for a new trial. Rather, it concluded that the Legislature
would prefer to eliminate the exemptions (marital, gender) and
preserve the statutes, an interesting bit of judicial legislation.
Because the statutes under which the defendant was convicted
were not, then, stuck down (only the bad parts), his conviction
could be affirmed. To reverse would have disastrous effects on
rapists in prison and those pending trial for rape, the Court
noted.
X. B. Fixing the Family Domicile Art. 69
Cases
PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F.
ESCAO, ET AL., defendants-appellees. I. V. Binamira & F. B.
Barria for plaintiff-appellant. Jalandoni & Jarnir for defendantsappellees.
REYES, J.B.L., J.: Direct appeal, on factual and legal
questions, from the judgment of the Court of First Instance of
Cebu, in its Civil Case No. R-4177, denying the claim of the
plaintiff-appellant, Pastor B. Tenchavez, for legal separation and
one million pesos in damages against his wife and parents-inlaw, the defendants-appellees, Vicente, Mamerto and Mena, 1 all
surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the
following:
Missing her late afternoon classes on 24 February 1948 in the
University of San Carlos, Cebu City, where she was then
enrolled as a second year student of commerce, Vicenta
Escao, 27 years of age (scion of a well-to-do and socially
prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez,
32 years of age, an engineer, ex-army officer and of
undistinguished stock, without the knowledge of her parents,
before a Catholic chaplain, Lt. Moises Lavares, in the house of
one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered
with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage,
indicate that the couple were deeply in love. Together with a
friend, Pacita Noel, their matchmaker and go-between, they had
planned out their marital future whereby Pacita would be the
governess of their first-born; they started saving money in a
piggy bank. A few weeks before their secret marriage, their
engagement was broken; Vicenta returned the engagement ring
and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This
time they planned to get married and then elope. To facilitate
the elopement, Vicenta had brought some of her clothes to the

room of Pacita Noel in St. Mary's Hall, which was their usual
trysting place.
Although planned for the midnight following their marriage, the
elopement did not, however, materialize because when Vicente
went back to her classes after the marriage, her mother, who
got wind of the intended nuptials, was already waiting for her at
the college. Vicenta was taken home where she admitted that
she had already married Pastor. Mamerto and Mena Escao
were surprised, because Pastor never asked for the hand of
Vicente, and were disgusted because of the great scandal that
the clandestine marriage would provoke (t.s.n., vol. III, pp. 110506). The following morning, the Escao spouses sought priestly
advice. Father Reynes suggested a recelebration to validate
what he believed to be an invalid marriage, from the standpoint
of the Church, due to the lack of authority from the Archbishop
or the parish priest for the officiating chaplain to celebrate the
marriage. The recelebration did not take place, because on 26
February 1948 Mamerto Escao was handed by a maid, whose
name he claims he does not remember, a letter purportedly
coming from San Carlos college students and disclosing an
amorous relationship between Pastor Tenchavez and Pacita
Noel; Vicenta translated the letter to her father, and thereafter
would not agree to a new marriage. Vicenta and Pastor met that
day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his job
in Manila. Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husband's welfare, was not as endearing as her
previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable
disposition, and Pastor knew it. She fondly accepted her being
called a "jellyfish." She was not prevented by her parents from
communicating with Pastor (Exh. "1-Escao"), but her letters
became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escao"). Vicenta
had gone to Jimenez, Misamis Occidental, to escape from the
scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator
Emmanuel Pelaez, to annul her marriage. She did not sign the
petition (Exh. "B-5"). The case was dismissed without prejudice
because of her non-appearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied
for a passport, indicating in her application that she was single,
that her purpose was to study, and she was domiciled in Cebu
City, and that she intended to return after two years. The
application was approved, and she left for the United States. On
22 August 1950, she filed a verified complaint for divorce
against the herein plaintiff in the Second Judicial District Court
of the State of Nevada in and for the County of Washoe, on the
ground of "extreme cruelty, entirely mental in character." On 21
October 1950, a decree of divorce, "final and absolute", was
issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the
Archbishop of Cebu to annul their daughter's marriage to Pastor

(Exh. "D"). On 10 September 1954, Vicenta sought papal

dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell
Leo Moran, in Nevada. She now lives with him in California,
and, by him, has begotten children. She acquired American
citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at
bar by a complaint in the Court of First Instance of Cebu, and
amended on 31 May 1956, against Vicenta F. Escao, her
parents, Mamerto and Mena Escao, whom he charged with
having dissuaded and discouraged Vicenta from joining her
husband, and alienating her affections, and against the Roman
Catholic Church, for having, through its Diocesan Tribunal,
decreed the annulment of the marriage, and asked for legal
separation and one million pesos in damages. Vicenta claimed
a valid divorce from plaintiff and an equally valid marriage to her
present husband, Russell Leo Moran; while her parents denied
that they had in any way influenced their daughter's acts, and
counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but
freed the plaintiff from supporting his wife and to acquire
property to the exclusion of his wife. It allowed the counterclaim
of Mamerto Escao and Mena Escao for moral and exemplary
damages and attorney's fees against the plaintiff-appellant, to
the extent of P45,000.00, and plaintiff resorted directly to this
Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant
Vicenta F. Escao liable for damages and in dismissing the
complaint;.
2. In not holding the defendant parents Mamerto Escano and
the heirs of Doa Mena Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the
damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought
by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor
Tenchavez, and the defendant-appellee, Vicenta Escao, were
validly married to each other, from the standpoint of our civil law,
is clearly established by the record before us. Both parties were
then above the age of majority, and otherwise qualified; and
both consented to the marriage, which was performed by a
Catholic priest (army chaplain Lavares) in the presence of
competent witnesses. It is nowhere shown that said priest was
not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from
the parish priest and the Ordinary, as required by Canon law, is
irrelevant in our civil law, not only because of the separation of
Church and State but also because Act 3613 of the Philippine
Legislature (which was the marriage law in force at the time)
expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage
are the legal capacity of the contracting parties and consent.
(Emphasis supplied)

The actual authority of the solemnizing officer was thus only a

formal requirement, and, therefore, not essential to give the
marriage civil effects,3 and this is emphasized by section 27 of
said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No
marriage shall be declared invalid
because of the absence of one or several of the formal
requirements of this Act if, when it was performed, the spouses
or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and
that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the
validity of their marriage) will be presumed until the contrary is
positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco
vs. Jason, 60 Phil. 442, 448). It is well to note here that in the
case at bar, doubts as to the authority of the solemnizing priest
arose only after the marriage, when Vicenta's parents consulted
Father Reynes and the archbishop of Cebu. Moreover, the very
act of Vicenta in abandoning her original action for annulment
and subsequently suing for divorce implies an admission that
her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the
marriage she was under the undue influence of Pacita Noel,
whom she charges to have been in conspiracy with appellant
Tenchavez. Even granting, for argument's sake, the truth of that
contention, and assuming that Vicenta's consent was vitiated by
fraud and undue influence, such vices did not render her
marriage ab initio void, but merely voidable, and the marriage
remained valid until annulled by a competent civil court. This
was never done, and admittedly, Vicenta's suit for annulment in
the Court of First Instance of Misamis was dismissed for nonprosecution.
It is equally clear from the record that the valid marriage
between Pastor Tenchavez and Vicenta Escao remained
subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the wife
sought and obtained on 21 October 1950 from the Second
Judicial District Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in character." At the
time the divorce decree was issued, Vicenta Escao, like her
husband, was still a Filipino citizen. 4 She was then subject to
Philippine law, and Article 15 of the Civil Code of the Philippines
(Rep. Act No. 386), already in force at the time, expressly
provided:
Laws relating to family rights and duties or to the status,
condition and legal capacity of persons are binding upon the
citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit
absolute divorce, quo ad vinculo matrimonii; and in fact does
not even use that term, to further emphasize its restrictive policy
on the matter, in contrast to the preceding legislation that
admitted absolute divorce on grounds of adultery of the wife or
concubinage of the husband (Act 2710). Instead of divorce, the
present Civil Code only provides for legal separation (Title IV,

Book 1, Arts. 97 to 108), and, even in that case, it expressly

prescribes that "the marriage bonds shall not be severed" (Art.
106, subpar. 1). For the Philippine courts to recognize and give
recognition or effect to a foreign decree of absolute divorce
betiveen Filipino citizens could be a patent violation of the
declared public policy of the state, specially in view of the third
paragraph of Article 17 of the Civil Code that prescribes the
following:
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, policy and good
customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon
in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such
foreign divorce decrees would, in effect, give rise to an irritating
and scandalous discrimination in favor of wealthy citizens, to the
detriment of those members of our polity whose means do not
permit them to sojourn abroad and obtain absolute divorces
outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor
Tenchavez should have appeared in the Nevada divorce court.
Primarily because the policy of our law cannot be nullified by
acts of private parties (Civil Code,Art. 17, jam quot.); and
additionally, because the mere appearance of a non-resident
consort cannot confer jurisdiction where the court originally had
none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a
necessary consequence that in this jurisdiction Vicenta
Escao's divorce and second marriage are not entitled to
recognition as valid; for her previous union to plaintiff Tenchavez
must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her
denial of consortium and her desertion of her husband
constitute in law a wrong caused through her fault, for which the
husband is entitled to the corresponding indemnity (Civil Code,
Art. 2176). Neither an unsubstantiated charge of deceit nor an
anonymous letter charging immorality against the husband
constitute, contrary to her claim, adequate excuse. Wherefore,
her marriage and cohabitation with Russell Leo Moran is
technically "intercourse with a person not her husband" from the
standpoint of Philippine Law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on
the basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a
marriage after an invalid divorce are in accord with the previous
doctrines and rulings of this court on the subject, particularly
those that were rendered under our laws prior to the approval of
the absolute divorce act (Act 2710 of the Philippine Legislature).
As a matter of legal history, our statutes did not recognize
divorces a vinculo before 1917, when Act 2710 became
effective; and the present Civil Code of the Philippines, in
disregarding absolute divorces, in effect merely reverted to the
policies on the subject prevailing before Act 2710. The rulings,
therefore, under the Civil Code of 1889, prior to the Act above-

mentioned, are now, fully applicable. Of these, the decision

in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said
this Court in that case:
As the divorce granted by the French Court must be ignored, it
results that the marriage of Dr. Mory and Leona Castro,
celebrated in London in 1905, could not legalize their relations;
and the circumstance that they afterwards passed for husband
and wife in Switzerland until her death is wholly without legal
significance. The claims of the very children to participate in the
estate of Samuel Bishop must therefore be rejected. The right to
inherit is limited to legitimate, legitimated and acknowledged
natural children. The children of adulterous relations are wholly
excluded. The word "descendants" as used in Article 941 of the
Civil Code cannot be interpreted to include illegitimates born
of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children,
begotten from Vicenta's marriage to Leo Moran after the invalid
divorce, are not involved in the case at bar, the Gmur case is
authority for the proposition that such union is adulterous in this
jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first
marriage, that stands undissolved in Philippine law. In not so
declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations
where the status of a person (whether divorced or not) would
depend on the territory where the question arises. Anomalies of
this kind are not new in the Philippines, and the answer to them
was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine
Islands are well known to the members of the Legislature. It is
the duty of the Courts to enforce the laws of divorce as written
by Legislature if they are constitutional. Courts have no right to
say that such laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents,
Dr. Mamerto Escao and his wife, the late Doa Mena Escao,
alienated the affections of their daughter and influenced her
conduct toward her husband are not supported by credible
evidence. The testimony of Pastor Tenchavez about the
Escao's animosity toward him strikes us to be merely
conjecture and exaggeration, and are belied by Pastor's own
letters written before this suit was begun (Exh. "2-Escao" and
"Vicenta," Rec. on App., pp. 270-274). In these letters he
expressly apologized to the defendants for "misjudging them"
and for the "great unhappiness" caused by his "impulsive
blunders" and "sinful pride," "effrontery and audacity" [sic].
Plaintiff was admitted to the Escao house to visit and court
Vicenta, and the record shows nothing to prove that he would
not have been accepted to marry Vicente had he openly asked
for her hand, as good manners and breeding demanded. Even
after learning of the clandestine marriage, and despite their
shock at such unexpected event, the parents of Vicenta
proposed and arranged that the marriage be recelebrated in
strict conformity with the canons of their religion upon advice

that the previous one was canonically defective. If no

recelebration of the marriage ceremony was had it was not due
to defendants Mamerto Escao and his wife, but to the refusal
of Vicenta to proceed with it. That the spouses Escao did not
seek to compel or induce their daughter to assent to the
recelebration but respected her decision, or that they abided by
her resolve, does not constitute in law an alienation of
affections. Neither does the fact that Vicenta's parents sent her
money while she was in the United States; for it was natural that
they should not wish their daughter to live in penury even if they
did not concur in her decision to divorce Tenchavez (27 Am. Jur.
130-132).
There is no evidence that the parents of Vicenta, out of
improper motives, aided and abetted her original suit for
annulment, or her subsequent divorce; she appears to have
acted independently, and being of age, she was entitled to
judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged
with alienation of affections in the absence of malice or
unworthy motives, which have not been shown, good faith being
always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law
distinguishes between the right of a parent to interest himself in
the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such
distinction between the liability of parents and that of strangers
is only in regard to what will justify interference. A parent isliable
for alienation of affections resulting from his own malicious
conduct, as where he wrongfully entices his son or daughter to
leave his or her spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy motives. He
is not liable where he acts and advises his child in good faith
with respect to his child's marital relations in the interest of his
child as he sees it, the marriage of his child not terminating his
right and liberty to interest himself in, and be extremely
solicitous for, his child's welfare and happiness, even where his
conduct and advice suggest or result in the separation of the
spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or
interference are indiscreet or unfortunate, although it has been
held that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home
and afford him or her protection and support, so long as he has
not maliciously enticed his child away, or does not maliciously
entice or cause him or her to stay away, from his or her spouse.
This rule has more frequently been applied in the case of advice
given to a married daughter, but it is equally applicable in the
case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents
with racial or social discrimination and with having exerted
efforts and pressured her to seek annulment and divorce,
unquestionably caused them unrest and anxiety, entitling them
to recover damages. While this suit may not have been impelled
by actual malice, the charges were certainly reckless in the face

of the proven facts and circumstances. Court actions are not

established for parties to give vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by
appellant Pastor Tenchavez from defendant Vicente Escao, it
is proper to take into account, against his patently unreasonable
claim for a million pesos in damages, that (a) the marriage was
celebrated in secret, and its failure was not characterized by
publicity or undue humiliation on appellant's part; (b) that the
parties never lived together; and (c) that there is evidence that
appellant had originally agreed to the annulment of the
marriage, although such a promise was legally invalid, being
against public policy (cf. Art. 88, Civ. Code). While appellant is
unable to remarry under our law, this fact is a consequence of
the indissoluble character of the union that appellant entered
into voluntarily and with open eyes rather than of her divorce
and her second marriage. All told, we are of the opinion that
appellant should recover P25,000 only by way of moral
damages and attorney's fees.
With regard to the P45,000 damages awarded to the
defendants, Dr. Mamerto Escao and Mena Escao, by the
court below, we opine that the same are excessive. While the
filing of this unfounded suit must have wounded said
defendants' feelings and caused them anxiety, the same could
in no way have seriously injured their reputation, or otherwise
prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been
correctly established in the decision of the court below, is that
said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the
damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and
decreed after the effectivity of the present Civil Code (Rep. Act
386), is not entitled to recognition as valid in this jurisdiction;
and neither is the marriage contracted with another party by the
divorced consort, subsequently to the foreign decree of divorce,
entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation
with a person other than the lawful husband entitle the latter to a
decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree
by one consort entitles the other to recover damages;
(4) That an action for alienation of affections against the parents
of one consort does not lie in the absence of proof of malice or
unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as
follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a
decree of legal separation from defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay
plaintiff-appellant Tenchavez the amount of P25,000 for
damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee,

Mamerto Escao and the estate of his wife, the deceased Mena
Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs. Bengzon, C.J., Bautista Angelo,
Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.
Facts: Vicenta Escao and Pastor Tenchavez secretly got
married before a Catholic chaplain and planned to elope.The
elopement did not materialize because Vicentas mother
discovered such marriage. Her parents asked the advice of one
Father Reynes and subsequently agreed to recelebrate the
marriage. However, Vicenta refused to proceed with the
ceremony because a letter from the students of san Carlos
College disclosed that Pastor and their matchmaker, Pacita
Noel had an amorous relationship. Vicenta left for the States,
acquired a foreign divorce and married an American, Russel
Leo Moran in Nevada. She sought for a divorce from Tenchavez
in 1950 and sought ecclesiastical release from her marriage to
Tenchavez in 1954. Escano claims that state recognition should
be accorded the Church's disavowal of her marriage with
Tenchavez.. Escano argued that her second marriage deserves
the laws recognition and protection over the other.es the laws
recognition and protection over the other since it fits concept of
a marriage as a social institution because publicly contracted,
recognized by both civil and ecclesiastical authorities, and
blessed by three children. She also contends that the court has
no
jurisdiction
over
her.
Husband
filed
complaint:
Vs. Parents: for having dissuaded and discouraged Vicenta
from joining her husband and alienating her affections
Vs. Roman Catholic Church: for having decreed annulment
Parents filed counterclaim for moral and exemplary damages.
Issues: 1) WON marriage between Tenchavez and Escano still
subsists
in
lieu
of
the
divorce
2) WON there is an action for alienation of affections against
parents
Held:
NO
Ratio:
1.
no
proof
of
malice
2. parents themselves suggested that the marriage be
celebrated
again
3. also, Vicenta appeared to have acted independently and
being of age, she was entitled to 4. judge what was best for her
and
ask
that
her
decisions
be
respected
THERE WAS A VALID MARRIAGE between Vicenta and
Tenchaves:
With regard to jurisdiction over Escano, the court states that
when against the non-resident defendant affects the personal
status of the plaintiff, as, for instance, an action for separation or
for annulment of marriage, ..., Philippine courts may validly try
and decide the case, because, then, they have jurisdiction over
the matter , and in that event their jurisdiction over the person of
the non-resident defendant is not essential. The point is the
personal status of the plaintiff domiciled in the Philippines.

Divorce, although successfully obtained in another country,

cannot be applied in the Philippines since it is contrary to public
policy. The principle is well-established, in private international
law, that foreign decrees cannot be enforced or recognized if
they contravene public policy. Furthermore, Vicentas refusal to
perform her wifely duties, and her denial of consortium and her
desertion of husband constitute in law a wrong caused through
her fault, for which the husband is entitled to damages (2176).
When, however, the action against the non-resident defendant
affects the personal status of the plaintiff, as, for instance, an
action for separation or for annulment of marriage, ..., Philippine
courts may validly try and decide the case, because, then, they
have jurisdiction over the res, and in that event their jurisdiction
over the person of the non-resident defendant is not essential.
The res is the personal status of the plaintiff domiciled in the
Philippines, 45,000 damages awarded to parents deemed
excessive: filing of suit nay have wounded their feelings and
caused anxiety but this has not seriously injured their reputation
or otherwise prejudiced them, lawsuits having become a
common occurrence in present society.
AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant, vs.
RAFAEL VILLANUEVA,
defendant-appellee. Harvey and O'Brien for appellant. Jose G.
Generoso for appellee.
STREET, J.: This action was instituted on May 27, 1927, in the
Court of First Instance of the City of Manila by Aurelia Dadivas
de Villanueva against her husband, Rafael Villanueva, for the
purpose of obtaining separate maintenance and custody of the
two younger minor children, Guillermo and Sergio Villanueva,
as well as a proper allowance for professional legal services
rendered by the plaintiff's attorneys in this action, as well as
costs. Upon hearing the cause the trial court absolved the
defendant from the complaint and abrogated a prior order of the
court for maintenance pendente lite, with costs against the
plaintiff. From this judgment the plaintiff appealed.
The plaintiff, Aurelia Dadivas de Villanueva, was married to the
defendant, Rafael Villanueva, on July 16, 1905, in the City of
Manila, where the pair have since resided. To them have been
born three children, namely, Antonio, Guillermo, and Sergio,
who were, at the time of the trial of this case in the lower court,
aged respectively 18, 10 and 9 years. The grounds on which
separate maintenance is sought infidelity and cruelty. With
respect to the first of these charges the proof shows that during
the period of about ten years prior to the institution of the action,
the defendant was guilty of repeated acts of infidelity with four
different women, and even after the action was begun, he is
shown to have had illicit relations with still another, an incident
which is incorporated in the case by means of the amended
complaint. Thought at all times protesting against these
irregularities in her husband's conduct, the plaintiff appears to
have exhibited forbearance; and she long continued in marital
relations with him with a view to keeping the family intact as well
as with hope of retrieving him from his erring course. In the end,

however, the incorrigible nature of the defendant in his relations

with other women, coupled with a lack of consideration and
even brutality towards the plaintiff, caused her to withdraw from
the domestic hearth and to establish a separate abode for
herself and two younger children. This final separation occurred
on April 20, 1927, about one month before the present action
was begun.
The proof with respect to the charge of cruelty shows that the
defendant has not infrequently treated the plaintiff roughly and
that he has at times directed abusive words to her and
challenged her to carry her troubles into court. The proof in
support of this charge does not in our opinion establish a case
for separate maintenance, without relation to the graver charge
of conjugal infidelity; and if the case depended, for its solution,
upon cruelty alone, the case could doubtless be affirmed, in
conformity with the doctrine stated in Arroyo vs. Vazquez de
Arroyo (42 Phil. 54), where the charges of cruelty were found to
be unproved or insufficient. In that case, however, we were able
to record the fact that neither of the spouses had at any time
been guilty of conjugal infidelity, and that neither had, so far as
the proof showed, even given just cause to the other to suspect
illicit relations with any person. In the case before us repeated
acts of conjugal infidelity on the part of the husband are proved,
and he appears to be a recurrent, if not an incurable offender
against the sanctity of the marriage tie. This give the wife an
undeniable right to relief.
The law is not so unreasonable as to require a wife to live in
marital relations with a husband whose incurable propensity
towards other women makes common habitation with him
unbearable. Deeply rooted instincts of human nature sanction
the separation in such case, and the law is not so unreasonable
as to require as acquiescence on the part of the injured party
which is beyond the capacity of nature. In order to entitle a wife
to maintain a separate home and to require separate
maintenance from her husband it is not necessary that the
husband should bring a concubine into the marital domicile.
Perverse and illicit relations with women outside of the marital
establishment are enough. As was said by Justice Moreland in
Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband
cannot, by his own wrongful acts, relieve himself from the duty
to support his wife imposed by law; and where a husband by
wrongful, illegal, and unbearable conduct, drives his wife from
the domicile fixed by him, he cannot take advantage of her
departure to abrogate the law applicable to the marital relations
and repudiate his duties thereunder.
In her complaint the plaintiff asks for an allowance of P750 per
month, but we are of the opinion that the sum of P500 per
month will suffice, this being in addition to the use which she
makes for living quarters of a modest property belonging to the
conjugal estate. During their marital life the spouses have
acquired real estate which, at the time of the trial, was assessed
at more than P85,000, and which at the same time was
reasonably valued at more than P125,000. In addition to this the
defendant appears to be now earning a substantial salary in

commercial activities. The plaintiff is also entitled to an

allowance for attorney's fees which we fix at P1,000 for services
rendered in the trial court and the same amount for services
rendered in this court. It appears that the two younger children
are now living with the plaintiff, and her right to their custody will
not be disturbed. While this litigation was pending in the lower
court the defendant was required to pay the amount of P500 per
month for maintenance of the plaintiff, under an interlocutory
order of June 15, 1927. But these payments ceased when the
appealed decision was promulgated on or about the end of
March, 1928. The plaintiff in this case is therefore entitled to
judgment at the rate of P500 per month beginning April 1, 1928,
until judgment shall be promulgated in this case, and from that
date the defendant will be required to pay P500 per month for
maintenance as already suggested. The plaintiff will also be
awarded the sum of P720 in satisfaction of the amount paid out
for the transcript necessary to this appeal.
The judgment is therefore reversed, and it is ordered that the
plaintiff have and recover of the defendant the sum of P2,000
for attorney's fees, the sum of P720 for expenses of procuring
transcript, and the sum of P500 per month, beginning April 1,
1928, until the promulgation of this decision, after which the
date the defendant is ordered to pay to the plaintiff by way of
maintenance, on or before the 10th day of each month, the sum
of P500. So ordered, with costs against appellee.
Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Nature of the Case: The case at bar is an appeal from a
judgement of the Court of First Instance of Manila
Plaintiff filed a case against the Defendant on May 27, 1927for
the purpose of obtaining separate maintenance and custody of
twoyounger minor children. As well as a proper allowance for
professional
legal services rendered by the Plaintiffs attorney.
Upon hearing the cause the trial court absolved thedefendant
from the complaint and abrogated a prior order of the courtfor
maintenance pendent lite, with costs against the plaintiff. From
this judgment, the plaintiff appealed.
FACTS:
1. July 16, 1905- Plaintiff and Defendant were married.2. Manila
- place of marriage and residence of the couple.3. Children: Ant
onio- 18 yrs.Guillermo- 10 yrs., minorSergio- 9 yrs.,
minor4. Infidelity
and crueltygrounds on
which
separatemaintenance is sought5. Proof of infidelity-ten years
prior to the institution of the action, thedefendant was guilty of
repeated
acts
of
infidelity
with
fourdifferent
women.6. Incorrigible nature of the defendant in
relations with otherwomen and brutality towards the plaintiff
caused theplaintiff to establish a separate abode for herself and
twominor children.7. April 20, 1927-occurrence of final
separation of wife (plaintiff) andhusband (defendant).-the month
before the plaintiff filed an appeal to obtainseparate
maintenance.8. Proof to the charge of cruelty-does not establish
a case for separate maintenance-unproved and insufficient9.
Repeated acts of conjugal infidelity (by the husband/defendant)-

proved-recurrent-gives wife (plaintiff) an undeniable right

to relief
ISSUE: Whether the wife has an undeniable right to relief
HELD: The decision/judgment of the lower court was reversed
in favor of the wife/plaintiff and against the p. 2,000 for
attorneys fees, Php. 720 for expenses husband/defendant. It
was ordered that the plaintiff have and recover of the defendant
the sum of Ph of procuring transcript and Php. 500 per month,
beginning April 1, 1928.The defendant was ordered to pay the
plaintiff byway of maintenance on or before the 10 th day of each
month, the sum of Php. 500.
RATIONALE: In order to entitle a wife to maintain a separate
home and to require separate maintenance from her husband,
it is not necessary that the husband should bring a concubine
into the marital domicile. Repeated illicit relations with women
outside of the marital establishment are enough. The law is not
so unreasonable as to require a wife to live in marital relations
with a husband whose propensity towards other women makes
common habitation with him unbearable.
CIPRIANA GARCIA, plaintiff-appellant,
vs. ISABELO
SANTIAGO and ALEJO SANTIAGO,
defendants-appellees. Gregorio Perfecto for appellant. M. H.
de Joya and Pompeyo Diaz for appellees.
OSTRAND, J.: This is an appeal but the plaintiff from a
judgment of the Court of First Instance of Nueva Ecija
dismissing the complaint.
In her complaint the plaintiff alleges that she was married to the
defendant Isabelo Santiago on April 8, 1910, and that from that
date they lived together as husband and wife, until continued
family dissentions compelled her to leave the conjugal dwelling
on February 3, 1925; that defendant Alejo Santiago is a son of
Isabelo Santiago by his first wife, and Prisca Aurelio is a
daughter of plaintiff by her first husband; that said Alejo
Santiago seduced Prisca Aurelio, and the latter gave birth to a
child; and that the other defendant Isabelo Santiago, instead of
seeing to the vindication of the honor of plaintiff's daughter by
requiring his son to marry her, has refused to have anything to
do with the matter, thus seemingly countenancing the illicit
relations between them; that with a view to favoring materially
the said Alejo Santiago and fostering his whims and caprices,
defendant Isabelo Santiago has been conveying, and is
attempting to convey, to said Alejo Santiago property belonging
to their conjugal partnership, to the damage and prejudice of
plaintiff's rights; that, among the property that defendant has
conveyed or is attempting to convey Alejo Santiago, the lands
specially described in the complaint are the most important
ones, which, with others, had been acquired by plaintiff and
defendant Isabelo Santiago during their married life with money
belonging to the conjugal partnership, and with the products and
fruits of the property of the conjugal partnership, or through the
industry of the two; that said property produces annually around
the neighborhood of 4,500 cavanes of palay at P4 per cavan;
that by reason of the attitude of defendant Isabelo Santiago,

respecting the illicit relations of his son and Prisca Aurelio, and
his fraudulent acts conveying to said Alejo Santiago property
belonging to the conjugal partnership, plaintiff and Isabelo
Santiago have been several discussions and quarrels, which
culminated in their separation of February 3, 1925, which
separation became necessary in order to avoid personal
violence; that notwithstanding plaintiff's repeated demands,
defendants Isabelo Santiago has continually refused to provide
for her support, and plaintiff could not live in their conjugal
dwelling, because of illicit relations between Alejo Santiago and
Prisca Aurelio, countenance by the other defendant Isabelo
Santiago; that taking into consideration the actual financial
conditions of the conjugal partnership, plaintiff is entitled to a
monthly pension P500 pendente lite; and that in the meanwhile,
the court should restrain defendant Isabelo Santiago from
conveying of attempting to convey any property of the conjugal
partnership; that defendant Isabelo has publicly maintained illicit
relations with a woman by the name of Geronima Yap; and that
by said immoral conduct and acts, defendant Isabelo Santiago
has shown himself unfit to administer the property of the
conjugal partnership, and the court should therefore order that
its administration be placed in the hands of plaintiff. The
defendants' answer to the complaint was a general denial.
The appellant makes the following assignments of error:
(1) The court erred in declaring her separation from the
defendant Isabelo Santiago unjustified.
(2) The court erred in dissolving the preliminary injunction and
refusing to set aside the transfer of title made by Isabelo
Santiago in favor of Alejo Santiago.
(3) The court erred in not granting the plaintiff the right to
administer the conjugal property.
(4) The court erred in not granting the plaintiff the right to
administer the conjugal property.
(5) The court erred in not granting the other remedies prayed for
in the complaint.
The second and fourth assignments of error are entirely without
merit. The plaintiff has failed to prove that the property
conveyed to Alejo Santiago is community property; on the
contrary, it is shown by documentary evidence that the land was
acquitted by Isabelo Santiago previously to his marriage to the
plaintiff. Neither can we find any sufficient reason for depriving
the husband of his right to administer such conjugal property as
may exist.1awphi1.net
The first and third assignments of error deserved some
consideration. It clearly appears that the spouses led a rather
stormy life subsequent to the dishonor of the plaintiff's daughter,
Prisca, and that husband, according to the plaintiff's testimony,
went so far as to order her to leave his house and threatened to
illtreat her if she returned. It also appears that, aside from the
quarrels, she had very unpleasant experiences in other
respects. Her young daughter was, and still, under her care,
and her assertion that her husband's son was the cause of her
daughter's pregnancy is probably not unfounded. It requires no
stretch of the imagination to conclude that to keep the two

young people under the same roof with the opportunity to

continue their illicit relations would create a very embarrassing
situation for the girl's mother.
Taking into consideration the facts stated, we do not think that
the plaintiffs' separation from the husband in unjustified.
Ordinarily, it is not the fault of one that two quarrel, and in all
probability, the plaintiff is not free from blame, but she was
virtually driven out of their home by her husband and threatened
with violence if she should return. Under these circumstances,
to compel the plaintiff to cohabit with her husband can only lead
to further quarrels and would probably be unfortunate for both
parties. The separation therefore seems necessary.
As to the plaintiff's maintenance allowance it is the evident that
the sum of P500 monthly is much too large and that an
allowance of P50 per month is all that ought be granted at
present.
The fifth assignment of error relates principally to the plaintiff's
prayer for an allowance of attorney's fees. Under the
circumstances of the case, we do not think that the court below
erred in refusing to grant such allowance.
The judgment appealed from is therefore modified, and it is
ordered that the defendant, Isabelo Santiago, pay to the plaintiff
the sum of P50 per month for her maintenance and that such
payments be made within the first ten days of each month. No
costs will be allowed. So ordered.
Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real,
JJ., concur.
NATURE OF THE CASE:
The case at bar is an APPEAL from a judgment of the Court
of First Instance of Nueva Ecija.
This is an appeal by the plaintiff from a judgment of the Court of
First Instance of Nueva Ecija dismissing the complaint.
FACTS:
1. April 8, 1910- alleged date of marriage between the plaintiff,
Cipriana Garcia and the defendant, Isabelo Santiago.
2. February 3,
1925- the
date when
the
plaintiff was compelled to leave her conjugal dwelling due to
continued family dissensions.
3. Alejo Santiago (Defendant No. 2)-Son of Isabelo Santiago
(Defendant No. 1)-allegedly seduced Prisca Aurelio
4. Prisca Aurelio
daughter of Cipriana Garcia (the Plaintiff)- gave birth to a
child that was allegedly Alejo Santiagos child
5. Isabelo Santiago-failed to see the vindication of the honor of
Prisca Aurelio, the plaintiffs daughter by requiring his son
to marry her.
- refused to get involved with the matter, thus seemingly
countenancing the illicit relations between his son and the
plaintiffs daughter
-has allegedly conveyed/been conveying their conjugal
properties to Alejo to foster latters whims & caprices and thus,
damaging & prejudicing her rights. Some of these properties
include lands acquired during the plaintiffs and the defendants
marriage with money belonging to the conjugal partnership.-

publicly maintained illicit relationship with Geronima Yap

6. February 3, 1925-separation of the plaintiff and defendant.the separation was necessary to avoid personal violence
7. Isabelo Santiago- continually refused to provide for the
plaintiffs support
8. Cipriana Garcia (the plaintiff)-could not live in their conjugal
dwelling because of the illicit relationship between her daughter,
Prisca Aurelio and Alejo Santiago, countenanced by the other
defendant, Isabelo Santiago.-demanded that she is entitled to
P500.00
pendente
lite
monthly
pension
from
conjugal partnership-claimed that her husband, Isabelo
Santiago (Defendant No. 1)has shown himself unfit to
administer the property of conjugal partnership and the court
should therefore order its administration to be placed in
her hands.
ISSUE/RATIONALE:
1. Whether their separation is unjustified. NO. They were having
a stormy life prior to the separation due to the frequent fights.
Isabelo ordered her to leave the house &threatened to illtreat her if she returned. Priscas situation is embarrassing for
her mother. Highly possible that Alejo caused Priscas
pregnancy. Compelling them to cohabit could lead to further
quarrels.
2. Whether transfers of property from Isabelo to Alejo
are illegall.NO. Failed to prove that property was community
property. Documentary evidence even show that it was acquired
by Isabelo before their marriage.
3.Whether Cipriana is entitled to P500.00 monthly maintenance
NO. Thats too much. P50.00 would be enough.
4. Whether Isabelo is unfit to administer their conjugal property
NO. No sufficient reason found to deprive him of this right.
5. Whether Cipriana is entitled to an allowance of attorneys
fees. NO.
HELD: That the judgment appealed from is therefore modified.
Separation is allowed. Isabelo is ordered to provide Cipriana
with a P50.00monthly allowance to be paid within the first 10
days of the month. No costs allowed.
PILAR ATILANO, plaintiff-appellee, vs. CHUA CHING
BENG, defendant-appellant.
Quisumbing, Sycip & Associates for appellant. Jose G. Bermas,
Jr. for appellee.
FELIX, J.: The facts of this case as appearing on record and in
the stipulation submitted by the parties and approved by the
lower court, are as follows:
Chua Ching Beng and Pilar Atilano were joined in lawful
wedlock in Zamboanga City in May of 1951, after which
marriage, the couple sailed for Manila and established their
residence with the parents of the husband. In October of the
same year, at the husband's initiative, they went to Zamboanga
City to pay the parents of the wife a visit, and it seems that he
was prevailed upon by the wife's parents to return to Manila
leaving her behind, with the understanding that she would follow
him later, which apparently she failed to do.

On September 30, 1953, Pilar Atilano filed with the Court of First
Instance of Zamboanga a complaint for support against her
husband, alleging that they had been estranged and living
separately since October, 1952, by reason of incessant marital
bickerings and quarrels brought about by incompatibility of
temperament and above all, by defendant's inability to provide
for themselves a home separate from the latter's parents; that
she was staying with her parents in Zamboanga City, without
employment nor had she any property of her own. She
therefore, prayed that as defendant was under legal obligation
to support her, he be ordered to give her a monthly allowance,
P200.00 from the date of the filing of the complaint.
Defendant husband filed his answer contending that when they
were still residing in Manila, their married life was characterized
by harmony and understanding; that when they visited plaintiffs
parents in Zamboanga in October 1952, he was prevailed upon
by the latter to allow his wife to stay with them a while with the
understanding that she would follow him later to Manila; that
through insidious machinations, plaintiff's parents caused her to
be alienated from him resulting in her refusal to return to Manila
and live with her husband again; that defendant went back to
Zamboanga City to fetch her, but through force and intimidation
she was prevented by her parents from going with him; and that
her parents also exerted undue pressure and influence upon his
wife to file the complaint. Defendant further averred that while
he was not evading his obligation to support his, he preferred to
fulfill said duty by receiving and maintaining her in Manila; that
as the husband, defendant had the right to fix the residence of
his family, and he would even be willing to establish a conjugal
dwelling in Manila separate from that of his parents if that was
the plaintiff's desire. Thus, it was prayed that the complaint be
dismissed.
In the meantime, plaintiff filed a petition for alimony pendente
lite premised on the same facts as, stated in her complaint,
which was duly opposed by the defendant, and on May 3, 1954,
based on stipulation of facts agreed upon by the parties, the
court rendered judgment granting the wife a monthly allowance
of P75 after finding that the wife's refusal to return to Manila was
caused by her aversion to stay with the parents of her husband
after she had experienced some previous in-law troubles; that
her demand that they establish their home in Zamboanga could
not be met by the husband because of the latter's job in Manila
and due also to the husband's fear that his wife would always
be under the influence and pressure of the latter's parents. No
evidence was, however, adduced to support her allegation of
incompatibility of temperament and marital quarrels, and upon
receipt of the decision, defendant filed a petition electing to fulfill
his; obligation as thus fixed by the trial court by receiving and
maintaining plaintiff at his residence at Pasay City, which was,
apart, from that of his parents, with the prayer that in the event,
plaintiff would refuse to receive support under that set-up, that
he be declared under, no compulsion to remit the allowance to
her at Zamboanga City. As it was denied, defendant brought the
matter to the Court of Appeals, but this Tribunal certified the

case to Us for adjudication pursuant to the provisions of Section

17-6 of Republic Act No. 296. The only question presented for,
our consideration by this appeal is whether a wife is entitled to
received support from his husband where she refused to live
with him on account of some misunderstanding she had with the
husband's immediate relatives.
It is clear to Us, and this is borne out by the findings, of the
court a quo, that plaintiff wife, then 19 yeas of age, had the
unfortunate experience of finding herself in some sort of
domestic controversy, with her husband's immediate relatives in
the opposite camp, which made her feel that living with them
would already be intolerable and unbearable. Most likely,
therefore, when they visited her parents, she recounted her
plight to them and as the usual reaction of parents in matters of
this nature, they picked up and championed the cause of their
daughter which resulted in the estrangement of the young
couple. Indeed disagreement among in-laws is a problem as old
as the world itself, but despite this discouraging facet of married
life there would always be in-laws as long there are marriages
and the same vicious cycle would be repeated. In the case at
bar, which is a clear illustration of this perennial domestic
problem, We find that while the wife remains adamant on her
stand to effect a separation in fact between her and her
husband, the latter, has adopted a more conciliatory attitude by
acknowledging his obligation to support her and even going to
the extent of expressing his willingness to abide by her wish to
have a conjugal dwelling apart from his parents, although it,
appears that he may find it hard to make adequate provisions
for their family, for he is allegedly receiving a salary of only 170
a month as salesman in a commercial firm. Defendant does not
dispute that our civil Code imposes on the husband the
responsibility of maintaining and supporting, his wife and the
rest of the family (Art. 111). He insists, however, that under the,
Civil Code, which provides:
ART. 299. The person obliged to give support may, at his option,
fulfill his obligation either by paying the allowance fixed, or by
receiving and maintaining in his house the person who has a
right to receive support. The latter alternative cannot be availed
of in this case there is a moral or legal obstacle thereto;
he is given the option to fulfill the said duty either by paying the
allowance as fixed by the Court or receiving and maintaining the
person entitled thereto in his house; and that he elects to
perform his obligation by the second means allowed him by law.
The aforeqouted provision of the law is clear enough to require
any further elucidation. In giving the obligor the option to fulfill
his duty, it provides for only one occasion when the second
alternative could not be availed of i.e., when there is a moral or
legal obstacle thereto. It is true that plaintiff wife charged that
they were estranged because of marital troubles and incessant
bickering. While physical ill-treatment may be ground to compel
a husband to provide a separate maintenance for his wife
( Arroyo vs. Vasquez de Arroyo, 42 Phil., 54 ) said allegation
was not proved during the trial. Instead, the lower court found
that the root-cause of all their differences could be traced to

disagreements common among relatives by affinity. Certainly,

We do not think that misunderstanding with in-laws, who may be
considered third parties to the marriage, is the moral or legal
obstacle that the lawmakers contemplated in the drafting of said
provision. The law, in giving the husband authority to fix the
conjugal residence (Art. 110), does not prohibit him from
establishing the same at the patriarchal home, nor is it against
any recognized norm of morality, especially if he is not fully
capable of meeting his obligation as such head of a family
without the aid of his elders. But even granting arguendo that it
might be "illegal" for him to persist on living with his parents
over the objection of his wife, this argument becomes moot in
view of defendant's manifestation that he is willing to establish a
residence, separate from his parents, if plaintiff so desires. We
are aware are that although the husband and the wife are,
obliged to live together, observe mutual respect and fidelity and
render mutual help and assistance ( Art. 109), and that the wife
is entitled to be supported, our laws contain no provision
compelling the wife to live with her husband where even without
legal justification she establishes her residence apart from that
provided for by the former, yet and in such event We would see
no plausible reason why she should be allowed any support
from the husband. It appearing that defendant husband availed
of the option granted him by Article 299 of the Civil Code and
there being no legal or moral hindrance to the exercise of the
second alternative as elected by him, the answer to the
question presented by this appeal is certainly obvious.
Wherefore, the decision appealed from is hereby modified by
giving the defendant husband Chua Ching Beng the option of
supporting his wife at their conjugal dwelling apart from the
home of the parents of the husband. Should plaintiff wife refuse
to abide by the terms of this decision, then the defendantappellant shall be considered relieved from the obligation of
giving any support to his wife. Without pronouncement as to
costs. It is so ordered. Paras, C.J., Bengzon, Padilla, Reyes, A.,
Bautista Angelo, Concepcion, Reyes, J.B.L. and Endencia,
JJ., concur.
Facts: Married on May 1951. Went to Zamboanga, husband left
her with her parents for a while with her promise that she would
go back to Manila. She didnt. Sept 30 1953. Atilano filed for
support of 200/month against her husband in the premise that
they were living separately since Oct 1952 due to their
bickering. Husband replied that he preferred to support her in
their own conjugal home in Manila.
Was awarded 75/month but with the observation that separation
was due more to in-laws than
Anything else and her demand to move to a different house
from them
ISSUE: WON wife is entitled to receive support from her
husband when she is the one who left the conjugal dwelling
HELD: depends on the situation, in this case NO
ART. 299. The person obliged to give support may, at his option,
fulfill his obligation either by paying the allowance fixed, or by
receiving and maintaining in his house the person who has a

right to receive support. The latter alternative cannot be availed

of in this case there is a moral or legal obstacle thereto;
Thus, husband is only obliged to pay for support if there is moral
or legal reason for him not to provide support in own home.
In this case, the primary reason for her leaving are the in-laws
and even if this would be seen as legal basis, the fact that
husband promised that if she came home he would provide a
separate home for them negates this basis. RESULT: has option
of supporting his wife at their conjugal dwelling apart from the
home of the parents of the husband. Should plaintiff wife refuse
to abide by the terms of this decision, then the defendantappellant shall be considered relieved from the obligation of
giving any support to his wife.
JULIA DEL ROSARIO, ET AL., Plaintiffs-Appellants, v.
ANTONIO DEL ROSARIO, ET AL.,Defendants-Appellees.
Galo Al. Acua for Appellants. M. H. de Joya and Fidel J.
Silva
for Appellees.
SYLLABUS
1. LIQUIDATION OF CONJUCAL PARTNERSHIP; ACT No.
3176; PENDENCY OF TESTAMENTARY PROCEEDINGS
EXCLUDES ANY OTHER PROCEEDING AIMED AT THE
SAME PURPOSE. Act No. 317(; only amends the former law
in the sense that upon the death of any of the spouses the
community property shall be liquidated in the testamentary or
intestate proceedings of the deceased spouse. But whatever
law might be applicable, and even assuming that it was that
prior to act No. 3176, the intestate of R. del R. not having been
commenced upon his death in 1895 until his widow F. A. also in
1933, and the testamentary proceedings of F. A. having been
subsequently initiated, wherein, among other things, the
liquidation of her conjugal properties with the deceased R. del
R. should be made, the pendency these testamentary
proceedings of the deceased wife excludes any other
proceeding aimed at the purpose (Zaide v. Concepcion and
Quintana, 32 Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in the
liquidation and partition of the
conjugal properties of the deceased spouses R. del R. and F. A.
among their heirs.
D E C I S I O N AVANCEA, C.J. : The complaint alleges: That
Ramon del Rosario and Florencia Arcega were husband and
wife, the former having died in 1895 and the latter in 1933; that
the plaintiffs and the defendants are the heirs of both; that
Ramon del Rosario died without a will, leaving properties of the
conjugal partnership valued at P19,000; that after the death of
Ramon del Rosario, his widow Florencia Arcega administered
these properties and with the products thereof acquired others,
which are those described in paragraph 9 of the complaint. It is,
moreover, inferred from the complaint that after the death of
Ramon del Rosario, his intestate was not commenced and the
conjugal properties were not liquidated until Florencia Arcega
died, after which the latters testamentary proceedings were
initiated
and
are
now
in
progress.

The plaintiffs bring this action to recover their share not only in
the conjugal properties left by Ramon del Rosario but also in
those acquired by Florencia Arcega with the products of said
properties.
A demurrer was interposed to the complaint on the ground that
there is another action pending between the same parties and
for the same cause of action; that there is a defect of party
plaintiffs and party defendants, and that the complaint does not
allege facts sufficient to constitute a cause of action.
The court sustained this demurrer and dismissed the case.
From
this
resolution
an
appeal
was
taken.
Both in the Court of First Instance as well as in this court, the
parties discuss whether Act No. 3176, or the former law, is
applicable to the case. Act No. 3176 only amends the former
law in the sense that upon the death of any of the spouses the
community property shall be liquidated in the testamentary or
intestate proceedings of the deceased spouse. But whatever
law might be applicable, and even assuming that it was that
prior to Act No. 3176, the intestate of Ramon del Rosario not
having been commenced upon his death in 1895 until his widow
Florencia Arcega also died in 1933, and the testamentary
proceedings of Florencia Arcega having been subsequently
initiated, wherein, among other things, the liquidation of her
conjugal properties with the deceased Ramon del Rosario
should be made, the pendency of these testamentary
proceedings of the deceased wife excludes any other
proceeding aimed at the same purpose (Zaide v. Concepcion
and Quintana, 32 Phil., 403). At any rate, the plaintiffs have a
right to intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties of the
deceased spouses Ramon del Rosario and Florencia Arcega
among
their
heirs.
The appealed judgment is affirmed, with the costs to the
appellants. So ordered. Villa-Real, Imperial, Diaz, Laurel,
Concepcion and Moran, JJ., concur.
X. C. Mutual help and support Arts 68 & 70 FC, compared
with Art. 111 CC, Arts. 199-200 FC
Cases
Lisa Rae Ragsdale McGUIRE, Appellant, v. Charles Francis
McGUIRE, Appellee.
Decided: September 30, 1999
Panel consists of Justices MIRABAL, HEDGES, and SMITH
(Retired).* Lisa Rae Ragsdale McGuire, Webster, pro se. Kevin
Thomas McGuire, Houston, for Appellee.
OPINION
We affirm.Appellant, Lisa Rae Ragsdale McGuire (Wife),
appeals from an order modifying child support in favor of
Charles Francis McGuire (Husband).
Facts
The final divorce degree incorporated the Agreement's
provisions for child support and tax exemptions. About seven
months later, in 1993, Husband and Wife were divorced. In
1992, Husband and Wife signed an agreement incident to

divorce (Agreement), which required Husband to pay $800 per

month in child support and conditionally granted him the tax
exemptions for their three dependent children.
Wife appeals the trial court's order in four points of error. The
trial court reduced Husband's monthly child support payments
from $800 to $288 and apportioned the tax exemptions between
Husband and Wife. 156.401 (Vernon 1996). See tex.
Fam.Code Ann. He sought to reduce his payment
obligations, arguing that his circumstances had materially and
substantially changed. Less than three weeks later, Husband
moved to modify the suit affecting the parent-child relationship.
In 1997, the trial court found him in contempt and ordered him
to pay the arrearages. In 1996, Husband stopped paying child
support.
Standard of Review
Id. There is no abuse of discretion if some probative and
substantive evidence supports the order. Holley v. Holley, 864
S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ
denied). Id. The reviewing court must view the evidence in the
light most favorable to the trial court's actions and indulge every
legal presumption in favor of the order. The test is whether the
trial court acted arbitrarily, unreasonably, or without reference to
guiding rules and principles. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex.1990). A trial court's ruling on child support will
not be reversed on appeal unless there is a clear abuse of
discretion.
Agreement Incident to Divorce
In her first point of error, Wife contends that the trial court erred
by not enforcing the Agreement for child support and tax
exemptions.1
Id. Nonetheless, even if we consider the merits, we affirm the
trial court's order.Id. Because Wife's first point of error is
multifarious, we may overrule it on that basis. A point of error
is multifarious when it embraces more than one specific ground
of error. Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.Austin 1996, no writ). A complaint on appeal must address
specific errors and not merely attack the trial court's order in
general terms. See tex.R.App. P. 38.1(e). Wife's first point of
error does not direct this Court's attention to any specific error
on which she bases her complaint.
In other words, she contends that the $800 obligation in the
Agreement should continue to exist as a separate source of
liability. Instead, Wife argues that the trial court should have
enforced the prior Agreement at the modification hearing.
There is no dispute as to whether the trial court had the
authority to reduce the support payments in the decree. Both
the Agreement and decree required Husband to pay $800 per
month in child support. Turning to the merits, Husband and
Wife signed the Agreement, which was later incorporated by
reference into their final divorce degree.
Id. We find this reasoning persuasive.Id. This Court held in
Leonard that the trial court could modify the court-ordered
support payments, notwithstanding any agreements of the
parties, if it was in the child's best interest. Id. Instead, he

counterclaimed for breach of contract. Id. The father in

Leonard did not dispute whether the trial court could modify its
own judgment. Id. The mother's motion to modify in Leonard,
like Husband's motion in this case, sought to modify only the
court-ordered support, not the contractual agreement. In
Leonard, as in this case, the father's child support liability
stemmed from two separate sources: (1) the contractual
agreement incident to divorce and (2) the court-ordered
judgment. See Leonard v. Lane, 821 S.W.2d 275, 277
(Tex.App.-Houston [1st Dist.] 1991, writ denied). This Court
has previously held that an agreement incident to divorce does
not prohibit a modification of support payments.
Id.Id. The father, therefore, remained obligated to pay the
contractual child support. Id. Accordingly, the contract
continued to exist as a separate source of liability. Id. The
court decreased the support payments, thereby affecting only
the court-ordered judgment, not the contract. Id. Because
contract rules governed the contract, the trial court could not
modify it in the absence of fraud, accident, or mistake, except
by consent of the parties. In Ruhe, the father's child support
liability also stemmed from both the contract and the judgment.
In contrast, the case of Ruhe v. Rowland, 706 S.W.2d 709,
710 (Tex.App.-Dallas 1986, no writ), appears to support Wife's
argument.
Id. at 431. The order in Alford specifically stated that it was
completely separate and apart from and had no bearing on
any contract between the parties. Similarly, Alford v. Alford,
487 S.W.2d 429, 434 (Tex.Civ.App.-Beaumont 1972, writ
dism'd), held that a court cannot modify a contractual
settlement agreement relating to child support without the
legal prerequisites for contract modification.
Moreover, Wife concedes that the Agreement was attached to
and was ordered and incorporated into the decree. Both the
Agreement and decree ordered the same support amounts and
payment schedules. To the contrary, the Agreement stated
that it shall become incorporated by reference into the decree.
See tex.R.App. P. 38.1(h). Nor did Wife provide any record
citations to prove that the Agreement and decree were intended
to be separate. Alford is distinguishable because, after
searching the record in this case, we found no such language in
either the Agreement or the decree.
Leonard, 821 S.W.2d at 277; Hoffman, 805 S.W.2d at 851.Id.
Consequently, a court may modify a child support agreement
that was incorporated into a decree. Once the court approves
the agreement and makes it a part of the judgment, the
agreement is no longer merely a contract between private
individuals, but is the judgment of the court. Rivera v. Office of
Attorney Gen., 960 S.W.2d 280, 283 (Tex.App.-Houston [1st
Dist.] 1997, no pet.). When an agreement is incorporated into
a divorce decree, the decree is a consent judgment.
See Leonard, 821 S.W.2d at 277; Hoffman, 805 S.W.2d at
851. Thus, the trial court had the authority to modify Husband's
payment obligations. It became a court judgment once it was

incorporated into the decree. Likewise, the Agreement in this

case was not merely a contract.
We hold that the trial court had the authority to modify the
divorce decree and did not abuse its discretion in failing to
enforce the Agreement incident to divorce. Id. Because neither
the divorce decree nor the Agreement provided that the terms
were enforceable as contract terms, contractual remedies are
not available. Terms of the agreement in the divorce order
may be enforced by all remedies available for enforcement of a
judgment, including contempt, but are not enforceable as
contract terms unless provided by the agreement. 154.124(c).
tex. Fam.Code Ann. Moreover, a child support agreement
must specifically provide for contract enforcement to be
enforceable as a contract.
Additionally, in her first point of error, Wife contends that the trial
court should have excluded Husband's 1992 tax return because
it predated the 1993 divorce decree.
Id. The relevant time period, however, began from the Ritter's
1980 divorce decree, not from the 1987 order. Id. at 864. To
support her argument, Wife relies on Ritter v. Wiggins, 756
S.W.2d 861 (Tex.App.-Austin 1988, no writ), in which the father
proved that the circumstances had not changed since a 1987
court order. 156.401 (Vernon 1996). tex. Fam.Code Ann.
A court may modify a child support order if the circumstances
have materially and substantially changed since the date of the
order's rendition.
Thus, the trial court did not err in admitting Husband's 1992 tax
return. The record, which includes Husband's financial
information for 1992, 1995, 1996, and 1997, reflects a
substantial and material change in Husband's circumstances
since the 1993 divorce decree. Therefore, the 1992 tax return
predated the decree by less than two months, not by the seven
years in Ritter. Less than two months later, on February 23,
1993, the divorce decree was rendered. Husband's 1992 tax
return pertained to his income from January 1 through
December 31, 1992. Bradshaw v. Billups, 587 S.W.2d 61, 62
(Tex.Civ.App.-Eastland 1979, no writ) (two-year time
differential). Id.; cf. This case is distinguishable from the
seven-year time differential in the Ritter case.
tex.R.App. P. 3.1(a). Without a trial objection, Wife waived the
right to raise this complaint on appeal. Moreover, Wife did not
object at the hearing when Husband's 1992 tax return was
introduced and admitted in evidence.
We overrule the first point of error.
Modification of Child Support
In her fourth point of error, Wife contends that the evidence is
legally and factually insufficient to establish a material and
substantial change in Husband's circumstances.2
Hollifield, 925 S.W.2d at 155. The court retains broad
discretion in modifying a prior support order. 156.402(b). Id.
at The primary consideration is the best interest of the child.
156.401 (Vernon 1996). tex. Fam.Code Ann. As set forth
above, a trial court may modify a child support order if the
circumstances have materially and substantially changed.

His evidence included his own teHusband sought to reduce

his child support payments, arguing that his net income had
decreased. In 1997, his projected earnings were about $1,218
per month. While still married in 1993, he left the company and
started his own remodeling business. Husband showed that in
1992, his salary as a full-time employee for a remodeling
company was about $2,255 per month. stimony, his
accountant's testimony, and his financial
information for 1992, 1995, 1996, and 1997.
Id.Id. The court, therefore, reduced his support payments. Id.
Nonetheless, he met his burden of proving that his
circumstances materially and substantially changed.
Unfortunately, the new job was not as lucrative as the previous
one. Like Husband, the father in Starck v. Nelson, 878 S.W.2d
302, 308 (Tex.App.-Corpus Christi 1994, no writ), started a new
job and did not foresee what his future self-employment income
would be.
Thus, the trial court did not abuse its discretion in finding that
Husband's prospective monthly net resources had decreased to
$1,218.37. See Shoemate v. Winkley, 505 S.W.2d 357, 358-59
(Tex.Civ.App.-El Paso 1974, no writ). Because the trial court
had knowledge of the case from the time of the divorce until the
modification hearing, it was in a better position than this Court to
consider the evidence. See Tucker v. Tucker, 908 S.W.2d 530,
534 (Tex.App.-San Antonio 1995, writ denied). The trial court
in this case was free to believe or disbelieve Husband's
evidence.
We hold that the record before us does not disclose a clear
abuse of discretion.154.122(a) (Vernon 1996). tex.
Fam.Code Ann. An order that conforms to the guidelines,
such as the order in this case, is presumed to be reasonable
and in the best interest of the child. Moreover, the trial court's
prospective child support order of $288.80 per month did not
vary from the Family Code's guidelines.
We overrule the fourth point of error.
Needs of the Children
In her second point of error, Wife contends that the trial court
erred when it did not set the child support based on the needs
of the children.
For example, some of the additional factors are:156.402(b)
(Vernon 1996). tex. Fam.Code Ann. In addition to the
Family Code's guidelines, a trial court may consider other
relevant evidence in ordering child support.
the age and needs of the child;(1)
the ability of the parents to contribute to the support of the
child;(2)
any financial resources available for the support of the child;
and (3)
any other reason consistent with the best interest of the child,
taking into consideration the circumstances of the parents.(17)
Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex.App.-Corpus
Christi 1991, writ The trial court, therefore, retains broad
discretion. 154.123(b) (Vernon 1996). tex. Fam.Code Ann.
denied).

We hold that the trial court did not err in failing to set child
support on the additional factor regarding the needs of the
children. This factor, however, is only one of a nonexhaustive
list of seventeen additional factors that a court may consider.
Nevertheless, Wife argues that the trial court should have
considered the needs of the children. 154.122(a). tex.
Fam.Code Ann. Here, the support order is presumed to be
reasonable and in the best interest of the child because it did
not vary from the Family Code's guidelines.
Baucom v. Crews, 819 S.W.2d 628, 631 (Tex.App.-Waco 1991,
no writ). Additional proof regarding the children's needs was
not necessary. As set forth above in point of error four,
Husband proved that his own circumstances had materially
changed. 156.401. Under the statute, Husband was not
required to prove both. tex. Fam.Code Ann. Husband was
required to prove that the circumstances of either the child or a
person affected by the order had materially changed. Wife
also contends that the evidence is legally and factually
insufficient to show that needs of the children had materially
changed.
We overrule the second point of error.
Intentional Underemployment
154.066 (Vernon 1996). tex. Fam.Code Ann. In her third
point of error, Wife contends that the trial court should have
based the child support on Husband's earning potential, instead
of on his actual earnings, because Husband was intentionally
underemployed.
Wife argues that Husband could earn more money as a
salaried, full-time employee, either in
the remodeling business or as a certified teacher. In 1996, he
earned about $15,000, and expected to earn a little less than
that in 1997. Husband became self-employed in the
remodeling business because it appeared more lucrative than
teaching.
Instead, he was forced to start his own business in 1993
because companies began to use contract labor to save money
and don't have people like [him] anymore. He explained that
he was not intentionally underemployed. Moreover, Husband
testified that he doubted if he could make more money working
for another company. Husband's self-employment income fell
within that range. Regarding the remodeling business,
Husband's accountant testified that incomes range anywhere
from $12,000 yearly up to $20,000, but rarely up to $28,000.
In fact, he had previously earned only $11,200 per year as a
certified teacher. However, Husband argued that he did not
have enough teaching experience to earn a salary in the higher
range. Regarding teaching, evidence was presented that
teachers earn between $23,000 and $33,000 per year.
We hold that the trial court did not err in failing to set child
support on Husband's earning potential. See Starck, 878
S.W.2d at 308. Accordingly, it is possible that Husband may
not have obtained greater financial resources by working for a
different company. See Tucker, 908 S.W.2d at 534. The trial
court was free to believe or disbelieve Husband's testimony.

He further testified that other jobs would not provide a higher

salary. See Starck, 878 S.W.2d at 308. Husband testified
that he thought self-employment would be more lucrative;
however, he surely did not foresee that his earnings would
decrease. The trial court did not make findings on the issue of
intentional underemployment.
We overrule the third point of error.
We affirm the order of the trial court.
FOOTNOTES
1 To support her argument that the trial court cannot amend the
agreement incident to divorce, she asserts various contract
rules such as duress, lack of knowledge, mistake, and parol
evidence.Specifically, Wife complains that the trial court erred
and abused its discretion when it failed to enforce the
agreement incident to divorce for child support and conditional
use of the federal tax exemptions because there is no evidence
or insufficient evidence to support extinguishing and merging
the agreement setting child support into a post-judgment
modification of the 1993 consent decree. .
2Id. Even though Wife raises only sufficiency claims, we will
address both the sufficiency and abuse of discretion prongs of
the inquiry. Once the reviewing court determines whether
sufficient evidence exists, it must then decide whether the trial
court appropriately exercised its discretion in applying the child
support guidelines. Farish v. Farish, 921 S.W.2d 538, 542
(Tex.App.-Beaumont 1996, no writ). In the child support
context, sufficiency challenges are not independent points of
error, but are incorporated into an abuse of discretion
determination. .
ADELE HEDGES, Justice.
Facts. Plaintiff, Lydia McGuire, married Defendant, Charles
McGuire, on August 11, 1919. At the time of marriage Defendant
was a bachelor of 46 or 47 years of age and had a reputation of
extreme frugality, of which Plaintiff was aware. Plaintiff had been
previously married and had inherited a one-third interest in 80
acres of land from her previous husband. Plaintiff brought an
action against Defendant to recover suitable maintenance and
support money. Plaintiff testified that defendant was a poor
companion and that he would give her only small amounts of
money on request. Plaintiff worked the fields and did chores.
For several years she had raised chickens and sold poultry and
eggs to buy clothing, things she wanted, and groceries. The
house was not equipped with a bathroom, bathing facilities, or
an inside toilet. Plaintiff was privileged to use all the rent money
she wanted from the 80 acres of land. She used this money to
visit her daughters, and Defendant provided no fu
nds for such use. Plaintiff had three abdominal operations for
which Defendant paid, but Plaintiff was no longer able to raise
chickens. Defendant had land in the value of $83,960, bank
deposits in the sum of $12,786.81, and income of $8,000 or
$9,000 a year. Defendant appealed the trial courts ruling in
favor of Plaintiff, alleging that the decree was not supported by
sufficient
evidence,
and
is
contrary
to
law.
Issue. Was the trial court correct in its finding that when a wife

is abandoned by her husband, without means of support, a bill

in equity will lie to compel the husband to support the wife
without asking for a divorce decree?
Held. To maintain such an action the parties must be separated
or living apart from one another, therefore the trial court erred.
The trial court found that it was well-established law that it is the
duty of the husband to provide for his family with support and
means of living such as fit his means, position, and station of
life. Previous case law had held that a wife may bring a suit in
equity to secure support and alimony regardless of if the action
is for divorce.
In the present case the marital relationship continued for over
33 years with no complaint from the Plaintiff regarding her
support. The parties were not separated or living apart at any
time. Public policy requires that the standards of a family are a
matter of concern to the household, and not for the courts to
determine. As long as the home is maintained and the parties
are living as husband and wife the husband is legally supporting
the wife.
Discussion. Without a showing of a termination of the marriage
the Court found that it would be contrary to public policy to force
the husband to make specified payments to the wife.
ARTURO
PELAYO, plaintiff-appellant, vs.
MARCELO
LAURON, ET AL., defendants-appellees.
J.H. Junquera, for appellant. Filemon Sotto, for appellee.
TORRES, J.: On the 23rd of November, 1906, Arturo Pelayo, a
physician residing in Cebu, filed a complaint against Marcelo
Lauron and Juana Abella setting forth that on or about the 13th
of October of said year, at night, the plaintiff was called to the
house of the defendants, situated in San Nicolas, and that upon
arrival he was requested by them to render medical assistance
to their daughter-in-law who was about to give birth to a child;
that therefore, and after consultation with the attending
physician, Dr. Escao, it was found necessary, on account of
the difficult birth, to remove the fetus by means of forceps which
operation was performed by the plaintiff, who also had to
remove the afterbirth, in which services he was occupied until
the following morning, and that afterwards, on the same day, he
visited the patient several times; that the just and equitable
value of the services rendered by him was P500, which the
defendants refuse to pay without alleging any good reason
therefor; that for said reason he prayed that the judgment be
entered in his favor as against the defendants, or any of them,
for the sum of P500 and costs, together with any other relief that
might be deemed proper.
In answer to the complaint counsel for the defendants denied all
of the allegation therein contained and alleged as a special
defense, that their daughter-in-law had died in consequence of
the said childbirth, and that when she was alive she lived with
her husband independently and in a separate house without any
relation whatever with them, and that, if on the day when she
gave birth she was in the house of the defendants, her stay their
was accidental and due to fortuitous circumstances; therefore,

he prayed that the defendants be absolved of the complaint with

costs against the plaintiff.
The plaintiff demurred to the above answer, and the court below
sustained the demurrer, directing the defendants, on the 23rd of
January, 1907, to amend their answer. In compliance with this
order the defendants presented, on the same date, their
amended answer, denying each and every one of the
allegations contained in the complaint, and requesting that the
same be dismissed with costs.
As a result of the evidence adduced by both parties, judgment
was entered by the court below on the 5th of April, 1907,
whereby the defendants were absolved from the former
complaint, on account of the lack of sufficient evidence to
establish a right of action against the defendants, with costs
against the plaintiff, who excepted to the said judgment and in
addition moved for a new trial on the ground that the judgment
was contrary to law; the motion was overruled and the plaintiff
excepted and in due course presented the corresponding bill of
exceptions. The motion of the defendants requesting that the
declaration contained in the judgment that the defendants had
demanded therefrom, for the reason that, according to the
evidence, no such request had been made, was also denied,
and to the decision the defendants excepted.
Assuming that it is a real fact of knowledge by the defendants
that the plaintiff, by virtue of having been sent for by the former,
attended a physician and rendered professional services to a
daughter-in-law of the said defendants during a difficult and
laborious childbirth, in order to decide the claim of the said
physician regarding the recovery of his fees, it becomes
necessary to decide who is bound to pay the bill, whether the
father and mother-in-law of the patient, or the husband of the
latter.
According to article 1089 of the Civil Code, obligations are
created by law, by contracts, by quasi-contracts, and by illicit
acts and omissions or by those in which any kind of fault or
negligence occurs.
Obligations arising from law are not presumed. Those expressly
determined in the code or in special laws, etc., are the only
demandable ones. Obligations arising from contracts have legal
force between the contracting parties and must be fulfilled in
accordance with their stipulations. (Arts. 1090 and 1091.)
The rendering of medical assistance in case of illness is
comprised among the mutual obligations to which the spouses
are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing
something (art. 1088), and spouses are mutually bound to
support each other, there can be no question but that, when
either of them by reason of illness should be in need of medical
assistance, the other is under the unavoidable obligation to
furnish the necessary services of a physician in order that
health may be restored, and he or she may be freed from the
sickness by which life is jeopardized; the party bound to furnish
such support is therefore liable for all expenses, including the
fees of the medical expert for his professional services. This

liability originates from the above-cited mutual obligation which

the law has expressly established between the married couple.
In the face of the above legal precepts it is unquestionable that
the person bound to pay the fees due to the plaintiff for the
professional services that he rendered to the daughter-in-law of
the defendants during her childbirth, is the husband of the
patient and not her father and mother- in-law, the defendants
herein. The fact that it was not the husband who called the
plaintiff and requested his assistance for his wife is no bar to the
fulfillment of the said obligation, as the defendants, in view of
the imminent danger, to which the life of the patient was at that
moment exposed, considered that medical assistance was
urgently needed, and the obligation of the husband to furnish
his wife in the indispensable services of a physician at such
critical moments is specially established by the law, as has been
seen, and compliance therewith is unavoidable; therefore, the
plaintiff, who believes that he is entitled to recover his fees,
must direct his action against the husband who is under
obligation to furnish medical assistance to his lawful wife in such
an emergency.
From the foregoing it may readily be understood that it was
improper to have brought an action against the defendants
simply because they were the parties who called the plaintiff
and requested him to assist the patient during her difficult
confinement, and also, possibly, because they were her father
and mother-in-law and the sickness occurred in their house.
The defendants were not, nor are they now, under any
obligation by virtue of any legal provision, to pay the fees
claimed, nor in consequence of any contract entered into
between them and the plaintiff from which such obligation might
have arisen.
In applying the provisions of the Civil Code in an action for
support, the supreme court of Spain, while recognizing the
validity and efficiency of a contract to furnish support wherein a
person bound himself to support another who was not his
relative, established the rule that the law does impose the
obligation to pay for the support of a stranger, but as the liability
arose out of a contract, the stipulations of the agreement must
be held. (Decision of May 11, 1897.)
Within the meaning of the law, the father and mother-in-law are
strangers with respect to the obligation that devolves upon the
husband to provide support, among which is the furnishing of
medical assistance to his wife at the time of her confinement;
and, on the other hand, it does not appear that a contract
existed between the defendants and the plaintiff physician, for
which reason it is obvious that the former can not be compelled
to pay fees which they are under no liability to pay because it
does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second
errors assigned to the judgment below are unfounded, because,
if the plaintiff has no right of action against the defendants, it is
needless to declare whether or not the use of forceps is a
surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it

is our opinion that the judgment appealed from should be
affirmed with the costs against the appellant. So ordered.
Mapa and Tracey, JJ., concur. Arellano, C.J., and Carson,
J., concurs in the result. Willard, J., dissents.
FACTS: Petitioner Pelayo, a physician, rendered a medical
assistance during the child delivery of the daughter-in-law of the
defendants. The just and equitable value of services rendered
by him was P500.00 which the defendants refused to pay
without alleging any good reason. With this, the plaintiff prayed
that the judgment be entered in his favor as against the
defendants for the sum of P500.00 and costs.
The defendants denied all of the allegation of the plaintiff,
contending that their daughter-in-law had died in consequence
of the child-birth, and that when she was alive, she lived with
her husband independently and in a separate house, that on the
day she gave birth she was in the house of the defendants and
her stay there was accidental and due to fortuitous
circumstances.
ISSUE: Whether or not the defendants are obliged to pay the
petitioner for the medical assistance rendered to their daughterin-law.
HELD: According to Article 1089 of the Old Civil Code (now
1157), obligations are created by law, by contracts, by quasicontracts, by illicit acts and omissions or by those which any
kind of fault or negligence occurs. Obligations arising from law
are not presumed. Those expressly determined in the Code or
in special law, etc., are the only demandable ones.
The rendering of medical assistance in case of illness is
comprised among the mutual obligations to which the spouses
are bound by way of mutual support as provided by the law or
the Code. Consequently, the obligation to pay the plaintiff for the
medical assistance rendered to the defendants daughter-in-law
must be couched on the husband.
In the case at bar, the obligation of the husband to furnish his
wife in the indispensable services of a physician at such critical
moments is especially established by the law and the
compliance therewith is unavoidable.
X. D. Management of the household Art. 71, FC compared
with Art. 115, NCC
Case
Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.
96-2847.No.
Decided: June 24, 1998
Before SCHWARTZ, C.J., and NESBITT and GODERICH,
JJ.Before SCHWARTZ, C.J., and NESBITT, JORGENSON,
COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER,
and SORONDO, JJ.* Barbara Green, Coral Gables; Ellen
Lyons, Miami, for appellant. Young, Berman, Karpf, and Burton
Young, and Andrew S. Berman, Miami Beach; Hector and
Harke, and Lance A. Harke, Miami; Amy D. Ronner, Miami, for
appellee on rehearing.

We reverse and remand for further proceedings.This is an

appeal from a final judgment of dissolution of marriage.
Since the children were born, the parties have always had
either a live-in nanny, au pair, or housekeeper, who has helped
care for the children. The parties have two daughters, Baylor,
who was born in 1985, and Avery, who was born in 1988. The
record indicates that the parties were married in New Mexico in
February 1982.
The architect was very successful until the stock market
crashed in October 1987.At the time of their marriage, one
spouse, an architect, was involved in several business ventures,
including a publishing company and a custom-home building
firm.
The attorney's income would vary somewhere between
$30,000 and nearly $100,000 per year.The other spouse was
an attorney, who, at the time of the parties' marriage, had a law
firm.
During the 14-month period, the children remained in Miami
with the attorney, but the children visited with the architect
approximately every five weeks. In the summer of 1992, the
architect returned to New Mexico for approximately 14 months
to direct a treasure recovery project. Shortly thereafter, the
attorney and the children relocated to Miami, while the architect
remained in New Mexico for six months to finish several
projects and to sell the parties' home. In 1989, the attorney
found employment at a prestigious, mid-sized law firm earning
approximately $120,000 per year. The architect told the
attorney that if the attorney could find a job in Miami, the
architect would be willing to relocate. After the parties'
youngest child was born, the parties discussed a possible
relocation to Florida.
The attorney filed for divorce in May 1995. Upon the
architect's return, the parties separated although they both
continued to live in the marital home. Shortly after the attorney
accepted the position with the new firm, the architect returned to
Florida. In the fall of 1993, the attorney, who by this time was
earning approximately $275,000 with the mid-sized law firm,
accepted a shareholder position at one of Florida's largest law
firms earning over $300,000 per year.
The evidence included the testimony of the parties, neighbors,
friends, the children's teacher, school counselor, and the
managing partner of the law firm where the attorney is currently
employed.At trial, the court accepted evidence relating to
alimony, child custody, and the equitable division of the marital
assets and liabilities.
In addition to the attorney's employment at the law firm, the
attorney also teaches at a law school. The cases that required
the attorney to travel to Central Florida have been settled, and
the attorney's remaining cases will no longer require the
attorney to travel outside of Miami. When traveling, the
attorney would either leave Miami very early in the morning and
return late at night, or would stay in Central Florida overnight.
Moreover, during the past two years, the attorney has had
several cases that have required the attorney to travel to

Central Florida. On the other hand, when the attorney is not in

trial, the attorney works 45 to 50 hours per week. The attorney
testified that when the attorney is involved in a trial, the attorney
works approximately 12 to 14 hours per day, six to seven days
per week.
Further, he stated that the average litigation partner works 10 to
11 hours per day, and that litigators cannot work only eight
hours per day, five days per week. The managing partner also
testified that it is very easy to accommodate family problems
when an attorney works in the corporate or real estate
department, but that it is very difficult to accommodate family
problems when an attorney works in the litigation department.
The managing partner gave deposition testimony stating that
the attorney is a senior litigation partner and is responsible for
major cases.
The architect testified that both University of Miami and Florida
International University have a two-year masters program that
will teach the necessary computer skills. The architect lacks
the computer skills that are needed to find employment as an
architect in the present job market. After the architect moved
to Miami, the architect attempted to find employment, but was
unsuccessful. The parties testified that except for a few small
remodeling jobs, the architect has been unemployed for
approximately six years.
For example, the architect started and led one of the children's
Brownie troop, coached one of the children's soccer team,
regularly volunteered at the children's school, and takes the
children to doctor and dentist appointments.The record
demonstrates that since returning to Miami in the fall of 1993,
the architect has been very dedicated to the children.
Third, the attorney controls [anger] better around the kids.
There have been times in the children's life when [the architect]
has been, for whatever reasons, away from the home for
substantial periods of time and [the attorney] has been the
dominant influence. Second, the attorney has been the more
constant factor throughout the entire relationship. First, the
attorney has been more economically stable throughout the
marriage. The guardian ad litem testified that he looked at
three determinative factors in recommending that the attorney
be named the primary residential parent. The guardian ad
litem also found that since the parties have been living in Miami,
the architect has been the dominant caretaker during the day,
and [the attorney] on weekends, although both pitch in as
needed. The report states that the architect is warmer and
phenomenal with the children, and that the attorney tends to
be somewhat cooler by nature, but consistently spends time
with the children and makes a point out of doing things with
them on weekends and when [the attorney] is available
evenings. In his report, the guardian ad litem recommended
that the attorney be designated the primary residential parent
and that the architect be granted very liberal and frequent
access to the children. At trial, the guardian ad litem's report
was introduced into evidence, and he also testified at trial.

Further, she testified that the attorney is usually available on

weekends and that the attorney's work has not interfered with
the ability to be a good parent. She also stated that the
attorney is involved in the children's activities, plays with the
children, takes them to the movies, the beach, and the zoo, and
brings out their self-expression. Isabel Singleton, a neighbor
and family friend, testified that the architect pays attention to
detail, is very goal-oriented, and very caring.
On the other hand, she testified that the attorney is the one
who coordinates the sleepovers, and that the attorney is at
home on the weekends and in the evenings.Laura Mirabito,
another neighbor and family friend, testified that the architect
has a very close relationship with the children, coaches the
soccer team, picks the children up from school, coordinates the
children's play dates, and participates in school activities.
Keith Chasin, who coached in the same soccer club as the
architect, testified that the architect interacts with the children
well and is a good coach. He also stated that he has never met
the attorney.
Finally, she stated that all the children in the Brownie troop,
including the parties' children, adore the architect. Further,
she described the architect as a devoted parent. Moreover,
the architect is the one who leads the Brownie troop, and at one
meeting, one of the parties' children stated that the attorney is
never home and does not read the Brownie's paper. She
testified that the architect is one of the few parents who stays at
parties that the children attend. Further, the architect is the
one who usually picks up the children from her house; the
attorney has only picked up the children approximately three
times in the last four years. On the other hand, she stated that
she once saw the attorney arrive late and read law books during
the performance. Joan Hamel, the mother of one of the
children's best friend, testified that the architect gets to the
children's school functions early and videotapes the children.
Whereas, the attorney's involvement was limited to dropping
the children off at school eight to ten times during the school
year. For example, the architect made repairs to the
classroom, attended field trips, and participated in cooking and
art activities. Dulce del Castillo, one of the children's former
pre-school teachers, testified that the architect constantly
volunteered at the school.
Finally, she stated that the architect volunteered for the second
grade self-esteem program. Further, when she sent home
questionnaires, only the architect's questionnaire was returned.
Lynn Drittel, a school counselor, testified that the architect
involved the children in the school's divorce group.
Further, he stated that the architect was the caretaker on a
daily basis, but that the attorney was available and that the
children responded well to the attorney. The attorney also
attended the Saturday games and the parent-child program.
He also testified that the attorney was involved in the parentchild soccer games, even though the games were played in the
early afternoon. He stated that the architect is a good parent,
a good caretaker, patient with the children, and involved in the

children's daily activities. David Harper, a fellow parent and

sports coach, also testified.
Finally, Carol Lumpkin, who is a neighbor and family friend,
testified that both parents are loving and caring parents, and
that both have a lot to offer the children.
The architect appeals from this final judgment. Finally, the
architect was awarded $10,000 in attorney's fees. The trial
court also distributed the parties' marital assets and debts. The
trial court denied the architect's request for permanent alimony,
but granted the architect four months of rehabilitative alimony at
$2,000 per month. The final order also provides that for one
year within five years of entry of this Final Judgment but not
sooner than 2 years of entry herein of, primary physical
residence of the children shall be with the [architect]. After
evaluating the relevant statutory factors of section 61.13(3),
Florida Statutes (1995), the trial court awarded primary
residential custody of the children to the attorney, with frequent
and continuing contact with the architect.
We agree.The architect contends that the trial court abused
its discretion by granting primary residential custody of the
children to the attorney.
See Duchesneau v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th
DCA 1997); Cherradi v. Lavoie, 662 So.2d 751, 753 (Fla. 4th
DCA 1995); Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th
DCA 1989); Quirino v. Quirino, 459 So.2d 1183 (Fla. 3d DCA
1984). An appellate court must affirm if there is substantial
competent evidence to support the trial court's finding that the
custody award was in the best interests of the child. Sullivan v.
Sullivan, 668 So.2d 329, 330 (Fla. 4th DCA 1996)(citing
Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). A trial
court's determination of custody is subject to an abuse of
discretion standard of review.
A trial court's The American Law Institute has addressed this
issue in its Illustrations: Such a continuation would clearly be
in the best interests of the children. decision as to which
parent should be awarded primary residential custody of the
children should attempt to preserve and continue the caretaking
roles that the parties had established.
Nancy argues that since she gave up being the primary
caretaker for the benefit of the family and not because of
personal preference, Gary should not be favored based on his
larger caretaking role. Each wants primary custodial
responsibility for the children. After eight years of this
arrangement, Gary and Nancy separated. When their second
child was one year old, they decided to switch roles because of
Nancy's greater earning capacity. For the first four years after
their first child was born, Gary worked outside the home and
Nancy was the primary caretaker of the children. Gary and
Nancy have three children, ages 12, 9, and 3. Gary is a highschool graduate and Nancy, a veterinarian.
The court should allocate custodial responsibility based on the
parents' past caretaking roles.Nancy's fairness argument is
irrelevant to how custodial responsibility should be allocated

2.09, at 121 (1998).Principles of the Law of Family Dissolution:

Analysis and Recommendations, Tentative Draft No. 3, Part I,
American Law Institute,
It is clear from the record that it is the architect who is available
to the children after school, takes the children to the doctor and
dentist appointments, and actively participates in the children's
school and after-school activities.In the instant case, the trial
court's award of primary residential custody of the children to
the attorney has the effect of not continuing the caretaking roles
that the parties had established.
The record clearly indicates that the architect, with an adequate
amount of child support, would continue to provide for the
children. The record in the instant case clearly indicates that
the architect, although not as financially fortunate as the
attorney, has always, as the primary caretaker, provided the
children with food, clothing, shelter, and medical attention.
When balancing the statutory factors, the fact that one parent is
the primary caretaker should always outweigh the fact that the
other parent is more financially stable. A parent's financial
resources is only one factor that must be balanced with the
remaining statutory factors outlined in section 61.13(3), Florida
Statutes (1995). 2.14, at 250 (1998). Principles of the Law of
Family Dissolution: Analysis and Recommendations, Tentative
Draft No. 3, Part I, American Law Institute, In light of the
child support guidelines, a parent's financial resources (or lack
of) should not be a determinative factor in deciding which
parent should be the primary residential parent. Moreover, the
guardian ad litem's testimony indicates that one of the
determinative factors in recommending that the attorney be
designated the primary residential parent is that the attorney
has been more economically stable throughout the marriage.
Under the circumstances of this case, the fact that architect
was away from the home prior to the separation should not be a
determinative factor where the architect has continually been
the primary caretaker since the fall of 1993.Moreover, the
guardian ad litem's recommendation was also based on the fact
that architect has been away from the home for substantial
periods of time and [the attorney] has been the dominant
influence.
However, on remand, the trial court should grant the attorney
liberal and frequent access to the children.Therefore, after
reviewing the record, including the testimony of the parties and
other witnesses, we find that the trial court abused its discretion
by awarding primary residential custody of the minor children to
the attorney.
Therefore, we reverse these awards and remand for further
pro On remand, the trial court should revisit these issues along
with the issue of child support, especially in light of this Court's
disposition as to primary residential custody. Finally, the award
of alimony to the architect was inadequate in light of the
rehabilitative plan presented by the architect and the lifestyle
established during the parties' marriage, Canakaris v.
Canakaris, 382 So.2d 1197 (Fla.1980), the distribution of the
parties' assets and liabilities was inequitable, and the award of

attorney's fees to the architect was insufficient. ceedings,

including evidentiary hearings, if necessary.
Reversed and remanded.
ON REHEARING EN BANC
Upon our rehearing en banc of this cause, we withdraw the prior
panel opinion issued on June 24, 1998 and substitute the
following opinion in its stead.
We affirm the trial court's decision designating the former
wife/mother (Alice Hector) as the primary custodial parent of the
two minor children but reverse and remand the court's
determination as to rehabilitative alimony, distribution of the
parties' assets and liabilities and attorney's fees for further
proceedings.The former husband/father (Robert Young)
appeals from the final judgment of dissolution of marriage.
Thus, there is no basis for us to overturn the lower court's
decision. After laboriously reviewing all of the record evidence
in this case, we conclude that there was substantial competent
evidence to support the trial court's discretionary call in this
regard. We do not agree. The father's main contention on
this appeal is that the trial court abused its discretion when it
awarded custody of the minor children to the mother.
However, such is not our prerogative.); see also Miller v.
Miller, 371 So.2d 565, 566 (Fla. 4th DCA 1979) (holding that
appellate court may not substitute its judgment for that of trial
judge). See Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st
DCA 1974) (stating [i]t may well be that were we permitted to
hear the case de novo we might enter a different final judgment.
Appellate courts are never permitted to retry a court's
determination in this regard de novo or reweigh the evidence.
See Canakaris, 382 So.2d at 1203; Dinkel v. Dinkel, 322 So.2d
22, 24 (Fla.1975); Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d
DCA 1994) (en banc); Jones v. Jones, 633 So.2d 1096, 1099
(Fla. 5th DCA 1994); Ross v. Ross, 321 So.2d 443, 444 (Fla. 3d
DCA 1975). If there is substantial competent evidence to
support the trial court's determination, it is firmly established that
a trial court cannot be deemed to have abused its discretion and
its ruling must be left undisturbed on appeal. See Canakaris v.
Canakaris, 382 So.2d 1197, 1203 (Fla.1980); Grant v. Corbitt,
95 So.2d 25, 28 (Fla.1957); Sullivan v. Sullivan, 668 So.2d 329,
329-30 (Fla. 4th DCA 1996). The simple issue for our
consideration is whether the trial court abused its discretion
when it determined that the best interests of the two minor
children dictated that their mother be designated their primary
custodial parent. As we see it, the child custody issue in this
case, with all its attendant notoriety, centers only around our
standard of review as an appellate court.
The record evidence, however, simply does not support this
suggestion. The father suggests that it was gender bias.
What then tilted the scales in favor of awarding custody to the
mother? Nobody disputes this fact, which alone made the trial
court's determination all the more difficult. At the outset, it is
important to emphasize that both the mother and father are very
loving and capable parents.
I

She had custody of her two minor children (now grown) from
her first marriage which she successfully reared while
simultaneously juggling the demands of her law practice. He
had no children from his first marriage. Their marriage was a
second for both. She was an attorney in private practice at her
own firm. He was an architectural designer with his own home
design firm as well as an entrepreneur with a publishing
company. At the time of their marriage in 1982, both the father
and mother were successful professionals in New Mexico. 1
Both contributed to and shared in the household expenditures
at all times. As typical working parents, they would both arrive
home between the hours of 5:30 and 6:00 each evening. After
the birth of their children, both parents continued to work
outside of the home and pursued their respective professional
endeavors with the assistance of a live-in nanny, au pair, or
housekeeper. Hector and Young became the parents of two
daughters born in 1985 and 1988.
To the contrary, the father actively pursued job leads in the
Miami area prior to the couple's relocation. Although there is a
complete conflict in the record between the parties as to who
broached the subject of the couple's relocation to Miami and the
circumstances under which they would relocate in terms of their
respective careers, it is significant that neither of these parties
ever testified that they ever agreed or expected the mother to
pursue her legal career while the father remained at home as
the full-time caregiver to their minor children. Both parties
agreed to relocate to Miami. Sometime in late 1987, the
father's business ventures began to suffer certain financial
reversals and the mother became bored with her practice in
New Mexico.
The father stayed behind in New Mexico until October 1989 in
order to complete the construction of a new house and to
remodel the couple's New Mexico home in order to enhance its
resale potential. During that summer, she studied for and took
the Florida Bar exam and landed a position with a mid-sized law
firm. In June 1989, the mother and her two minor daughters
arrived in Miami first.
It is significant to point out at this juncture, that it is undisputed
that from the time the minor children were brought to Miami in
1989 until the fall of 1993, the needs of the minor children were
attended to by a live-in housekeeper when they were not in
school during the day and by the mother upon her arrival from
work in the evenings. Thereafter, he renovated the home
which ultimately became the couple's second marital residence.
Thereafter, during the spring and summer of 1990, the father
spent his time repairing the couple's first marital residence in
Miami. After the father's move to Miami in the fall of 1989, he
studied for and passed the Florida contractor's examination.
Although the mother was earning a very decent income as an
attorney at the time, it was undisputed that this family was
operating with a negative cash flow.After the father's
renovations to the couple's second Miami residence were
completed and the family moved in, the mother testified that she
began to have serious discussions (which eventually escalated

into arguments) about the father's need to find gainful

employment.
The father saw his family during this fourteen month period
once every five weeks and according to the mother, only at her
insistence and pursuant to her arrangements for such family
reunions. The minor children were continuously being cared
for by the housekeeper/babysitter during the day and the
mother after work. During this time, the father spent
approximately fourteen months away from his family pursuing
buried gold in New Mexico on a treasure hunt. He also visited
his sick brother in Arkansas and later handled his brother's
estate matters upon his brother's demise. During this time, he
returned to New Mexico to attend to lingering matters involving
his prior businesses there and to make preparations for an
upcoming treasure hunt. During the remainder of 1990
through 1993, the father left the state and was frequently away
from the mother and minor children for months at a time.
Rather than pursue gainful employment to financially assist the
household and his minor children, the father turned his
attentions elsewhere.
When the children became ill or distressed during the middle of
the night, the mother was always the parent they looked to for
assistance or solace. The mother engaged in activities with the
children on a full-time basis on the weekends. The mother's
time with the children during the weekdays consisted of her
awakening, dressing, and having breakfast with them prior to
transporting them to school, and spending the early evening
hours with them prior to their bedtime. The children were in a
public school full-time between the hours of 8:30 a.m. and 2:003:00 p.m. The mother had employed a housekeeper (Hattie)
who came to the house each weekday between the hours of
noon and 8:00 p.m. to clean, pickup and babysit the children
after school. At that time, the couple no longer had a live-in
nanny or babysitter for the children. Even with the mother's
salary increase, the family remained steep in debt. When the
father finally returned to South Florida, in the fall of 1993, the
mother had accepted a partnership position with a large Florida
law firm at a salary of approximately $300,000 annually. 2
The father candidly conceded as much at trial. It must be reemphasized that at no time did the mother and father have any
mutually expressed or tacit agreement for the father to remain
unemployed. Approximately one month after the father's return
to the household in 1993, the mother asked the father for a
divorce because of his continued refusal to seek gainful
employment and due to his extramarital affair in New Mexico.
3
Consequently, this case simply did not involve the typical
scenario where two spouses, by mutual agreement, agreed for
one to remain at home to care for the children and the other
spouse to work outside of the home.
Upon the mother's arrival at the home, the father generally
absented himself. Although he steadfastly refused to make any
efforts to obtain employment, he did become more involved in
the activities of his two daughters, who by that time, were 8 and
5. Since both girls were in school full-time at this time, the

father's involvement with the girls' activities occurred primarily

Mondays through Fridays between the hours of 3:00 p.m. and
6:30 p.m., prior to the mother's arrival from work. Once the
mother announced to the father that she wanted a divorce, the
father began to spend less of his time away from Miami. 4
The trial court viewed this contention with some degree of
skepticism as it was entitled.The father nevertheless
maintained that he was the primary caretaker or Mr. Mom of
these two children in the three years preceding this dissolution
proceeding. 5 The father's concession is what prompted the
court to ultimately make inquiry as to why the father did not
seek employment or alternatively, why there was a need for a
full-time nanny:The trial court's skepticism or disbelief was not
at all unreasonable, given the father's admission that the nanny,
Hattie, had taken care of these children in large part during the
afternoon hours until their mother's arrival at home.
****
[Father's attorney]: Who picks the kids up?
She picks them up frequently. She does. If I am tied up,
whether it's a meeting or whatever, or if I go somewhere like
your office, way up in North Miami Beach, and I don't get back
in time and I thought I would, I can call Hattie and say, Hattie,
please pick up the children. [Father]: Either Hattie or I.
Typically, it's me.
[The Court]: Is Hattie there five days a week?
She cleans up after that. I eat with the children every day
typically at 6:30. We eat. The kids eat. She prepares the
dinners. She cleans the house in the afternoons. She
comes at noon every day. [Father]: Yes sir.
She'll draw a bath for Avery and she leaves at eight o'clock in
the evening five days a week.
Why don't you get a job.[The Court]: Maybe I'm missing
something.
Today, it's computer dominated and I'm computer illiterate.
That's my degree, but when I graduated, they did not have
computers. [Father]: Well, because my background is
architecture.
I, in talking to Larry Foreman, who was court appointed as the
career consultant, anticipated that I should go to graduate
school to acquire these skills that I'm lacking right now.
They like what I have to offer but their offices are basically all
computerized. They like me. I've gone on interviews.
Ms. Hector has a secretary that handles her whole life at the
office and in a sense I was the secretary that handled her whole
life at home and took care of the children.Previously, because
of the number of hours Ms. Hector worked, I filled in.
[The Court]: But you've got a nanny doing that.
They can drop off. Nannies can pick up. [Father]: No sir, I
don't believe you can buy parents.
[The Court]: Why [sic] do you need the nanny for, if you're there
doing it?
Typically, people that have incomes of over a quarter of a
million dollars or $300,000 can afford the luxury of having help,

hired help. I could do a lot of that. She cleans. [Father]:

She cooks.
I try to do meaningful, worthwhile things.I am not the kind of
person that sits around and watches soap operas.
[The Court]: Go ahead, counsel.
****
Given the undisputed large financial indebtedness of this
couple, the trial court's inquiry about the need to employ a fulltime nanny was both logical and practical under these
circumstances and certainly could have also been appropriately
posed to the mother if she had been recalcitrant about seeking
gainful employment to assist the family's financial situation.
Contrary to the father's suggestion on appeal, this inquiry by the
court is not evidence of gender bias. 6
II
A Given a choice between the mother, who maintained
constant steady employment throughout the marriage to support
the children (regardless of the amount of her income), and the
father who unilaterally and steadfastly refused to do the same,
the trial court's designation of the mother as custodial parent
cannot be deemed an abuse of discretion. Given the father's
skills and experience, the trial court was certainly entitled to
reasonably conclude that the father was employable upon his
return to Miami in 1993-one year after Hurricane Andrew literally
destroyed thousands of residences and commercial
establishments in South Dade County and building contractors
were in heavy demand. The trial court was obviously not
oblivious to the fact that the father was also a Florida licensed
contractor who had built homes in New Mexico and renovated
both of the parties' Florida marital residences. The trial court
concluded that the father was where he is largely because of
his own choice. We believe, that what the guardian was
attempting to convey was that the mother had shown a proclivity
to remain steadily employed, unlike the father who unilaterally
removed himself from the job market, although he was
employable and the family needed the additional income. We
do not believe that the guardian gave the mother the edge
simply because she earned a large salary. First of all, the
guardian noted that the mother had been the more economically
stable of the two parents throughout the marriage. In
recommending that the mother be named the primary custodial
parent, the guardian ad litem cited three factors, all of which we
find are supported by competent substantial evidence in the
record. part from this evidence, the court also had the report
and recommendations of the guardian ad litem upon which to
rely. 7 61.13(3)(c), Fla. Stat. (1995).See
The guardian ad litem observed:The second factor relied
upon by the guardian ad litem in recommending that the mother
be declared the primary custodial parent was the fact that the
mother had been a constant factor and dominant influence in
the children's lives and the father had not.
There have been times in the children's life [sic] when Bob has
been, for whatever reasons, away from the home for substantial
periods of time and Alice has been the dominant influence.

More recently, while she has been working, he has been

available at home more hours of the day than she has been, but
over a continuum of time, I believe that her presence has been
a more steady presence in the sense of available almost the
same time for the kids throughout the relationship, whereas Bob
has been intensely absent and intensely present.
Thus, there was no basis for the panel to overturn the trial
court's finding in this regard.61.13(3)(d), Fla. Stat. The record
evidence clearly supports the trial court's conclusion that the
mother had been the constant parent throughout the children's
lives. See That is, the trial court, in an effort to maintain
continuity, could have legitimately determined that the children's
best interests dictate that they remain with the parent who had
continuously been there to care for their needs throughout their
young lives rather than the parent who had devoted a
substantial amount of time with them perhaps only when it was
convenient and/or opportunistic to do so. In its determination
as to the best interests of the minor children, the trial court
obviously deemed it more important to assess the children's
time spent with each of the parents throughout the course of the
marriage and not merely focus on the years immediately
preceding the announcement of the dissolution action.
For that reason, the guardian, who is also a retired circuit court
judge, went so far as to recommend that the father receive
anger control counseling. The guardian ad litem testified that
he personally witnessed one of the father's outbursts of anger in
the presence of the children. The last factor cited by the
guardian ad litem, which tilted the scale in favor of the mother,
was the mother's superior ability to control her anger around the
children.
Nor can we conclude that the court's determination was
impermissibly influenced by gender bias against the father.
Given this substantial competent evidence in the record, we
cannot conclude that the trial court abused its discretion when it
awarded custody of the minor children to their mother.
We recognize that at times, it can be a very difficult and
agonizing call for the trial judge to make when both parents are
as loving and caring as the mother and father areCustody
determinations are perhaps the most sensitive and delicate
decisions that family court judges make. However, on
remand, the trial court should grant the father liberal and
frequent access to the children. For this reason, we affirm the
order awarding primary residential custody of the minor children
to the mother. As long as the trial court's decision is supported
by substantial competent evidence and is not based upon
legally impermissible factors such as gender bias, it must be
affirmed on appeal. Moreover, trial judges sitting as triers of
fact in these proceedings are not required to shed their common
sense and life's experiences when they don their black robes to
preside over these proceedings. Thus, the trial court, unlike
an appellate court, is entitled to rely, not only upon the record
evidence presented, but upon its mental impressions formed
about each of the parents and their respective parenting
strengths and weaknesses. Indeed, the trial court has the

unique advantage of meeting both parents prior to making its

decision. Nevertheless, once the trial court makes this
decision and the decision is supported by substantial competent
evidence, we recognize that the trial court's determination
should not be lightly second-guessed and overturned by an
appellate court merely reviewing the cold-naked record. in this
case.
III
Thus, we reverse these awards and remand for further
proceedings, including evidentiary hearings, if necessary. On
remand, the trial court should revisit these issues. Moreover,
the distribution of the parties' assets and liabilities was
inequitable and the award of attorney's fees to the father's
lawyer was insufficient. Canakaris, 382 So.2d at 1201-05.
Finally, we agree that the award of alimony to the father was
inadequate in light of his rehabilitative plan presented to the
court and the lifestyle established during the parties' marriage.

Affirmed in part and reversed and remanded in part.

I write separately only to express my strongly held view that,
despite all that has been said about the peripheral implications
of this case, the reality is that the pivotal issue involved in this
case can, and must, be resolved by going through the simple
exercise of examining the trial court's decision according to the
appropriate standard of review that this Court must follow.I
endorse and agree with the majority opinion.
Furthermore, the record does not reflect any abuse of
discretion by the trial court in reaching that decision.Simply
put, there is more than substantial competent evidence to
support the trial court's decision to name the mother as the
primary residential parent of the children in this case.
While there is probably also an appropriate quantum of
evidence that would have supported naming the father as the
primary residential parent, the trial court, after hearing and
weighing all of the evidence, determined that it was in the best
interest of the children to name the mother as the primary
residential parent.
Rather, as stated above, this Court's function is limited solely to
reviewing the decision of the trial court in light of the appropriate
standard of review.Clearly, this Court cannot second-guess the
decision of the trial court as, I respectfully suggest, the original
panel opinion did.
The following is a summary of various portions of the record
that support the trial court's decision: Such evidence includes
the testimony of the Guardian Ad Litem, the mother of the
children, several neighbors of the parties, as well as the father
himself. The record in this case is replete with substantial
competent evidence that supports the decision of the trial court.
While I do not believe that these negative factors should,
standing alone, prevent the father from being named the
primary residential parent, when viewed in the context of the
entire Notwithstanding that belief, I note that the record
contains negative testimony about the father's qualifications to
be the primary residential parent. As I indicated above, I

believe the record would also have supported the trial court if
the father had been named as the primary residential parent.
trial, as the trial judge would have viewed them, these negative
factors, when considered in connection with all of the preceding
testimony about the mother, clearly can be viewed as part of the
basis for the trial judge's conclusion that it would be in the best
interests of the children for the mother to be named as the
primary residential parent.
Solely for demonstrating what I believe to be the correctness of
the comments that I have expressed in the preceding
paragraph, the following is a brief summary of portions of the
record that reflect negatively on the father's ability to be named
the primary residential parent:
For all of the foregoing reasons, as well as the very cogent
discussion of the facts and law contained in the majority
opinion, I strongly agree that the original panel opinion rendered
by this Court on this case must be reversed and the decision of
the trial court, to name the mother as the primary residential
parent, must be affirmed.
I agree with the majority and write separately only to address
those portions of the dissents which rely on the original panel's
opinion.
Later in his testimony, during a lengthy narrative, he said: He
estimated the cost of this additional education at approximately
$30,000. He observed that the first two options would require
post-graduate education directed towards achieving a master's
degree. As concerned future employment, he testified that he
had three possible choices: 1) architecture, 2) construction, or
3) working in an entrepreneurial manner for himself. He also
recognized that he was confronted with the considerable task of
re-integrating himself into the labor force. During trial, Mr.
Young testified that he wanted to be the primary residential
parent for the children. On rehearing, Mr. Young has
embraced this reasoning, but the record reflects that this was
not his position below. Such a continuation would clearly be in
the best interest of the children. The original panel opinion
states that a trial court's decision as to which parent should be
awarded primary residential custody of the children should
attempt to preserve and continue the care taking roles that the
parties had established.
Not loses and everybody is unhappy and that's a winning
situation.Judge, you have a difficult assignment of figuring out,
you know, how to have-so everybody wins when the best
situation is sort of basically everybody loses in the sense that
nobody gets what they want.
I want to be with them at three o'clock when they get out until
they go to bed. I want to get a job that allows me to be with
them. Maybe the children should stay with Alice until I get it
done and the day I have the job they can come live with me. I
need help to do it and I want help to do it and I want to get it
done. [Another father] has been able to arrange his schedule
around his children and I just hope I can.
During closing argument, Mr. Young's lawyer followed up on the
same theme:(Emphasis added).

He does need to get a job. I don't think that it's an

unreasonable suggestion. I would adopt that suggestion.
[Robert] suggested an alternative.
***
I'm not a fan of temporary orders but certainly in this case it
might be one that begs out for a temporary order to allow him
an opportunity, without the children, without the responsibility for
the children, to get on his feet.Financially, right now, I'm not
certain I can come up with a plan but I am certain that there is a
way to accommodate it.
He might find someone who is willing to accommodate him.
He might get lucky. He needs to do that and I'll be the first to
admit it and he's not going to do it while the divorce is pending
and he's certainly not going to do it with two little children that
he has to care for starting at three o'clock every day but, if he's
willing and motivated, I think he can find a position that would
allow him to have more time with the children at least than a
9:00 to 5:00 position and maybe even more than that.
See Gupton v. Village Key A party cannot invite error at the
trial level then be heard to complain about it on appeal.
Indeed, the quoted portion of counsel's summation above is
found on page 531 of the trial transcript, and on page 532 the
trial judge designates Ms. Hector as the primary residential
parent. Moreover, in such a close case, this willingness to
give Ms. Hector primary custody may well have tipped the
scales in her favor. It is clear that neither Mr. Young nor his
lawyer were overly concerned with the continuity problem, as
they were both willing to surrender primary custody during the
proposed two year educational rehabilitation period. Mr.
Young's testimony, and his lawyer's summation, categorically
establish that the continuity argument adopted by the dissent
was not raised in the trial court. (Emphasis added). & Saw
Shop, Inc., 656 So.2d 475, 478 (Fla.1995)(defining the invited
error rule as follows: a party cannot successfully complain
about an error for which he or she is responsible or of rulings
that he or she has invited the trial court to make.); Held v.
Held, 617 So.2d 358 (Fla. 4th DCA 1993); Poller v. First Virginia
Mortg. and Real Estate Inv. Trust, 471 So.2d 104 (Fla. 3d DCA
1985).
It is therefore clear that the final judgment does not impede the
continuity of the children's lives, nor does it significantly alter
the care taking roles of their parents. If these objectives
interfere with what the children have come to know, they will be
equally obstructive if Mr. Young were designated the primary
residential parent. In short, as far as the children are
concerned, under Option 1 of the final judgment, nothing in their
lives will change unless Mr. Young becomes unavailable due to
his educational, or, ultimately, career objectives. This also will
remain the same. When Ms. Hector came home in the
evening he would either retire to his room or leave the house,
and the children would spend time with their mother, who would
talk with and read to them. Nothing in the final judgment will
change this. He further testified that he would have dinner
with the children on an almost daily basis. Under the final

judgment he would still be able to do that. He indicated that

either he or the housekeeper would pick up the children at
school and he would then share a variety of after-school
activities with them. Nothing in the final judgment would
change his during-school activities. He testified that while
the children were in school he would return home and either
work on his upcoming divorce, manage his stock market
accounts or perform household errands. Under the final
judgment, this process would remain unchanged. He and Ms.
Hector would share the responsibility of taking the children to
school. Mr. Young testified that Ms. Hector was the parent
who awakened the children, dressed them and gave them
breakfast. Even if the continuity argument had been made
and properly preserved, a close analysis of the evidence
establishes that the trial judge's decision does not frustrate that
goal.
As the panel opinion, which has not in my view been
successfully challenged by any of the contrary briefs or
opinions,I remain convinced by the panel decision and by the
dissents of Judge Nesbitt and Judge Goderich that the trial
court's award of the children's primary physical residence to
the mother is unsupported by any cognizable, equitable
consideration presented by the record. 1 2.03(6). See
Principles of the Law of Family Dissolution: Analysis and
Recommendations (Am. Law Inst.1998)(Tentative Draft No. 3,
Part I) demonstrates, the children's parents, who know and
care most about their welfare, had themselves established an
arrangement prior to the dissolution as a part of which, upon
any fair assessment, the father was the primary caretaker.
2
2.09(1). See Principles of the Law of Family Dissolution:
Analysis and Recommendations (Am. Law Inst.1998) (Tentative
Draft No. 3, Part I) There is simply no reason for a court to
tamper with what has worked so well. As everyone agrees,
under that regime, if not because of it, their girls have turned out
to be well-behaved, well-adjusted, and accomplished young
women who love both their parents: just what we all devoutly
wish for and from our children. 3 61.13(3)(d), Fla. Stat.
(1995). In many areas, the law properly recognizes the
undesirability of disrupting the children's circumstances any
more than is already necessarily required by their parents'
separation and divorce. This is not only because it is almost
always better to preserve a known good rather than to risk what
the unknown future may bring, see Rumph v. V.D., 667 So.2d
998, 998 (Fla. 3d DCA 1996)(Schwartz, C.J., specially
concurring), but, much more important, because the children
are themselves entitled to stability in their lives and routine
which would be compromised by any purposeless change in
their caregiver. 4 See Mize v. Mize, 621 So.2d 417 (Fla.1993)
5
When, as here, the children have manifestly benefitted from
an arrangement established before the judgment, the same rule
should apply. Belford v. Belford, 159 Fla. 547, 32 So.2d 312
(1947); Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA), cert. denied,
166 So.2d 591 (Fla.1964). This principle finds special
application in the rule that modifications of the custody

provisions of a final judgment may be made only when there

has been a change of circumstances adversely affecting the
welfare of the children. (relocation of custodial parent); Pino v.
Pino, 418 So.2d 311 (Fla. 3d DCA 1982)(importance of
children's remaining in home).
What happens when that rule is not applied is illustrated by the
result in this very case, in which it was necessary below and
has been found necessary on appeal to resort to other,
inadmissible, factors to justify the so-called exercise of
discretion by the trial court and the affirmance of that result by
this one.6
A. The male attorney's claim for custody would have been
virtually laughed out of court, and there is no realistic possibility
that the mother architect would have actually lost her
children. I believe that this is shown by contemplating a
situation in which the genders of the hard working and high
earning lawyer and the stay at home architect were reversed,
but everything else remained the same. This case, however,
permits no other conclusion. It is usually extremely difficult to
gauge the underlying motivations of any human being and one
resists even more the assignment of an unworthy or
impermissible reason to any judge's exercise of her judicial
functions. In my opinion, there is no question whatever that the
result below was dictated by the gender of the competing
parties. 7 (The fact, so heavily emphasized by members of the
majority, that the hypothetical mother architect might have
sought employment after the dissolution, as usually occurs, and
that her time with the children would have therefore diminished,
would have made no difference either.)8 It is, at best, naive in
the extreme to suggest, let alone find, that the result below was
not dictated by the evil of gender bias.
B. See Rumph, 667 So.2d at 998. As I might do myself, one
may agree with this assessment of the parties while profoundly
disagreeing, as I certainly do, with the idea that any such
consideration is a proper basis for decision-making in this field.
In the end, after a meticulous inquiry into the father's long past
and non-parental conduct which few mortals could withstand, it
bases its determination that the discretion of the trial court was
properly exercised upon the belief that the record shows (or that
the trial court might have properly believed) that Mr. Young is
less sincere, less well motivated, less admirable and generally a
worse person and a worse parent than Ms. Hector. By
rejecting the obvious but unacceptable in its search for a basis
for the result below, the majority has, in my opinion, relied upon
something even worse.
Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) But
judicial discretion may properly be exercised only on the basis
of factors which are legally pertinent to the issue involved. It is
of course true, as the majority repeatedly emphasizes, that a
custody decision is one within the discretion of the trial court. 9
Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). We had, I thought,
come a long way from the time when a parent could be denied
her parental rights-or, more properly stated, when the children
could be deprived of their rights to having only their interests

considered-merely because a judge may disapprove of her

standards of conduct, much less of her character. Its
resolution, in turn, cannot be based on a subjective assessment
of the worth of the contending parties so long as, as was
conclusively demonstrated in this case, the conduct and
character traits referred to have not impacted upon the children.
; see Farrior v. Farrior, 736 So.2d 1177 (Fla.1999)[24 FLW
S297]. In this area, that issue is the children's best interests.
10
Apparently, I was mistaken.11 In a society of law and not
persons, unknowable and unjudgable questions of character,
personal worth, and even actual misconduct, if irrelevant to the
issue under consideration, Although only with the best of
intentions, and fortunately in a case in which children will thrive
in the care of either parent (or both of them), the majority has
perhaps unwittingly provided that custody decisions are subject
to the personal views of a particular judge, who sits as a
Dostoevskian Grand Inquisitor, the effectuation of whose own
notions of right and wrong are subject to objective review by no
one on this earth. See Anderson v. Anderson, 736 So.2d 49,
53 n. 1 (Fla. 5th DCA 1999)[24 FLW D1273, D1275 n. 1]
(challenging Dinkel). 12 Results on indistinguishable operative
facts should not vary from courtroom to courtroom according to
the moral preferences of the trial judge (or appellate panel)
assigned by the luck of the draw to hear the case. See S.B. v.
D.H., 736 So.2d 766, 767 (Fla. 2d DCA 1999)[24 FLW D1563,
1564] (There is no Solomon within our judiciary who can
accurately predict who would be the better father for this
child.). should not govern decision making in this area or any
other. 13 Farrior v. Farrior, 736 So.2d at 1179 [24 FLW at S298]
(Pariente, J., concurring).14 Because the majority's decision is
to the contrary of these propositions, I believe that it is very
wrong.
I respectfully dissent.
The heightened interest in the case prompts me to discuss the
determinative factors which originally caused me to vote for
reversal and against rehearing en banc.I entirely agree with
the original decision and opinion of this court, filed June 24,
1998 at 23 Fla. L. Weekly D1529, 740 So.2d 1154.
Section 61.13(2)(b)1, Florida Statutes (1995), in part provides
the father of the child shall be given the same consideration as
the mother in determining the primary residence of a child
irrespective of the age or sex of the child. This salient factor
was wholly ignored by the trial court. See Farrell v. Farrell,
555 So.2d 1260, 1261 (Fla. 3d DCA 1989); Berhow v. Crow,
423 So.2d 371, 373 (Fla. 1st DCA 1982); In re Marriage of Feig,
296 Ill.App.3d 405, 230 Ill.Dec. 685, 694 N.E.2d 654, 657
(1998); In re Marriage of Jackson, 682 N.E.2d 549
(Ind.Ct.App.1997); Wright v. Stovall, No. 01A01-9701-CV00040, 1997 WL 607508, at *5 (Tenn.Ct.App. Oct.3, 1997).
Acquiescence to the child custody arrangement can and has
been found to be an important factor of various aspects of child
custody problems. The arrangement began in the fall of 1993
and continued until the 1996 dissolution proceeding which led to
the husband's summary eviction from the marital home. As

the wife's law practice grew and prospered (she was working 11
and 12 hour days and was frequently gone overnight), she
relied more and more upon the husband, who accepted the
responsibility for the care and needs of the girls. The record
demonstrates that both the mother and the father of the children
are completely and entirely fit and worthy (as the trial court
found) to serve as primary residential parent.
Ayyash v. Ayyash, 700 So.2d 752, 754 n. 3 (Fla. 5th DCA
1997). The Fifth District has noted that [e]ven though [the
tender years] doctrine was overturned by the legislature's
gender neutral policy, there remains a temptation for many
judges to consider the right to custody as the mother's to lose
and unless her fitness is legitimately challenged, the father's
right of equal consideration is often ignored. Id. at 753. In
Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th DCA 1995), the
Fourth District observed that the tender years doctrine was
impermissible as it used gender as a basis for awarding
custody.
It is extremely unlikely that any circuit judge in Florida would
have asked the same question of the mother of young children
whose husband was then earning a substantial annual
income. For example, at one point in the proceeding he asked
the husband, Maybe there's something I don't understand-why
don't you get a job? In this proceeding the trial judge totally
ignored the gender neutral policy.
But there is little or no correlation between being the money
maker or between being wealthy or not; in order to make one
an effective parent.Sub silentio, this court like the trial court
continues to pillory the father because he is not the substantial
bread winner in the family.
It occurs to me that both the children and the societal interest
are better served by placement with a natural parent who is
available. Such holding necessarily implies that children
therefore will be substantially or in part reared by a surrogate
parent. By today's decision, the court remains aligned with the
traditional view that a mother will not lose her entitlement to
become the primary residential parent unless her unfitness is
demonstrated; no matter how actively she is engaged outside
of and away from the home, even though the other parent is fit
and willing to serve in that capacity.
Where parents themselves have established an arrangement
(which they do not either dispute,
contradict or refute) which supports the children's best intereststhere is no reason for the courts to interfere.Given the parties'
own conduct toward the care and rearing of these children it
leaves no doubt that their best interests would be that they
remain with their primary care giver; here their natural father.
I therefore dissent with the child custody dispute but agree with
reversal of the financial issues, because that portion of the
judgment is skewed as the rest.
GODERICH, J. (dissenting):
It is apparent that the trial court also abused its discretion by
awarding primary residential custody of the minor children to the
parent who has been working long hours as a senior litigation

partner in one of Miami's top law firms as opposed to the parent

who has not worked outside of the home for the three years
preceding the filing of the dissolution action. It is
incomprehensible how the majority of the en banc panel can
agree that the trial court abused its discretion in virtually every
final ruling it made, except as to its ruling on the award of
primary residential custody. Young v. Hector, 23 Fla. L.
Weekly D1529, 740 So.2d 1158 (Fla. 3d DCA 1998). I
respectfully dissent for the reasons expressed in the panel
opinion.
As a result of this caretaking arrangement, the mother was free
to dedicate herself to her legal career by working extremely long
hours Moreover, there is no doubt that the mother benefited
from this arrangement (and possibly that is why she allowed it to
continue). For example, although the parties had separated,
the mother permitted the husband to live in the marital home
and to continue his role as a stay-at-home parent. Although it
may be true that the mother did not expressly agree, the record
demonstrates that the mother nonetheless acquiesced to this
arrangement by allowing it to continue for three years. The
majority opinion focuses on the fact that the parties did not
mutually agree that the father would stay at home to care for the
children. 1 Also, the record indicates that the children also
benefited from their father's role as the primary caretaker since
he was actively involved in their school and after-school
activities.without having to worry about whether the minor
children's emotional needs were being met.
The majority opinion claims that Shortly thereafter, the trial
court also stated: Why [sic] do you need the nanny for, if you're
there doing it? Why don't you get a job. At one point, the
trial court, while questioning the father as to the nanny's role,
stated to the father: Maybe I'm missing something. Further, I
believe that gender played a role in the trial court's decision,
and continues to play a role in this Court's decision.
Given the undisputed large financial indebtedness of this
couple, the trial court's inquiry about the need to employ a fulltime nanny was both logical and practical under these
circumstances and certainly could have also been appropriately
posed to the mother if she had been recalcitrant about seeking
gainful employment to assist the family's financial situation.this
inquiry by the court is not evidence of gender bias.
(Maj. op. at 1159). Moreover, the record indicates that it was
the mother, not the father, who employed the nanny. Further, I
find it extremely hard to believe that if the roles were reversed
any trial judge would question a mother's lack of employment or
the employment of a nanny when the father earns over
$300,000 per year. (Maj. op. at 1162). During the trial court's
exchange with the husband, there is nothing that would indicate
that the trial court was concerned with the parties' financial
condition. I do not agree with the majority's observation that
these statements had nothing to do with gender bias, but rather
was a result of the parties' financial condition. (Maj. op. at
1162).

There are certain things that money cannot buy and that a
nanny cannot provide, such as the attention of caring parents.
The record clearly establishes that the minor children's basic
necessities were more than taken care of. Further, this was
not a family in which the working parent was earning $30,000
and any additional sums earned by the other parent would have
been helpful to provide the children with basic necessities such
as food, clothing, and shelter. The record clearly
demonstrates that with the husband's present skills, he did not
have the ability to earn a substantial amount of money. The
majority opinion also suggests that the father should have
obtained gainful employment in order to financially assist the
household and minor children in light of the parties' financial
condition.
Instead, the majority would have probably suggested that the
father restructure his debt, sell assets, and/or cut down on
expenses so that the mother could continue the caretaking role
that was established during the marriage.Once again, I do not
believe that if the roles were reversed (a father who earns over
$300,000 per year and a non-working mother), the majority
would have suggested that the children would have been better
off if the mother would have attained employment when her
earning potential is limited and the father already makes over
$300,000 per year.
Further, in light of the child support guidelines, a parent's
financial resources should never be considered as a
determinative factor in deciding which parent should be
awarded primary residential custody of the minor children.
Once again, if the roles were reversed, I believe that the
guardian ad litem would not have considered economical
stability as a determinative factor. First, the guardian
focused on the fact that the mother has been more
economically stable throughout the marriage. The majority
opinion also addresses the three determinative factors that the
guardian ad litem looked at in recommending that the mother be
named the primary residential parent.
Further, the fact that the father had been away from the family
should not be a determinative factor when taking into
consideration that the father has been the primary caretaker
since the fall of 1993. Therefore, the reasons for the father's
absence from the home were valid. However, what the
majority has failed to state is that it may not have been so
strange since the mother's parents and trial counsel also
invested in this project. The majority relies on the treasure
hunt to make it appear as if the treasure hunt was a crazy or
weird notion. Finally, the father was in New Mexico from June
1992 to September 1993 in order to direct a treasure hunt
project. Second, the husband, was away for three to four
weeks to be with his ill brother, who died shortly after he arrived,
and to help settle his brother's estate. First, when the parties
decided to move to Miami, the father stayed in New Mexico for
approximately three months in order to move the family's
possessions to Miami and to make improvements to the marital
home so that the parties could sell the home at its highest

possible price. I feel that it is important to explain why the

father had been away from the home. The guardian ad litem
focused on the fact that the father had been away from the
home for substantial periods of time The second
determinative factor was that the mother has been the more
constant factor throughout the entire relationship.
However, the father's anger was based on the financial
inequities of the situation, a problem that should be completely
resolved based on the majority's decision to reverse and
remand all financial determinations made by the trial court,
including the insufficient award of alimony to the father and the
inequitable distribution of the marital assets and liabilities. I
agree with the guardian ad litem that being able to control anger
is an important factor in deciding child custody issues. The
guardian ad litem testified that the father would say things in
the presence of the children that indicated to me his anger and
his displeasure at what he perceives to be the financial
inequities of the situation Finally, the third determinative
factor was that the mother controls her anger better around the
kids.
Finally, I would like to note that the scenario Because the
present situation is not the norm, this may be why it is difficult to
see that the trial court abused its discretion by not awarding
primary residential custody of the minor children to the father,
the parent who has not worked outside of the home for the past
three years in order to care for the minor children. In situations
where families are fortunate enough to have one parent stay at
home to care for the children, it is usually the mother.
contained in the present case is unique.
For all these reasons, I dissent as to the majority's decision as
to the child custody issue, but agree with the majority, as I
originally did in the panel opinion, that the financial issues must
be reversed and remanded for further proceedings.
Facts:

At the time of their marriage in 1982, both the father

and mother were successful professionals in New Mexico.
o
Father was an architectural designer /
entrepreneur and mother was an attorney.

They became the parents of two daughters born in

1985 and 1988.

After the birth of their children, both parents continued

to work outside of the home and pursued their respective
professional endeavors with the assistance of a live-in nanny.

They later agreed to move to Miami after the fathers

business began to suffer and the mother became bored with her
practice.

Once in Miami, the mother began to have serious

discussions (which eventually escalated into arguments) about
the fathers need to find gainful employment.
o
Instead, he never got a job, and from 19901993, was frequently out of the state and away from the family
(brother was ill, took care of some things in NM, went on a
treasure hunt).

o
They had a live-in nanny during this time as
well.

When the father finally returned to South Florida, in the

fall of 1993, the mother had accepted a partnership position with
a large Florida law firm at a salary of approximately $300,000
annually.

That year she asked the father for a divorce. After this,
the father spent less of his time away from the family, but
remained unemployed.

Father claimed he was Mr. Mom.

History: The trial court awarded custody of both kids to the
mother.
The court stated, Maybe Im missing something. Why
dont you get a job?
o Father replied that architecture nowadays is all
computerized and he was computer illiterate.
It was also skeptical that he was Mr. Mom when they
had a nanny.
The father argued that the court engaged in
impermissible gender bias.
Issue: Whether the trial court abused its discretion when it
determined that the best interests of the two minor children
dictated that their mother be designated their primary custodial
parent.
Holding: No. Affirmed.
Reasoning:
In recommending that the mother be named the primary
custodial parent, the guardian ad litem cited three
factors:
o The guardian noted that the mother had been
the more economically stable of the two
parents throughout the marriage;
o The mother had been a constant factor and
dominant influence in the childrens lives and
the father had not; and
o The mothers superior ability to control her
anger around the children.
The court felt that the trial court decision was supported
by substantial competent evidence and held that there
was no abuse of discretion.
Dissent:
Clearly gender bias if facts were reversed and father
was the attorney and mother was the stay at home
architect, father wouldve been laughed out of court if
he sought custody.
Additionally, no one would question why a woman
wasnt working if her husband was making $300,000.
Mother also acquiesced in father staying at home.

Bldg. Act), Sec 12-16, 22-24, RA 9710 (Magna Carta of

Women)
Case
Bradwell v Illinois
BRADWELL v. THE STATE.
83 U.S. 130 (16 Wall. 130, 21 L.Ed. 442)Decided: NotFound
opinion, MILLER
IN error to the Supreme Court of the State of Illinois.
Mrs. Myra Bradwell, residing in the State of Illinois, made
application to the judges of the Supreme Court of that State for
a license to practice law. She accompanied her petition with the
usual certificate from an inferior court of her good character, and
that on due examination she had been found to possess the
requisite qualifications. Pending this application she also filed
an affidavit, to the effect 'that she was born in the State of
Vermont; that she was (had been) a citizen of that State; that
she is now a citizen of the United States, and has been for
many years past a resident of the city of Chicago, in the State
ofIllinois.' And with this affidavit she also filed a paper asserting
that, under the foregoing facts, she was entitled to the license
prayed for by virtue of the second section of the fourth article of
the Constitution of the United States, and of the fourteenth
article of amendment of that instrument.
The statute of Illinois on the subject of admissions to the bar,
enacts that no person shall be permitted to practice as an
attorney or counsellor-at-law, or to commence, conduct, or
defend any action, suit, or complaint, in which he is not a party
concerned, in any court of record within the State, either by
using or subscribing his own name or the name of any other
person, without having previously obtained a license for that
purpose from some two of the justices of the Supreme Court,
which license shall constitute the person receiving the same an
attorney and counsellor-at-law, and shall authorize him to
appear in all the courts of record within the State, and there to
practice as an attorney and counsellor-at-law, according to the
laws and customs thereof.
On Mrs. Bradwell's application first coming before the court, the
license was refused, and it was stated as a sufficient reason
that under the decisions of the Supreme Court of Illinois, the
applicant'as a married woman would be bound neither by her
express contracts nor by those implied contracts which it is the
policy of the law to create between attorney and client.' After the
announcement of this decision, Mrs. Bradwell, admitting that
she was a married womanthough she expressed her belief
that such fact did not appear in the recordfiled a printed
argument in which her right to admission, notwithstanding that
fact, was earnestly and ably maintained. The court thereupon
gave an opinion in writing. Extracts are here given:
'Our statute provides that no person shall be permitted to
practice as an attorney or counsellor at law without having
previously obtained a license for that purpose from two of the
X. E. Exercise of profession Art. 73 FC compared with Art. justices of the Supreme Court. By the second section of the act,
117 NCC, RA 7192 (Women in Development and Nation- it is provided that no person shall be entitled to receive a license
until he shall have obtained a certificate from the court of some

county of his good moral character, and this is the only express
limitation upon the exercise of the power thus intrusted to this
court. In all other respects it is left to our discretion to establish
the rules by which admission to this office shall be determined.
But this discretion is not an arbitrary one, and must be held
subject to at least two limitations. One is, that the court should
establish such terms of admission as will promote the proper
administration of justice; the second, that it should not admit any
persons or class of persons who are not intended by the
legislature to be admitted, even though their exclusion is not
expressly required by the statute.
'The substance of the last limitation is simply that this important
trust reposed in us should be exercised in conformity with the
designs of the power creating it.
'Whether, in the existing social relations between men and
women, it would promote the proper administration of justice,
and the general well-being of society, to permit women to
engage in the trial of cases at the bar, is a question opening a
wide field of discussion, upon which it is not necessary for us to
enter. It is sufficient to say that, in our opinion, the other implied
limitation upon our power, to which we have above referred,
must operate to prevent our admitting women to the office of
attorney at law. If we were to admit them, we should be
exercising the authority conferred upon us in a manner which,
we are fully satisfied, was never contemplated by the
legislature.
'It is to be remembered that at the time this statute was enacted
we had, by express provision, adopted the common law of
England, and, with three exceptions, the statutes of that country
passed prior to the fourth year of James the First, so far as they
were applicable to our condition.
'It is to be also remembered that female attorneys at law were
unknown in England, and a proposition that a woman should
enter the courts of Westminster Hall in that capacity, or as a
barrister, would have created hardly less astonishment than one
that she should ascend the bench of bishops, or be elected to a
seat in the House of Commons.
'It is to be further remembered, that when our act was passed,
that school of reform which claims for women participation in the
making and administering of the laws had not then arisen, or, if
here and there a writer had advanced such theories, they were
regarded rather as abstract speculations than as an actual basis
for action.
'That God designed the sexes to occupy different spheres of
action, and that it belonged to men to make, apply, and execute
the laws, was regarded as an almost axiomatic truth.
'In view of these facts, we are certainly warranted in saying that
when the legislature gave to this court the power of granting
licenses to practice law, it was with not the slightest expectation
that this privilege would be extended to women.'
The court having thus denied the application, Mrs. Brad-well
brought the case here as within the twenty-fifth section of the
Judiciary Act, or the recent act of February 5th, 1867,

amendatory thereto; the exact language of which may be seen

in the Appendix.
Mr. Matthew Hale Carpenter, for the plaintiff in error:
The question does not involve the right of a female to vote. It
presents a narrow matter:
Can a female citizen, duly qualified in respect of age, character,
and learning, claim, under the fourteenth amendment, 1 the
privilege of earning a livelihood by practicing at the bar of a
judicial court?
The original Constitution said:
'The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.'
Under this provision each State could determine for itself what
the privileges and immunities of its citizens should be. A citizen
emigrating from one State to another carried with him, not the
privileges and immunities he enjoyed in his native State, but
was entitled, in the State of his adoption, to such privileges and
immunities as were enjoyed by the class of citizens to which he
belonged by the laws of such adopted State.
But the fourteenth amendment executes itself in every State of
the Union. Whatever are the privileges and immunities of a
citizen in the State of New York, such citizen, emigrating, carries
them with him into any other State of the Union. It utters the will
of the United States in every State, and silences every State
constitution, usage, or law which conflicts with it. If to be
admitted to the bar, on attaining the age and learning required
by law, be one of the privileges of a white citizen in the State of
New York, it is equally the privilege of a colored citizen in that
State; and if in that State, then in any State. If no State may
'make or enforce any law' to abridge the privileges of a citizen, it
must follow that the privileges of all citizens are the same.
Does admission to the bar belong to that class of privileges
which a State may not abridge, or that class of political rights as
to which a State may discriminate between its citizens?
It is evident that there are certain 'privileges and immunities'
which belong to a citizen of the United States as such;
otherwise it would be nonsense for the fourteenth amendment
to prohibit a State from abridging them. I concede that the right
to vote is not one of those privileges. And the question recurs
whether admission to the bar, the proper qualification being
possessed, is one of the privileges which a State may not deny.
In Cummings v. Missouri, 2 this court say:
'The theory upon which our political institutions rest is, that all
men have certain inalienable rightsthat among these are life,
liberty, and the pursuit of happiness; and that in the pursuit of
happiness all avocations, all honors, all positions, are alike open
to every one, and that in the protection of these rights all are
equal before the law. Any deprivation or suspension of any of
these rights for past conduct is punishment, and can be in no
otherwise defined.'
In Ex parte Garland, 3 this court say:
'The profession of an attorney and counsellor is not like an
office created by an act of Congress, which depends for its
continuance, its powers, and its emoluments upon the will of its

creator, and the possession of which may be burdened with any

conditions not prohibited by the Constitution. Attorneys and
counsellors are not officers of the United States; they are not
elected or appointed in the manner prescribed by the
Constitution for the election and appointment of such officers.
They are officers of the court, admitted as such by its order,
upon evidence of their possessing sufficient legal learning and
fair private character. . . . The order of admission is the
judgment of the court, that the parties possess the requisite
qualifications as attorneys and counsellors, and are entitled to
appear as such and conduct causes therein. From its entry the
parties become officers of the court, and are responsible to it for
professional misconduct. They hold their office during good
behavior, and can only be deprived of it for misconduct,
ascertained and declared by the judgment of the court, after
opportunity to be heard has been offered.' 4
It is now settled by numerous cases, 5 that the courts in
admitting attorneys to, and in expelling them from, the bar, act
judicially, and that such proceedings are subject to review on
writ of error or appeal, as the case may be.
From these cases the conclusion is irresistible, that the
profession of the law, like the clerical profession and that of
medicine, is an avocation open to every citizen of the United
States. And while the legislature may prescribe qualifications for
entering upon this pursuit, they cannot, under the guise of fixing
qualifications, exclude a class of citizens from admission to the
bar. The legislature may say at what age candidates shall be
admitted; may elevate or depress the standard of learning
required. But a qualification, to which a whole class of citizens
never can attain, is not a regulation of admission to the bar, but
is, as to such citizens, a prohibition. For instance, a State
legislature could not, in enumerating the qualifications, require
the candidate to be a white citizen. This would be the exclusion
of all colored citizens, without regard to age, character, or
learning. Yet no sound mind can draw a distinction between
such an act and a custom, usage, or law of a State, which
denies this privilege to all female citizens, without regard to age,
character, or learning. If the legislature may, under pretence of
fixing qualifications, declare that no female citizen shall be
permitted to practice law, it may as well declare that no colored
citizen shall practice law; for the only provision in the
Constitution of the United States which secures to colored male
citizens the privilege of admission to the bar, or the pursuit of
the other ordinary avocations of life, is the provision that 'no
State shall make or enforce any law which shall abridge the
privileges or immunities of a citizen.' And if this provision does
protect the colored citizen, then it protects every citizen, black or
white, male or female.
Now, Mrs. Bradwell is a citizen of the United States, and of the
State of Illinois, residing therein; she has been judicially
ascertained to be of full age, and to possess the requisite
character and learning.
Still admission to the bar was denied her, not upon the ground
that she was not a citizen; not for want of age or qualifications;

not because the profession of the law is not one of those

avocations which are open to every American citizen as matter
of right, upon complying with the reasonable regulations
prescribed by the legislature; but first upon the ground that
inconvenience would result from permitting her to enjoy her
legal rights in this, to wit, that her clients might have difficulty in
enforcing the contracts they might make with her, as their
attorney, because of her being a married woman; and, finally, on
the ground of her sex, merely.
Now, the argument ab inconvenienti, which might have been
urged with whatever force belongs to it, against adopting the
fourteenth amendment in the full scope of its language, is futile
to resist its full and proper operation, now that it has been
adopted. But that objection is really without force; for Mrs.
Bradwell, admitted to the bar, becomes an officer of the court,
subject to its summary jurisdiction. Any malpractice or
unprofessional conduct towards her client would be punishable
by fine, imprisonment, or expulsion from the bar, or by all three.
Her clients would, therefore, not be compelled to resort to
actions at law against her. The objection arising from her
coverture was in fact abandoned, in its more full consideration
of the case, by the court itself; and the refusal put upon the fact
that the statute of Illinois, interpreted by the light of early days,
could not have contemplated the admission of any woman,
though unmarried, to the bar. But whatever the statute of Illinois
meant, I maintain that the fourteenth amendment opens to
every citizen of the United States, male or female, black or
white, married or single, the honorable professions as well as
the servile employments of life; and that no citizen can be
excluded from any one of them. Intelligence, integrity, and honor
are the only qualifications that can be prescribed as conditions
precedent to an entry upon any honorable pursuit or profitable
avocation, and all the privileges and immunities which I
vindicate to a colored citizen, I vindicate to our mothers, our
sisters, and our daughters. The inequalities of sex will
undoubtedly have their influence, and be considered by every
client desiring to employ counsel.
There may be cases in which a client's rights can only be
rescued by an exercise of the rough qualities possessed by
men. There are many causes in which the silver voice of woman
would accomplish more than the severity and sternness of man
could achieve. Of a bar composed of men and women of equal
integrity and learning, women might be more or less frequently
retained, as the taste or judgment of clients might dictate. But
the broad shield of the Constitution is over them all, and
protects each in that measure of success which his or her
individual merits may secure.
No opposing counsel.
Mr. Justice MILLER delivered the opinion of the court.
The record in this case is not very perfect, but it may be fairly
taken that the plaintiff asserted her right to a license on the
grounds, among others, that she was a citizen of the United
States, and that having been a citizen of Vermont at one time,

she was, in the State of Illinois, entitled to any right granted to

citizens of the latter State.
The court having overruled these claims of right founded on the
clauses of the Federal Constitution before referred to, those
propositions may be considered as properly before this court.
As regards the provision of the Constitution that citizens of each
State shall be entitled to all the privileges and immunities of
citizens in the several States, the plaintiff in her affidavit has
stated very clearly a case to which it is inapplicable.
The protection designed by that clause, as has been repeatedly
held, has no application to a citizen of the State whose laws are
complained of. If the plaintiff was a citizen of the State of Illinois,
that provision of the Constitution gave her no protection against
its courts or its legislation.
The plaintiff seems to have seen this difficulty, and attempts to
avoid it by stating that she was born in Vermont.
While she remained in Vermont that circumstance made her a
citizen of that State. But she states, at the same time, that she
is a citizen of the United States, and that she is now, and has
been for many years past, a resident of Chicago, in the State of
Illinois.
The fourteenth amendment declares that citizens of the United
States are citizens of the State within which they reside;
therefore the plaintiff was, at the time of making her application,
a citizen of the United States and a citizen of the State of
Illinois.
We do not here mean to say that there may not be a temporary
residence in one State, with intent to return to another, which
will not create citizenship in the former. But the plaintiff states
nothing to take her case out of the definition of citizenship of a
State as defined by the first section of the fourteenth
amendment.
In regard to that amendment counsel for the plaintiff in this court
truly says that there are certain privileges and immunities which
belong to a citizen of the United States as such; otherwise it
would be nonsense for the fourteenth amendment to prohibit a
State from abridging them, and he proceeds to argue that
admission to the bar of a State of a person who possesses the
requisite learning and character is one of those which a State
may not deny.
In this latter proposition we are not able to concur with counsel.
We agree with him that there are privileges and immunities
belonging to citizens of the United States, in that relation and
character, and that it is these and these alone which a State is
forbidden to abridge. But the right to admission to practice in the
courts of a State is not one of them. This right in no sense
depends on citizenship of the United States. It has not, as far as
we know, ever been made in any State, or in any case, to
depend on citizenship at all. Certainly many prominent and
distinguished lawyers have been admitted to practice, both in
the State and Federal courts, who were not citizens of the
United States or of any State. But, on whatever basis this right
may be placed, so far as it can have any relation to citizenship
at all, it would seem that, as to the courts of a State, it would

relate to citizenship of the State, and as to Federal courts, it

would relate to citizenship of the United States.
The opinion just delivered in the Slaughter-House
Cases 6 renders elaborate argument in the present case
unnecessary; for, unless we are wholly and radically mistaken in
the principles on which those cases are decided, the right to
control and regulate the granting of license to practice law in the
courts of a State is one of those powers which are not
transferred for its protection to the Federal government, and its
exercise is in no manner governed or controlled by citizenship
of the United States in the party seeking such license.
It is unnecessary to repeat the argument on which the judgment
in those cases is founded. It is sufficient to say they are
conclusive of the present case.
JUDGMENT AFFIRMED.
Mr. Justice BRADLEY:
I concur in the judgment of the court in this case, by which the
judgment of the Supreme Court of Illinois is affirmed, but not for
the reasons specified in the opinion just read.
The claim of the plaintiff, who is a married woman, to be
admitted to practice as an attorney and counsellor-at-law, is
based upon the supposed right of every person, man or woman,
to engage in any lawful employment for a livelihood. The
Supreme Court of Illinois denied the application on the ground
that, by the common law, which is the basis of the laws of
Illinois, only men were admitted to the bar, and the legislature
had not made any change in this respect, but had simply
provided that no person should be admitted to practice as
attorney or counsellor without having previously obtained a
license for that purpose from two justices of the Supreme Court,
and that no person should receive a license without first
obtaining a certificate from the court of some county of his good
moral character. In other respects it was left to the discretion of
the court to establish the rules by which admission to the
profession should be determined. The court, however, regarded
itself as bound by at least two limitations. One was that it should
establish such terms of admission as would promote the proper
administration of justice, and the other that it should not admit
any persons, or class of persons, not intended by the legislature
to be admitted, even though not expressly excluded by statute.
In view of this latter limitation the court felt compelled to deny
the application of females to be admitted as members of the
bar. Being contrary to the rules of the common law and the
usages of Westminster Hall from time immemorial, it could not
be supposed that the legislature had intended to adopt any
different
rule.
The claim that, under the fourteenth amendment of the
Constitution, which declares that no State shall make or enforce
any law which shall abridge the privileges and immunities of
citizens of the United States, the statute law of Illinois, or the
common law prevailing in that State, can no longer be set up as
a barrier against the right of females to pursue any lawful
employment for a livelihood (the practice of law included),

assumes that it is one of the privileges and immunities of

women as citizens to engage in any and every profession,
occupation, or employment in civil life.
It certainly cannot be affirmed, as an historical fact, that this has
ever been established as one of the fundamental privileges and
immunities of the sex. On the contrary, the civil law, as well as
nature herself, has always recognized a wide difference in the
respective spheres and destinies of man and woman. Man is, or
should be, woman's protector and defender. The natural and
proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life. The
constitution of the family organization, which is founded in the
divine ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the domain
and functions of womanhood. The harmony, not to say identity,
of interest and views which belong, or should belong, to the
family institution is repugnant to the idea of a woman adopting a
distinct and independent career from that of her husband. So
firmly fixed was this sentiment in the founders of the common
law that it became a maxim of that system of jurisprudence that
a woman had no legal existence separate from her husband,
who was regarded as her head and representative in the social
state; and, notwithstanding some recent modifications of this
civil status, many of the special rules of law flowing from and
dependent upon this cardinal principle still exist in full force in
most States. One of these is, that a married woman is
incapable, without her husband's consent, of making contracts
which shall be binding on her or him. This very incapacity was
one circumstance which the Supreme Court of Illinois deemed
important in rendering a married woman incompetent fully to
perform the duties and trusts that belong to the office of an
attorney and counsellor.
It is true that many women are unmarried and not affected by
any of the duties, complications, and incapacities arising out of
the married state, but these are exceptions to the general rule.
The paramount destiny and mission of woman are to fulfil the
noble and benign offices of wife and mother. This is the law of
the Creator. And the rules of civil society must be adapted to the
general constitution of things, and cannot be based upon
exceptional cases.
The humane movements of modern society, which have for their
object the multiplication of avenues for woman's advancement,
and of occupations adapted to her condition and sex, have my
heartiest concurrence. But I am not prepared to say that it is
one of her fundamental rights and privileges to be admitted into
every office and position, including those which require highly
special qualifications and demanding special responsibilities. In
the nature of things it is not every citizen of every age, sex, and
condition that is qualified for every calling and position. It is the
prerogative of the legislator to prescribe regulations founded on
nature, reason, and experience for the due admission of
qualified persons to professions and callings demanding special
skill and confidence. This fairly belongs to the police power of
the State; and, in my opinion, in view of the peculiar

characteristics, destiny, and mission of woman, it is within the

province of the legislature to ordain what offices, positions, and
callings shall be filled and discharged by men, and shall receive
the benefit of those energies and responsibilities, and that
decision and firmness which are presumed to predominate in
the sterner sex.
For these reasons I think that the laws of Illinois now
complained of are not obnoxious to the charge of abridging any
of the privileges and immunities of citizens of the United States.
Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the
foregoing opinion of Mr. Justice BRADLEY.
The CHIEF JUSTICE dissented from the judgment of the court,
and from all the opinions.
Facts. Mrs. Myra Bradwell was denied an application to practice
law in the Illinois Supreme Court. Her petition included the
requisite certificate attesting to her good character and
qualifications. The United States Supreme Court affirmed.
Issue. Does the Fourteenth Amendment to the United States
Constitution provide that one of the privileges and immunities of
women as citizens is to engage in any profession?
Held. The admission to the bar is a matter reserved to the
states and Bradwells right to practice law is not protected by
the
Fourteenth
Amendment.
Concurrence. Justice Bradley. The Illinois Supreme Court
requires a certificate from the court of some county of his good
moral character, and is otherwise left to the discretion of the
court. The court found itself bound by two limitations: to promote
the proper administration of justice not to admit any class of
persons not intended by the legislature to be admitted, even
though
not
expressly
excluded
by
statute.
Historically the right to engage in every profession has not been
one of the established fundamental privilege and immunities of
the sex. The law has always recognized a wide difference in the
respective spheres and destinies of man and woman. The
harmony of interests and views that belong to the family
institution is repugnant to the idea of a woman adopting a
distinct and independent career from her husband.
Historically women had no legal existence, and were incapable
of making binding contracts without her husbands consent. This
played heavily in the Supreme Court of Illinois decision. The
paramount destiny of women is to fulfill the noble and benign
offices of wife and mother.
Discussion. The purpose of this concurring opinion is to
demonstrate a classic statement of separate spheres ideology.
Facts of the case Myra Bradwell asserted her right to a license
to practice law in Illinois by virtue of her status as a United
States citizen. The judges of the Illinois Supreme Court denied
her application with only one judge dissenting.
Issue Is the right to obtain a license to practice law guaranteed
by the Fourteenth Amendment to all citizens of the United
States?
Conclusion No. While the Court agreed that all citizens enjoy
certain privileges and immunities which individual states cannot
take away, it did not agree that the right to practice law in a

state's courts is one of them. There was no agreement, argued

Justice Miller, that this right depended on citizenship. In his
concurrence, Justice Bradley went above and beyond the
constitutional explanations of the case to describe the reasons
why it was natural and proper for women to be excluded from
the legal profession. He cited the importance of maintaining the
"respective spheres of man and woman," with women
performing the duties of motherhood and wife in accordance
with the "law of the Creator."
X. F. Use of Surname Art 370, 373, 377, 378 NCC
Cases
ELENITA LEDESMA SILVA, ET AL., plaintiffs-appellants, vs.
ESTHER PERALTA, defendant-appellee. E.B. Garcia Law
Offices and Ledesma, Puno Guytingco and Antonio &
Associates for plaintiffs-appellants. Quijano, Abellera, Santos
Corrales & Nitrorreda for defendant-appellee.
R E S O L U T I O N REYES, J.B.L., J.: Appellants spouses
Saturnino Silva and Elenita
LedesmaSilva pray for reconsideration of this Court's decision
of November 25, 1960, claiming
that
(1) Appellant Elenita Silva should be awarded moral damages
for Esther Peralta's unauthorized
use of the designation of "Mrs. Esther Silva";
(2) The award of pecuniary damages against appellant
Saturnino Silva is unwarranted by the facts and the law.
It is contended that the prohibition imposed upon appellee
Esther Peralta from representing herself, directly or indirectly, as
the wife of Saturnino Silva should result in an award of moral
damages in favor of appellant Elenita Ledesma, whose
exclusive right to the appellation is recognized by the decision.
This argument misapprehends the bias of the decision. Esther
Peralta was forbidden from representing herself as Mrs.
Saturnino Silva for the reason that it was proved in this case
that she was not legally married to him, and because he is now
lawfully married to Elenita Ledesma. But an award of damages
in the latter's favor would require a further finding that the
assumption of the disputed status by Esther Peralta was made
in bad faith or through culpable negligence and no such finding
has been made in the decision. The facts are that the Esther in
good faith regarded herself as Saturnino's lawful wife, and that
the man himself led her into this belief prior to his desertion.
That later on, unknown to Esther, Silva should have married his
co-appellant in the United States is not sufficient to impose
upon Esther any liability for damages or to destroy her original
good faith, there being no proof that the existence of a valid
marriage between Saturnino and Elenita was adequately driven
home to Esther before this case was instituted. That the two
appellants Silva were living together as husband and wife was
certainly not sufficient proof, considering Saturnino Silva's past
history and conduct. How was appellee to know that Saturnino's
connection with Elenita Ledesma was any more legitimate than
his previous one with appellee herself?

Moreover, the trial court found Elenita Silva's claim for damages
not adequately proved, and we have not found in the record any
justification to depart from that finding.
II As to the award of damages against Saturnino Silva, it is to be
noted that while the latter's liability was extra-contractual in
origin, still, under the Civil Code of 1889, the damages resulting
from a tort are measured in the same manner as those due from
a contractual debtor in bad faith, since he must answer for such
damages, whether he had foreseen them or not, just as he must
indemnify not only for dumnum emergens but also forlucrum
cessans, as required by Article 1106. Article 1902 of the 1889
Civil Code of Spain formulated no standard for
measuring quasidelictual damages,
the
article
merely
prescribing that the guilty party "shall be liable for the damages
so done". This indefiniteness led modern civil law writers to hold
that the standards set in Articles 1106 and 1107, place in the
general rules on obligations, "rigen por igual para las
contractuales y las extra contractuales, las preestablecidas y
las que broten ex-lege de actos ilicitos". (Roces, Notesto Fisher,
"Los Daos Civiles y su Reparacion," (1927). Since liability for
damages arises in either case from a breach of a pre-existing
obligation (to behave without fault or negligence in case of
quasi-delicts, and, in case of contracts, to observe the conduct
required by the stipulation),it is logical to conclude with Planiol
that "La responsabilidad contractual y la extra contractual tienen
el mismo fundamento, por lo que se hallan sujetas en principio
a identicas regalas" (6 Planiol-Ripert, Derecho Civil, p. 529,sec.
378). Giorgi is of the same opinion (5 Teoria de Obligaciones,
pp. 133, 207-208). So is de Cossio y Corral("El Dolo en el
Derecho Civil", pp. 132-133):
Pero si ello es asi, resulta claro que la aproximacionentre esta
clase de culpa y la contractual, es cada dia mayor,hasta el
extremo de que, segun hemos antes indicado solamente se
pueden sealar diferencias accessorias, y muchas veces
aparentes entre una y otra. En primer termino, porque el
conceptode culpa contractual se extiende no solo a las
obligacionesnacidas ex contractu, sino, en general, a todas
aquellas preexistentes entre las partes a la realidad del acto
daoso (obligaciones legales). de otra parte, porque si bien
consideramoslas cosas, la responsabilidad llamada
extracontractual, deriva siempre del quebrantamiento de un
deber general, implicitamentereconocido por la ley, cual es el
de que todos deben actuar socialmente con la debida
diligencia, evitando causar dano a los demas, y una dercho que
todo ciudadano tine, correlativamente,a no ser da__ado en su
patrimonio y bienes por la conducta dolosa o negligente de los
demas. En tal sentido, habria siempre entre el autor del dao y
la victima, una relacion juridica,constituida por este derecho y
aquel deber.
Este idea de unidad entre ambas instituciones se traduce en
que las pretendidadas diferencias en order a la extension de la
indemnizacion, en ambos casos, no puedan defenderse a la
vista de los preceptos de nuestro Derecho positivo. En efectono
contiene el Capitulo II del Titulo XVI del Libro IV de

nuestroCodigo civil norma alguna referente a la extension de la

indemnizacion que en cada caso haya de prestarse, lo que
nosobliga forzosamente a acudir a las normas general
contenidasen el Capitulo II, del Titulo I de dicho libro, IV,
relativeo a los "efectos de los obligaciones", que ninguna razon
peermite limitar.a naturaleza contractual, ya que el articulo
1.101 hable genericamente de obligaciones el 1.102, de "todas
las obligaciones";el 1.103, de toda clase de obligaciones", y en
ninguno de los articulos subsifuientes se hace referencia a una
clase especial de obligaciones, sino a todas en general.
Que las disposiciones de este Capitulo son aplicables en
loscasos de culpa extracontractual, es doctrina constantemente
reconocida, por la jurisprudencia del Tribunal Supremo. Asi,en
la sentencia de 14 de diciembre de 1894, concretandose a
losarticulos 1.101, 1.103 y 1.104, afirma que son de caracter
generaly applicables a toda clase de obligaciones, no
ofreciendocontradiccion con las especiales de los articulos
1.902 y 1.903; la sentencia de 15 de enero de 1902, permite
interpretar los articulos1.902, t 1.903 por los 1.103 y 1.106, a
los efectos de determinar los elementos que han de entrar en la
indemnizacion.La misma doctrina se mantiene en la senencia
de 2 de diciembrede 1946, y en otras muchas que puedieramos
aducir.
Whether or not the damages awarded to appellee are a natural
and direct consequence of Silva's deceitful maneuvers in
making love to appellee, and inducing her to yield to his
advances and live with him as his wife (when Silva knew all the
time that he could not marry Esther Peralta because of his
undissolved marriage to an Australian woman, a prior wedlock
that he concealed from appellee), is a question of appreciation.
It is clear that Esther Peralta would not have consented to the
liaison had there been no concealment of Silva's previous
marriage, or that the birth of the child was a direct result of this
connection. That Esther had to support the child because Silva
abandoned her before it was born is likewise patent upon the
record, and we can not see how said appellant can be excused
from liability therefor.
Silva's seduction and subsequent abandonment of appellee and
his illegitimate child were likewise the direct cause for the filling
of the support case in Manila, and in order to prosecute the
same, appellee had to quit her employment in Davao. While the
case could have been filed in Davao, we do not believe that this
error in selecting a more favorable venue (due to her
unfamiliarity with the technicalities of the law) should be allowed
to neutralized the appellant Silva's responsibility as the primary
causative factor of the prejudice and damage suffered by
appellee.
It is argued that the maintenance of the child can not be
considered as an element of damage because the child's case
for support was dismissed. This contention fails to take into
account the action there was for support as an acknowledged
natural child, and that under the Civil Code of 1889 (the law in
force when the child was born), the right of natural children to

be supported by their father depended exclusively on the

recognition by the father of his paternity; the rule being that
the mere fact of birth gave no legal right to the child, and
imposed no legal duty upon the father, except, perhaps, in
cases arising under the criminal law.. . . The father was not,
prior to the Civil Code, and is not now, bound to recognize his
natural son by reason of the mere fact that he is the father. . . .
But as to the father the question is, and always has been, Has
he performed any acts which indicate his intention to recognize
the child as his?" (Buenaventura vs. Urbano, 5 Phil., pp. 2-3).
It follows that in said suit, the real issue was whether the child
had been duly recognized, the support being a mere
consequence of the recognition. Therefore, the failure of the
child's action for support did not adjudge that he was not the
defendant's child, but that the defendant never recognized him
as such. That the decision of the Court of Appeal (CA-G.R. No.
24532-R) rejecting the child's action did not declare him without
right to support under all circumstances can be seen from the
following statement in the decision:
The proofs so far found in the record may possibly warrant the
filing of an action for compulsory recognition, under paragraphs
3 and 4 of Art. 283, but there was no action presented to that
effect.
Plainly, the issues and parties being different, the result of the
child's action can not constitute res judicata with regard to the
mother's claim for damages against the father on account of the
amounts she was compelled to spend for the maintenance of
their child. On the contrary, the very fact that the child was not
allowed to collect support from the father (appellant therein)
merely emphasizes the account of his birth and rearing, which,
in turn, was a direct consequence of appellant's tortious
conduct. Since Esther Peralta had expressly that she had to
support the child (Record of Appeal, p. 27, in fine),and had
prayed for such relief "as may be deemed just and equitable in
the premises", there is no reason why her expenses for the
child's maintenance should not be taken into account.
Appellants submit that the damages allowed for maintenance of
the son should be limited to P600.00 a year, because the
income tax law allows only that much deduction for each child.
We do not believe that income tax deductions constitute a
reasonable basis for an award of damages, since they are fixed
an entirely different purpose (to arrive at the net taxable income)
and merely represent the amount that the state is willing to
exempt from taxation. At that, it should be noted that the
deductible amount has been lately increased to P1,000.00 per
annum. But even at P600.00 per annum, the damage suffered
by appellee on this count, from 1945 to 1960, already amount to
around P9,000.00 a year, to which must be added the loss of
appellee's salary as executive of the Girl Scouts in Davao; so
that the P15,000.00 damages awarded by the court below is by
no means excessive, as already held in our decision in chief.
Appellants also contend that the claim for pecuniary damages
has prescribed, because they date back to 1945. Suffice it to
note that the defense of prescription was not invoked by

appellants against the claim for pecuniary damages, and this

defense must be regarded as waived in relation to the same.
Appellant's reply to the appellee'sfirst counterclaim in her
second amended answer (which was for actual or pecuniary
damages) read as follows (Answer to Counterclaim, Rec. App.
p. 33):
1. That plaintiff is without knowledge or information sufficient
to to form a belief as to the truth of the allegations continued
under paragraphs 6, 7, 8, 9, 10, 11 and 12 of the first
counterclaim and, therefore, specifically denies the same.
The defense of prescription was actually interposed only against
the second counterclaim, in this wise:
1. That the cause of action alleged in the second
counterclaim has already prescribed more than ten years
having already elapsed. (Answer to Counterclaim, Rec. App., p.
34).
The second counterclaim referred to was for damages due to
"mental torture, anguish and hurt feelings, all to her damage in
the amount of P250,000." (Rec. App. p. 28).Upon the other
hand, our own award for moral damages was based, not on the
deceit practiced by Silva in securing Esther's assent to live
maritally with him, but on his subsequent harassment of her in
1945, by filing suit against her in different provinces and
otherwise applying pressure to cause her to abandon her child's
case. As this cause of action arose less than three years before
the present action was filed, the defense of prescription is
rendered untenable against it, for the limitation period had not
yet expired when the suit was brought.
WHEREFORE, the motion for reconsideration is denied.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera,
Paredes and Dizon, JJ., concur.
SILVA vs. PERALTA
FACTS: At the outbreak of the war in 1941, the defendant
Esther Peralta she residedwith her sister, Mrs. Pedro Pia, in
Maco, Tagum, Mabini Davao. Saturnino Silva, then anAmerican
citizen and an officer of the United States Army and married to
one PrescillaIsabel of Australia, had been ordered to sent to the
Philippines during the enemy
occupation to help unite the guerillas in their fight for freedom.
He was thecommanding officer of the 130th Regiment general
headquarters at Magugpo, Tagum,Davao.
Sometime during the year 1944, Florence, a younger sister of
the defendant, wasaccused of having collaborated with the
enemy, and for this she was arrested, andaccompanied by
Esther, brought to Anibongan and later to the general
headquarters atMagugpo for investigation that Silva first met
Esther Florence was exonorated of thecharges made against
her and was ordered released, but with the advice that she
shouldnot return to Maco for the time being. Heeding such
advice, Florence and her sister,appellee herein, went to live with
the spouses Mr. and Mrs. Camilo Doctolero at Tipas,Magugpo,
Davao.Silva started to frequent the house of the Doctoleros,

and soon professed love forEsther. Having been made to

believe that he was single, she accepted his marriageproposal;
and the two were married on January 14, 1945 by one Father
Cote on theoccasion of a house blessing. No documents of
marriage were prepared nor executed,allegedly because there
were no available printed forms for the purpose. Hence,
thelovers lived together as husband and wife. From the
"marriage", a child, namedSaturnino Silva, Jr., was born.On
May 8, 1945, Silva sustained serious wounds in the battle of
Ising, for which reason,he was transferred to Leyte, and later to
the United States, he divorced Precilla Isabeland later, on May
9, 1948, contracted marriage with plaintiff Elenita
Ledesma Silva.Upon his return to the Philippines, appellee
Esther Peralta demanded support for theirchild, and, his refusal,
instituted a suit for support in the Court of First Instance
of Manila. Thereupon, the present action was filed against
Esther, and another suit againsther was instituted in
Cotabato.The Trial Court awarded damages in favor of the
defendant thus the plaintiffs-appellantappeal on both questions
of fact and law from the decision of the Court of First Instanceof
Davao to the Supreme Court, the amount involved being more
than P200,000.00.
ISSUE:
Whether or not damages awarded to appellee are a natural and
directconsequence of Silva's deceitful maneuvers in making
love to appellee, and inducing herto yield to his advances and
live with him as his wife.
DECISION OF THE SUPREME COURT: YES.
It is to be noted that while the latter's liabilitywas extracontractual in origin, still, under the Civil Code in 1889, the
damages resultingfrom a tort are measured in the same manner
as those due from a contractual debtor inbad faith, since he
must answer for such damages, whether he had forseen
them or not, just as he must indemnify not only for damnum
emergens but also for lacrum cessans,as required by Article
1106. Article 1002 of the 1889 Civil Code of Spain formulated
nostandard for measuring quasi-delictual damages, the article
merely prescribing that theguilty party "shall be liable for the
damages so done". This indefiniteness led moderncivil law
writers to hold that the standards set is articles 1106 and 1107,
placed in thegeneral rules on obligations, "rigen por igual para
las contractuales y las extrascontractuales, las pre establecidas
y las que borten ex-lege de actos ilicitos". (Roces,Notes to
Fisher)" Los Daos Civiles y su Reparacion,"(1927)
It is well to note in this connection, that Silva's act in hiding from
appellee that he couldnot legally marry her, because, he
allegedly have an Australian wife, was not merenegligence, but
actual fraud (dolo) practiced upon the appellee. Consequently,
heshould stand liable for any and all damages arising therefrom,
which include theexpense of maintaining the offspring and the
expenses of litigation to protect the child'sright's and the loss of
the mother's own earnings. This is a liability that flows even
fromArticles 1902 and 1107 (par. 2) of 1889 (Arts. 2176 and
2202 of the New Code).Art. 1902. Any person who by an act or

omission causes damage to another by his faultor negligence

shall be liable for the damage as done.Art. 1107. In case of
fraud (dolo) the debtor shall be liable for all losses and
damageswhich clearly arise from the failure to fulfill the
obligation.
Tolentino v CA (1988)
Private respondent Consuelo David married Arturo Tolentino in
1931. The marriage was dissolved and terminated in 1943
pursuant to the law during the Japanese occupation by a decree
of absolute divorce on the grounds of desertion and
abandonment by the wife for at least 3 continuous years.
Arturo Tolentino then married Pilar Adorable but she died soon
after the marriage. After that, Constancia married Arturo
Tolentino on April 21, 1945 and they had 3
children. Constancia Tolentino is the present legal wife of Arturo
Tolentino.
Consuelo David continued using the surname Tolentino after the
divorce and up to the time that the complaint was filed. Her
usage of the surname Tolentino was authorized by the family of
Arturo Tolentino (brothers and sisters).
In RTC, Consuelo David should discontinue her usage of the
surname of Tolentino. The CA decision reversed that of the
RTCs.
ISSUES: 1. WON the petitioners cause of action has already
prescribed
2. WON the petitioner can exclude by injunction Consuelo David
from using the surname of her former husband from whom she
was divorced.
HELD: 1. Yes. In Art 1150 CC The time for prescription of all
kinds of actions, when there in no special provision which
ordains otherwise, shall be counted from the day they may be
brought.
Art 1149 CC Period of prescription is 5 years from the right of
action accrues.
The action has long prescribed because she married Arturo
Tolentino on April 21, 1945; Civil Code took effect on August 30,
1950; She acquired knowledge that Consuelo David was still
using the surname Tolentino in 1951.
She should have filed the case after she obtained knowledge
that Consuelo David was still using the surname Tolentino. The
case was filed on November 23, 1971 or 20 years after
she obtained knowledge.
2. No. Philippine law is silent whether or not a divorced
woman may continue to use the surname of her husband
because there are no provisions for divorce under Philippine
law.
On the Commentary of Tolentino as regards Art 370 of the CC.
The wife cannot claim an exclusive right to use the husbands
surname. She cannot be prevented from using it, but neither
can she restrain others from using it.
Art 371 is not applicable because it contemplates annulment
while the present case refers to absolute divorce where there is
severance of valid marriage ties. Effect of divorce was more

akin to death of the spouse where the deceased woman is

continued to be referred to as Mrs. of the husband even if he
has remarried.
If the appeal would be granted the respondent would encounter
problems because she was able to prove that she entered into
contracts with third persons, acquired properties and entered
into other legal relations using the surname Tolentino. Petitioner
failed
to
show
the
she
would
suffer
any
legal injury or deprivation of right.
There was no usurpation of the petitioners name and
surname. Usurpation implies injury to the interests of the owner
of the name. It consists with the possibility of confusion of
identity. The elements of usurpation were 1. Actual use of
anothers name, 2. Use is unauthorized, 3. Use of anothers
name is to designate personality or identity of a person. None of
these elements were present in the case because public
knowledge referred to Constancia as the legal wife of Arturo,
and Consuelo did represent herself after the divorce as Mrs.
Arturo Tolentino.
Silva v Peralta was cited by the petitioner but the case is not
applicable. In Silva, it was not mere use of the surname that
was enjoined but the defendants representation that she was
the wife of Saturnino Silva, there was usurpation of the status of
the wife.
X. G. Relief from Courts Art 72
Cases
ANTONIO PEREZ, in his own representation and as Guardian
Ad Litem of his son BENIGNO PEREZ y TUASON, PlaintiffAppellant, v. ANGELA TUASON DE PEREZ, DefendantAppellee.
Alfonso Felix Jr. for Appellant. Jose W. Diokno for Appellee.
SYLLABUS
1. COURTS; JURISDICTION; GUARDIANSHIP COGNIZABLE
BY JUVENILE AND DOMESTIC RELATIONS COURT. Since
the complaint asks that defendant be placed under guardianship
because of her prodigality, and prays that a suitable person or
institution be appointed to administer her properties, the action
falls squarely under the provisions of subsection (b), Sec. 38-A,
Republic Act No. 1401, as a "case involving. . . . . guardianship"
exclusively cognizable by the Juvenile and Domestic Relations
Court.
2. ID.; ID.; PROCEEDINGS UNDER ART. 116, CIVIL CODE;
COGNIZABLE BY JUVENILE AND DOMESTIC RELATIONS
COURT. Inasmuch as the plaintiff seeks to recover damages
because his wifes acts placed him "in an embarrassing and
contemptible position and causing him grave anxiety, wounded
feelings, extreme humiliation," the case involves acts of a
spouse that brings . . . dishonor . . . upon the other "under Art.
116," Civil Code; hence, pursuant to subsection (d), Sec. 38-A
of Republic Act No. 1401, this action likewise fails exclusively
within the jurisdiction of the Juvenile and Domestic Relations
Court.
3. ID.; ID.; MERE SUBMISSION OF COMPROMISE DOES

NOT PLACE PARTY IN ESTOPPEL; COURT MAY MOTU

PROPRIO DISMISS ACTION. Assuming for the sake of
argument that defendant was placed in such estoppel by merely
executing the compromise and submitting it to the Courts
approval, such estoppel could not operate against it, because
regardless of the parties, the Court, at any time, could motu
proprio inquire and determine whether it had jurisdiction, and
could dismiss the case if it found it had no power to act therein.
D E C I S I O N REYES, J.B.L., J.: Appeal from an order, dated
October 27, 1958, of the Court of First Instance of Manila,
dismissing its Civil Case No. 34626 for lack of jurisdiction.
Plaintiff Antonio Perez, in his own representation and as
guardian ad litem of his adoptive son, Benigno Perez y Tuason,
initiated this civil case against Angela Tuason de Perez, the
plaintiffs wife and Benignos mother. The complaint states three
causes
of
action.
Under the first cause of action, it is averred that the defendant is
squandering all of her estate on a young man by the name of
Jose Antonio Campos Boloix, because of which Benigno Perez
y Tuason, acting through his guardian ad litem, the plaintiff,
prays that his mother, the defendant, be declared a prodigal and
placed under guardianship; that a suitable person or institution
be appointed to administer her properties; and that during the
pendency of this suit, a writ of injunction be issued to prevent
the continued waste and dissipation of her properties.
In his second cause of action, the husband Antonio Perez, for
and in his own behalf, asserts that by virtue of the said alleged
acts of prodigality committed by the defendant wife, the conjugal
partnership of gain is being dissipated to the prejudice of both
spouses; wherefore, he prays for a writ of injunction to restrain
her from "dissolving and liquidating the conjugal partnership of
gains."
Finally, as a third cause of action, the plaintiff husband avers
that, in addition to the aforementioned acts, the defendant has
repeatedly advised him, as well as other persons, that she
intends to marry Jose Campos Boloix and to have a child by
him not withstanding her present marriage to the plaintiff,
Antonio Perez; and that, if she could not have such a child, she
was willing to have one by any other person, just to put plaintiff
in a ridiculous and embarrassing position. Plaintiff, therefore,
seeks to recover from her the total sum of P185,000.00 by way
of damages and attorneys fees. On January 2, 1958, after a
preliminary hearing, wherein plaintiff was heard ex parte, the
Court of First Instance of Manila issued a preliminary injunction
as
prayed
for
in
the
complaint.
On March 19, 1958, the defendant appeared through counsel
and prayed for the dismissal of the case on the ground of res
judicata, and that the preliminary injunction be dissolved. Said
motion was denied by the court a quo in its order of April 2,
1958.
On April 16, 1958, the defendant filed a second motion to
dismiss the case, this time on the ground that the Court of First
Instance of Manila had no jurisdiction over the present
proceedings, which, according to her, is vested under Republic

Act No. 1401 with the Juvenile and Domestic Relations Court.
While this last motion was being considered by the Court, a
compromise agreement was arrived at and submitted for
approval of the court on May 2, 1958. On May 31, 1958, before
the Court could act, defendant filed an opposition to the
approval of the compromise agreement, on the ground that (a)
the same is contrary to law and (b) it was not freely or validly
entered into by her representative. Without resolving this
particular question, the lower court asked the parties to submit
further memoranda on the sole issue of jurisdiction. After this
was done, the trial court, by order of September 30, 1958,
ordered the dismissal of the case on the ground that it lacked
jurisdiction over the subject matter. Hence, plaintiffs Perez
(father
and
son)
appealed.
Appellants assign three alleged errors in the order appealed
from,
as
follows:jgc:
"The trial court erred in holding that the Court of First Instance
of Manila has no jurisdiction over the causes of action alleged
by
Antonio
Perez
in
the
complaint.
"The trial court erred in holding that the Court of First Instance
of Manila has no jurisdiction over the causes of action alleged
by Benigno Perez y Tuason in the complaint.
The trial court cried in holding that the Doctrine of Estoppel of
Jurisdiction is not applicable in this country and erred further in
failing to apply said doctrine to the present proceedings."
We
find
the
appeal
to
be
untenable.
Republic Act No. 1401, creating the Juvenile and Domestic
Relations Court of the City of Manila and defining its jurisdiction,
provides,
among
other
things,
that:jgc:
"SEC. 38-A Provisions of the Judiciary Act to the contrary
notwithstanding, the court shall have exclusive original
jurisdiction to hear and decide the following cases after the
effectivity of this Act:chanrob1es virtual 1aw library
(b) Cases involving custody, guardianship, adoption,
paternity and acknowledgment;
x
x
x
(d) Proceedings brought under the provisions of Articles one
hundred sixteen, two hundred twenty-five, two hundred fifty, two
and three hundred thirty-one of the Civil Code." (Italics
supplied.)
While Article 116 of the Civil Code (referred to in subsection [d]
above)
states:jgc:
"When one of the spouses neglects his or her duties to the
conjugal union or brings danger, dishonor or material injury
upon the other, the injured party may apply to the court for
relief.
The court may counsel the offended party to comply with his or
her duties, and take such measures as may be proper." (Italics
supplied.)
It is easy to see that the first cause of action set forth in the
complaint, wherein the minor Benigno Perez y Tuason, through
his representative, asks that his mother be placed under
guardianship because of her alleged prodigality, and prays that
a suitable person or institution be appointed to administer her

properties, is exclusively cognizable by the Domestic Relations

Court. The action falls squarely under the provisions of
subsection (b), Section 38-A, R. A. 1401, above-quoted, as a
"case involving . . guardianship." No error was, therefore,
committed in the appealed order in holding that this cause of
action lay outside the jurisdiction of the Court of First Instance.
The same thing can be said of the third cause of action wherein
Antonio Perez seeks to recover damages and attorneys fees
because his wifes act (avowing openly her intention to marry
and have a child by Campos Boloix or if not, by anyone else)
placed the plaintiff "in an embarrassing and contemptible
position" (sic) and causing him "grave anxiety, wounded
feelings, extreme humiliation." The case involves acts of a
spouse that "brings . . . dishonor . . . upon the other (spouse)"
under Article 116 of the Civil Code of the Philippines, and also
lies within the jurisdiction of the Domestic Relations Court. The
law (subsection (d), Sec. 38-A) expressly gives that court
exclusive original jurisdiction over proceedings under the
provisions of Article 116 of the Civil Code.
More controversial is the issue involved in the second cause of
action of the complaint, wherein Antonio Perez alleges that the
prodigal acts of his wife result in the conjugal partnership of
gains being dissipated to the prejudice of both spouses, and
prays for a writ of injunction to restrain her from "dissolving and
liquidating the conjugal partnership of gains." The Court of First
Instance held that this cause of action is also one of those
provided by Article 116 of the Civil Code, as a case where one
spouse "brings danger . . . or material injury" upon the other,
and, therefore, relief should be sought in the Court of Domestic
Relations.
We are inclined to think that" material injury" as used in Article
116 does not refer to patrimonial (economic) injury or damage,
but to personal (i. e. physical or moral) injury to one of the
spouses, since Article 116 lies in the chapter concerning
personal relations between husband and wife. Nevertheless, the
court below was correct in viewing this cause of action as
primarily predicated on the grant of guardianship due to alleged
prodigality of the wife, since the allegation thereof is therein
reiterated, and the remedy of injunction sought against further
(i.e. future) acts of disposition (no annulment of her past
transactions is demanded) must be necessarily based on the
wifes
being
subject
to
guardianship.
If the wife were not in any way incapacitated, the mere fact that
the alienation of her paraphernal would deprive the conjugal
partnership of the future fruits thereof would not give rise to a
cause of action for injunction, since the conjugal partnership is
only entitled to the net fruits of such property, after deducting
administration expenses (Peoples Bank v. Register of Deeds,
60 Phil., 167), and it is now here alleged that any such net fruits
exist. More fundamental still, the wifes statutory power to
alienate her paraphernal (Phil. Civil Code, Article 140)
necessarily implies power to alienate its future fruits, since the
latter are mere accessory to the property itself.
Wherefore, the second cause of action is inextricably woven

into and cannot stand independently of the demand for

guardianship of the wife, the injunction being a mere incident
thereof; so that like the first cause of action, the second also lay
within the exclusive jurisdiction of the Court of Domestic
Relations.
The third alleged error charged against the Court below, that it
should have held that defendant was in estoppel to question the
jurisdiction of the trial court, is, on its face, without merit.
Assuming for the sake of argument that defendant appellee was
placed in such estoppel by merely executing the compromise
and submitting it to the Courts approval, such estoppel could
not operate against the Court. Regardless of the parties, the
Court, at any time, could motu proprio inquire and determine
whether it had jurisdiction over the subject matter of the action,
and could dismiss the case (as it did) if it found that it had no
power
to
act
therein.
The order appealed from is hereby affirmed. Costs against
appellants. Paras, C.J., Bengzon, Bautista Angelo, Labrador,
Concepcion, Barrera, Gutierrez David, Paredes, and Dizon, JJ.,
concur.
FACTS: Antonio Perez, as guardian ad litem of his son, filed a
civil case against defendant Angela Tuason de Perez at the CFI
Manila.
He wants to declare his wife as prodigal and place under
guardianship based on the following allegations:
o she was squandering her estate on a young man named
Jose
Boloix
o she was spending the conjugal partnership of gain
o defendant has expressed her desire to marry and have
children with Jose Boloix, if only to embarrass her husband.
CFI dismissed the case for lack of jurisdiction.
ISSUE: WON the case falls under the jurisdiction of the CFI or
the
Juvenile
Domestic
Relations
Court.
HELD: RTC has no jurisdiction. It is the Juvenile and Domestic
Relation Court which has jurisdiction. Material injury pertains to
personal injury (personal relations between man and wife) and
not patrimonial or financial.
MARIANO B. ARROYO, plaintiff-appellant, vs. DOLORES C.
VASQUEZ DE ARROYO,
defendant-appellee. Fisher & DeWitt for appellant. Powell & Hill
for appellee.
STREET, J.: Mariano B. Arroyo and Dolores C. Vasquez de
Arroyo were united in the bonds of wedlock by marriage in the
year 1910, and since that date, with a few short intervals of
separation, they have lived together as man and wife in the city
of Iloilo until July 4, 1920, when the wife went away from their
common home with the intention of living thenceforth separate
from her husband. After efforts had been made by the husband
without avail to induce her to resume marital relations, this
action was initiated by him to compel her to return to the
matrimonial home and live with him as a dutiful wife. The
defendant answered, admitting the fact of marriage, and that
she had left her husband's home without his consent; but she

averred by way of defense and cross-complaint that she had

been compelled to leave by cruel treatment on the part of her
husband. Accordingly she in turn prayed for affirmative relief, to
consist of (1) a decree of separation; (2) a liquidation of the
conjugal partnership; (3) and an allowance for counsel fees and
permanent separate maintenance. Upon hearing the cause the
lower court gave judgment in favor of the defendant, authorizing
her to live apart from her husband, granting her alimony at the
rate of P400 per month, and directing that the plaintiff should
pay to the defendant's attorney the sum of P1,000 for his
services to defendant in the trial of the case. The plaintiff
thereupon removed the case with the usual formalities by
appeal to this court.
The trial judge, upon consideration of the evidence before him,
reached the conclusion that the husband was more to blame
than his wife and that his continued ill-treatment of her furnished
sufficient justification for her abandonment of the conjugal home
and the permanent breaking off of marital relations with him. We
have carefully examined and weighed every line of the proof,
and are of the opinion that the conclusion stated is wholly
untenable. The evidence shows that the wife is afflicted with a
disposition of jealousy towards her husband in an aggravated
degree; and to his cause are chiefly traceable without a doubt
the many miseries that have attended their married life. In view
of the decision which we are to pronounce nothing will be said
in this opinion which will make the resumption of married
relations more difficult to them or serve as a reminder to either
of the mistakes of the past; and we prefer to record the fact that
so far as the proof in this record shows neither of the spouses
has at any time been guilty of conjugal infidelity, or has given
just cause to the other to suspect illicit relations with any
person. The tales of cruelty on the part of the husband towards
the wife, which are the basis of the cross-action, are in our
opinion no more than highly colored versions of personal
wrangles in which the spouses have allowed themselves from
time to time to become involved and would have little
significance apart from the morbid condition exhibited by the
wife. The judgment must therefore be recorded that the
abandonment by her of the marital home was without sufficient
justification in fact.
In examining the legal questions involved, it will be found
convenient to dispose first of the defendant's cross-complaint.
To begin with, the obligation which the law imposes on the
husband to maintain the wife is a duty universally recognized in
civil society and is clearly expressed in articles 142 and 143 of
the Civil code. The enforcement of this obligation by the wife
against the husband is not conditioned upon the procurance of
a divorce by her, nor even upon the existence of a cause for
divorce. Accordingly it had been determined that where the wife
is forced to leave the matrimonial abode and to live apart from
her husband, she can, in this jurisdiction, compel him to make
provision for her separate maintenance (Goitia vs. Campos
Rueda, 35 Phil., 252); and he may be required to pay the
expenses, including attorney's fees, necessarily incurred in

enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37

Phil., 179.) Nevertheless, the interests of both parties as well as
of society at large require that the courts should move with
caution in enforcing the duty to provide for the separate
maintenance of the wife, for this step involves a recognition of
the de facto separation of the spouses a state which is
abnormal and fraught with grave danger to all concerned. From
this consideration it follows that provision should not be made
for separate maintenance in favor of the wife unless it appears
that the continued cohabitation of the pair has become
impossible and separation necessary from the fault of the
husband.
In Davidson vs Davidson, the Supreme Court of Michigan,
speaking through the eminent jurist, Judge Thomas M. Cooley,
held that an action for the support of the wife separate from the
husband will only be sustained when the reasons for it are
imperative (47 Mich., 151). That imperative necessity is the only
ground on which such a proceeding can be maintained also
appears from the decision in Schindel vs. Schindel (12 Md.,
294). In the State of South Carolina, where judicial divorces
have never been procurable on any ground, the Supreme court
fully recognizes the right of the wife to have provision for
separate maintenance, where it is impossible for her to continue
safely to cohabit with her husband; but the same court has more
than once rejected the petition of the wife for separate
maintenance where it appeared that the husband's alleged
cruelty or ill-treatment was provoked by the wife's own improper
conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197;
16 Am. Dec., 597; Boydvs. Boyd, Har. Eq. [S. Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the judgment
of the English Ecclesiastical Court in a case where cruelty on
the part of the husband was relied upon to secure a divorce for
the wife, made use of the following eloquent words, which
are perhaps even more applicable in a proceeding for separate
maintenance in a jurisdiction where, as here, a divorce cannot
be obtained except on the single ground of adultery and this,
too, after the conviction of the guilty spouse in a criminal
prosecution for that crime. Said he:
That the duty of cohabitation is released by the cruelty of one of
the parties is admitted, but the question occurs, What is cruelty?
...
What merely wounds the mental feelings is in few cases to be
admitted where they are not accompanied with bodily injury,
either actual or menaced. Mere austerity of temper, petulance of
manners, rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion, if they do
not threaten bodily harm, do not amount to legal cruelty: they
are high moral offenses in the marriage-state undoubtedly, not
innocent surely in any state of life, but still they are not that
cruelty against which the law can relieve. Under such
misconduct of either of the parties, for it may exist on the one
side as well as on the other, the suffering party must bear in
some degree the consequences of an injudicious connection;

must subdue by decent resistance or by prudent conciliation;

and if this cannot be done, both must suffer in silence. . . .
The humanity of the court has been loudly and repeatedly
invoked. Humanity is the second virtue of courts, but
undoubtedly the first is justice. If it were a question of humanity
simply, and of humanity which confined its views merely to the
happiness of the present parties, it would be a question easily
decided upon first impressions. Every body must feel a wish to
sever those who wish to live separate from each other, who
cannot live together with any degree of harmony, and
consequently with any degree of happiness; but my situation
does not allow me to indulge the feelings, much less the first
feelings of an individual. The law has said that married persons
shall not be legally separated upon the mere disinclination of
one or both to cohabit together. . . .
To vindicate the policy of the law is no necessary part of the
office of a judge; but if it were, it would not be difficult to show
that the law in this respect has acted with its usual wisdom and
humanity with that true wisdom, and that real humanity, that
regards the general interests of mankind. For though in
particular cases the repugnance of the law to dissolve the
obligations of matrimonial cohabitation may operate with great
severity upon individual, yet it must be carefully remembered
that the general happiness of the married life is secured by its
indissolubility. When people understand that they must live
together, except for a very few reasons known to the law, they
learn to soften by mutual accommodation that yoke which they
know cannot shake off; they become good husbands and good
wives form the necessity of remaining husbands and wives; for
necessity is a powerful master in teaching the duties which it
imposes. . . . In this case, as in many others, the happiness of
some individuals must be sacrificed to the greater and more
general good. (Evansvs. Evans, 1 Hag. Con., 35; 161 Eng.
Reprint, 466, 467.)
In the light of the considerations stated, it is obvious that the
cross-complaint is not well founded and none of the relief
sought therein can be granted.
The same considerations that require the dismissal of the crosscomplaint conclusively prove that the plaintiff, Mariano B.
Arroyo, has done nothing to forfeit his right to the marital society
of his wife and that she is under an obligation, both moral and
legal, to return to the common home and cohabit with him. The
only question which here arises is as to the character and
extent of the relief which may be properly conceded to him by
judicial decree.
The action is one by which the plaintiff seeks the restitution of
conjugal rights; and it is supposed in the petitory part of the
complaint that he is entitled to a permanent mandatory
injunction requiring the defendant to return to the conjugal home
and live with him as a wife according to the precepts of law and
morality. Of course if such a decree were entered, in unqualified
terms, the defendant would be liable to attachment for
contempt, in case she should refuse to obey it; and, so far as
the present writer is aware, the question is raised for the first

time in this jurisdiction whether it is competent for the court to

make such an order.
Upon examination of the authorities we are convinced that it is
not within the province of the courts of this country to attempt to
compel one of the spouses to cohabit with, and render conjugal
rights to, the other. Of course where the property rights of one of
the pair are invaled, an action for restitution of such rights can
be maintained. But we are disinclined to sanction the doctrine
that an order, enforcible by process of contempt, may be
entered to compel the restitution of the purely personal rights
of consortium. At best such an order can be effective for no
other purpose than to compel the spouses to live under the
same roof; and the experience of these countries where the
court of justice have assumed to compel the cohabitation of
married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights at the
instance of either husband or wife; and if the facts were found to
warrant it that court would make a mandatory decree, enforcible
by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights.
Yet this practice was sometimes criticized even by the judges
who felt bound to enforce such orders, and in
Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James
Hannen, President in the Probate, Divorce and Admiralty
Division of the High Court of Justice, expressed his regret that
the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent
to the decree for the restitution of conjugal rights in England,
could be obtained by the injured spouse, but could not be
enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes
Act (1884) abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still be procured,
and in case of disobedience may serve in appropriate cases as
the basis of an order for the periodical payment of a stipend in
the character of alimony.
In the voluminous jurisprudence of the United States, only one
court, so far as we can discover, has ever attempted to make a
peremptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow
and live with her husband, who had changed his domicile to the
City of New Orleans. The decision referred to (Gahn vs. Darby,
36 La. Ann., 70) was based on a provision of the Civil Code of
Louisiana similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently has not
been fruitful even in the State of Louisiana. In other states of the
American Union the idea of enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148.)
In a decision of January 2, 1909, the supreme court of Spain
appears to have affirmed an order of the Audencia Territorial de
Valladolid requiring a wife to return to the marital domicile, and
in the alternative, upon her failure to do so, to make a particular
disposition of certain money and effects then in her possession

and to deliver to her husband, as administrator of the ganancial

property, all income, rents, and interest which might accrue to
her from the property which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11.) but it does not appear that this order
for the return of the wife to the marital domicile was sanctioned
by any other penalty than the consequences that would be
visited upon her in respect to the use and control of her
property; and it does not appear that her disobedience to that
order would necessarily have been followed by imprisonment
for contempt.
We are therefore unable to hold that Mariano B. Arroyo in this
case is entitled to the
unconditional and absolute order for the return of the wife to the
marital domicile, which is sought in the petitory part of the
complaint; though he is, without doubt, entitled to a judicial
declaration that his wife has presented herself without sufficient
cause and that it is her duty to return.
Therefore, reversing the judgment appealed from, in respect
both to the original complaint and the cross-bill, it is declared
that Dolores Vasquez de Arroyo has absented herself from the
marital home without sufficient cause; and she is admonished
that it is her duty to return. The plaintiff is absolved from the
cross-complaint, without special pronouncement as to costs of
either instance. So ordered. Mapa, C.J., Johnson, Araullo,
Avancea and Villamor, JJ., concur.
FACTS: Plaintiff Mariano and defendant Dolores were married
in 1910, and lived in Iloilo City. They lived together with a few
short
intervals
of
separation.
On
July
4,
1920, defendant Dolores went away from their common home
and decided to live separately from plaintiff. She claimed that
she was compelled to leave on the basis of cruel treatment on
the part of her husband. She in turn prayed for a decree of
separation, a liquidation of their conjugal partnership, and an
allowance for counsel fees and permanent separate
maintenance.
CFI ruled in favor of the defendant and she was
granted alimony amounting to P400, also other fees
Plaintiff then asked for a restitution of conjugal rights, and a
permanent mandatory injunction requiring the defendant to
return to the conjugal home and live with him as his wife.
ISSUES: 1. WON defendant had sufficient cause for leaving
the conjugal home
2. WON plaintiff may be granted the restitution of conjugal rights
or absolute order or permanent mandatory injunction
HELD: 1. The wife had sufficient cause for leaving
the conjugal home. Cruelty done by plaintiff to defendant was
greatly exaggerated. The wife was inflicted with a disposition of
jealousy towards her husband in an aggravated degree. No
sufficient cause was present.
Courts should move with caution in enforcing the duty to provide
for the separate maintenance of the wife since this recognizes
the de facto separation of the two parties. Continued
cohabitation of the pair must be seen as impossible, and

separation must be necessary, stemming from the fault of the

husband. She is under obligation to return to the domicile.
When people understand that they must live togetherthey
learn to soften by mutual accommodation that yoke which they
know they cannot shake off; they become good husbands and
wivesnecessity is a powerful master in teaching the duties
which it imposes (Evans v. Evans)
2. On granting the restitution of conjugal rights. It is not within
the province of the courts to compel one of the spouses to
cohabit with, and render conjugal rights to, the other. In the
case of property rights, such an action may be maintained. Said
order, at best, would have no other purpose than to compel the
spouses to live together. Other countries, such as England and
Scotland have done this with much criticism.
Plaintiff is entitled to a judicial declaration that
the defendant absented herself without sufficient cause and it is
her duty to return. She is also not entitled to support.

A. M. NO. 02-11-11-SC [MARCH 15, 2003].

RE: PROPOSED RULE ON LEGAL SEPARATION
RESOLUTION
Acting on the letter of the Chairman of the Committee on
Revision of the Rules of Court submitting for this Court's
consideration and approval the Proposed Rule on Legal
Separation, the Court Resolved to APPROVED the same.
The Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than
March 7, 2003
March 4, 2003
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Sandoval Gutierrez, Carpio, Austria-Martinez,
Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern petitions for legal
separation under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition. - (a) Who may and when to file. - (1) A petition
for legal separation may be filed only by the husband or the
wife, as the case may be within five years from the time of the
occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
(b) Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
(c) Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
(d) Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous
marriage, whether in or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without justifiable
cause for more than one year.
(b) Contents and form. - The petition for legal separation shall:
(1) Allege the complete facts constituting the cause of action.
(2) State the names and ages of the common children of the
parties, specify the regime governing their property relations,
the properties involved, and creditors, if any. If there is no
adequate provision in a written agreement between the parties,
the petitioner may apply for a provisional order for spousal
support, custody and support of common children, visitation
rights, administration of community or conjugal property, and
other similar matters requiring urgent action,

(3) Be verified and accompanied by a certification against forum

shopping. The verification and certification must be personally
signed by the petitioner. No petition may be filed solely by
counsel or through an attorney-in-fact. If the petitioner is in a
foreign country, the verification and certification against forum
shopping shall be authenticated by the duly authorized officer of
the Philippine embassy or legation, consul general, consul or
vice-consul or consular agent in said country
(4) Be filed in six copies. The petitioner shall, within five days
from such filing, furnish a copy of the petition to the City or
Provincial Prosecutor and the creditors, if any, and submit to the
court proof of such service within the same period.
Failure to comply with the preceding requirements may be a
ground for immediate dismissal of the petition.
(c) Venue. - The petition shall be filed in the Family Court of the
province or city where the petitioner or the respondent has been
residing for at least six months prior to the date of filing "or in
The case of a non-resident respondent, where he may be found
in the Philippines, at the election of the petitioner.
Sec. 3. Summons. - The service of summons shall be governed
by Rule 14 of the Rules of Court and by the following rules:
(a) Where the respondent cannot be located at his given
address or his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service of summons may, by
leave of court, be effected upon him by publication once a week
for two consecutive weeks in a newspaper of general circulation
in the Philippines and in such place as the court may order. In
addition, a copy of the summons shall be served on respondent
at his last known address by registered mail or by any other
means the court may deem sufficient.
(b) The summons to be published shall be contained in an order
of the court with the following data; (1) title of the case; (2)
docket number; (3) nature of the petition; (4) principal grounds
of the petition and the reliefs prayed for, and (5) a directive for
respondent to answer within thirty days from the last issue of
publication.
Sec. 4. Motion to Dismiss. - No motion to dismiss the petition
shall be allowed except on the ground of lack of jurisdiction over
the subject matter or over the parties; provided, however, that
any other ground that might warrant a dismissal of the case may
be raised as an affirmative defense in an answer.
Sec. 5. Answer. - (a) The respondent shall file his answer within
fifteen days from receipt of summons, or within thirty days from
the last issue of publication in case of service of summons by
publication. The answer must be verified by respondent himself
and not by counsel or attorney-in-fact.
(b) If the respondent fails to file an answer, the court shall not
declare him in default.
(c) Where no answer is filed/or if the answer does not tender an
issue the court shall order the public prosecutor to investigate
whether collusion exists between the parties.
Sec. 6. Investigation Report of Public Prosecutor. - (a) Within
one one month after receipt of the

court order mentioned in paragraph (c) of the preceding section,

the public prosecutor shall submit a report to the court on
whether the parties are in collusion and serve copies on the
parties and their respective counsels, if any.
(b) If the public prosecutor finds that collusion exists, he shall
state the basis thereof in his report. The parties shall file their
respective comments on the finding of collusion within ten days
from receipt of copy of the report. The court shall set the report
for hearing and if convinced that parties are in collusion, it shall
dismiss the petition.
(c) If the public prosecutor reports that no collusion exists, the
court shall set the case for pre-trial. It shall be the duty of the
public prosecutor to appear for the State at the pre-trial.
Sec. 7. Social Worker. - The court may require a social worker
to conduct a case study and to submit the corresponding report
at least three days before the pre-trial. The court may also
require a case study at any stage of the case whenever
necessary,
Sec. 8. Pre-trial. (a) Pre-trial mandatory.- A pre-trial is mandatory. On motion or
motu proprio, the court shall set the pre-trial after the last
pleading has been served and filed, or upon receipt of the report
of the public prosecutor that no collusion exists between the
parties on a date not earlier than six months from date of the
filing of the petition.
(b) Notice of Pre-trial.- (1) The notice of pre-trial shall contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure the
receipt thereof by the adverse party at least three days before
the date of pre-trial.
(2) The notice shall be served separately on the parties and
their respective counsels as well as on the public prosecutor. It
shall be their duty to appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the respondent even if he
fails to file an answer. In case of summons by publication and
the respondent failed to file his answer, notice of pre-trial shall
be sent to respondent at his last known address.
Sec. 9. Contents of pre-trial brief. - The pre-trial brief shall
contain the following:
(1) A statement of the willingness of the parties to enter into
agreements as may be allowed by law, indicating the desired
terms thereof;
(2) A concise statement of their respective claims together with
the applicable laws and authorities;
(3) Admitted facts and proposed stipulations of facts, as well as
the disputed factual and legal issues;
(4) All the evidence to be presented, including expert opinion, if
any, briefly stating or describing the nature and purpose thereof;
(5) The number and names of the witnesses and their
respective affidavits; and
(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required

contents shall have the same effect as failure to appear at the
pre-trial under the succeeding section.
Sec. 10. Effect of failure to appear at the pre-trial. - (1) If the
petitioner fails to appear personally, the case shall be dismissed
unless his counsel or a duly authorized representative appears
in court and proves a valid excuse for the non-appearance of
the petitioner.
(2) If the respondent filed his answer but fails to appear, the
court shall proceed with the pre-trial and require the public
prosecutor to investigate the non-appearance of the respondent
and submit within fifteen days a report to the court stating
whether his non-appearance is due to any collusion between
the parties/ If there is no collusion the court shall require the
public prosecutor to intervene for the State during the trial on
the merits to prevent suppression or fabrication of evidence.
Sec. 11. Pre-trial conference. - At the pre-trial conference, the
court may refer the issues to a mediator who shall assist the
parties in reaching an agreement on matters not prohibited by
law.
The mediator shall render a report within one month from
referral which, for good reasons, the court may extend for a
period not exceeding one month.
In case mediation is not availed of or where it fails, the court
shall proceed with the pre-trial conference, on which occasion it
shall consider the advisability of receiving expert testimony and
such other matters as may aid in the prompt disposition of the
petition.
Sec. 12. Pre-trial order. - (a) The proceedings in the pre-trial
shall be recorded. Upon termination of the pre-trial, the court
shall issue a pre-trial order which shall recite in detail the
matters taken up in the conference, the action taken thereon,
the amendments allowed on the pleadings, and, except as to
the ground of legal separation, the agreements or admissions
made by the parties on any of the matters considered, including
any provisional order that may be necessary or agreed upon by
the parties.
(b) Should the action proceed to trial, the order shall contain a
recital of the following:
(1) Facts undisputed, admitted, and those which need not be
proved subject to Section 13 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been
marked and will be presented;
(4) Names of witnesses who will be presented and their
testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a directive to the public
prosecutor to appear for the State and take steps to prevent
collusion between the parties at any stage of the proceedings
and fabrication or suppression of evidence during the trial on
the merits.
(c) The parties shall not be allowed to raise issues or present
witnesses and evidence other than those stated in the pre-trial

order. The order shall control the trial of the case unless
modified by the court to prevent manifest injustice.
(d) The parties shall have five days from receipt of the pre-trial
order to propose corrections or modifications.
Sec. 13. Prohibited compromise. - The court shall not allow
compromise on prohibited matters, such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Sec. 14. Trial. - (a) The presiding judge shall personally conduct
the trial of the case. No delegation of the reception of evidence
to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(b) The grounds for legal separation must be proved. No
judgment on the pleadings, summary judgment, or confession of
judgment shall be allowed.
(c) The court may order the exclusion from the courtroom of all
persons, including members of the press, who do not have a
direct interest in the case. Such an order may be made if the
court determines on the record that requiring a party to testify in
open court would not enhance the ascertainment of truth; would
cause to the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would
violate the party's right to privacy; or would be offensive to
decency
(d) No copy shall be taken nor any examination or perusal of the
records of the case or parts thereof be made by any person
other than a party or counsel of a party, except by order of the
court.
Sec. 15. Memoranda. - The court may require the parties and
the public prosecutor to file their respective memoranda in
support of their claims within fifteen days from the date the trial
is terminated. No other pleadings or papers may be submitted
without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision,
with or without the memoranda.
Sec. 16. Decision. - (a) The court shall deny the petition on any
of the following grounds:
(1) The aggrieved party has condoned the offense or act
complained of or has consented to the commission of the
offense or act complained of;
(2) There is connivance in the commission of the offense - or act
constituting the ground for legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the decree
of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it shall
declare therein that the Decree of Legal Separation shall be

issued by the court only after full compliance with liquidation

under the Family Code.
However, in the absence of any property of the parties, the court
shall forthwith issue a Decree of Legal Separation which shall
be registered in the Civil Registry where the marriage was
recorded and in the Civil Registry where the Family Court
granting the legal separation is located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each other
but the marriage bond is not severed;
(2) The obligation of mutual support between the spouses
ceases; and
(3) The offending spouse is disqualified from inheriting from the
innocent spouse by intestate succession, and provisions in
favor of the offending spouse made in the will of the innocent
spouse are revoked by operation of law.
(d) The parties, including the Solicitor General and the public
prosecutor, shall be served with copies of the decision
personally or by registered mail. If the respondent summoned
by publication failed to appear in the action, the dispositive part
of the decision shall also be published once in a newspaper of
general circulation.
Sec. 17. Appeal. (a) Pre-condition. - No appeal from the decision shall be allowed
unless the appellant has filed a motion for reconsideration or
new trial within fifteen days from notice of judgment.
(b) Notice of Appeal - An aggrieved party or the Solicitor
General may appeal from the decision by filing a Notice of
Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of
the notice of appeal upon the adverse parties.
Sec. 18. Liquidation, partition and distribution, custody, and
support of minor children. - Upon entry of the judgment granting
the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family
Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the
spouses, including custody and support of common children,
under the Family Code unless such matters had been
adjudicated in previous judicial proceedings.
Sec. 19. Issuance of Decree of Legal Separation. - (a) The court
shall issue the Decree of Legal Separation after:
(1) registration of the entry of judgment granting the petition for
legal separation in the Civil Registry where the marriage was
celebrated and in the Civil Registry where the Family Court is
located; and
(2) registration of the approved partition and distribution of the
properties of the spouses, in the proper Register of Deeds
where the real properties are located.
(b) The court shall quote in the Decree the dispositive portion of
the judgment entered and attach to the Decree the approved
deed of partition.
Sec. 20. Registration and publication of the Decree of Legal
Separation; decree as best evidence. -

(a) Registration of decree. - The prevailing party shall cause the

registration of the Decree in the Civil Registry where the
marriage was registered, in the Civil Registry of the place where
the Family Court is situated, and in the National Census and
Statistics Office. He shall report to the court compliance with this
requirement within thirty days iron receipt of the copy of the
Decree.
(b) Publication of decree.-- In case service of summons was
made by publication, the parties shall cause the publication of
the Decree once in a newspaper of general circulation.
(c) Best evidence. - The registered Decree shall be the best
evidence to prove the legal separation of the parties and shall
serve as notice to third persons concerning the properties of
petitioner and respondent.
Sec. 21. Effect of death of a party; duty of the Family Court or
Appellate Court. - (a) In case a party dies at any stage of me
proceedings before the entry of judgment, the court shall order
the case closed and terminated without prejudice to the
settlement of estate proper proceedings in the regular courts.
(b) If the party dies after the entry of judgment, the same shall
be binding upon the parties and their successors in interest in
the settlement of the estate in the regular courts.
Sec. 22. Petition for revocation of donations. - (a) Within five (5)
years from the date the decision granting the petition for legal
separation has become final, the innocent spouse may file a
petition under oath the same proceeding for legal separation to
revoke the donations in favor of the offending spouse.
(b) The revocation of the donations shall be recorded in the
Register of Deeds of Deeds in the places where the properties
are located.
(c) Alienations, liens, and encumbrances registered in good
faith. before the recording of the petition for revocation in the
registries of property shall be respected.
(d) After the issuance of the Decree of Legal Separation, the
innocent spouse may revoke the designation of the offending
spouse as a beneficiary in any insurance policy even if such
designation be stipulated as irrevocable. The revocation or
change shall take effect upon written notification thereof to the
insurer.
Sec. 23. Decree of Reconciliation. - (a) If the spouses had
reconciled, a joint manifestation under oath, duly signed by the
spouses, may be filed in the same proceeding for legal
separation.
(b) If the reconciliation occurred while the proceeding for legal
separation is pending, the court shall immediately issue an
order terminating the proceeding.
(c) If the reconciliation occurred after the rendition of the
judgment granting the petition for legal separation but before the
issuance of the Decree, the spouses shall express in their
manifestation whether or not they agree to revive the former
regime of their property relations or choose a new regime.
The court shall immediately issue a Decree of Reconciliation
declaring that the legal separation proceeding is set aside and

specifying the regime of property relations under which the

spouses shall be covered.
(d) If the spouses reconciled after the issuance of the Decree,
the court, upon proper motion, shall issue a decree of
reconciliation declaring therein that the Decree is set aside but
the separation of property and any forfeiture of the share of the
guilty spouse already effected subsists, unless the spouses
have agreed to revive their former regime of property relations
or adopt a new regime.
(e) In case of paragraphs (b), (c), and (d). if the reconciled
spouses choose to adopt a regime of property relations different
from that which they had prior to the filing of the petition for legal
separation, the spouses shall comply with Section 24 hereof.
(f) The decree of reconciliation shall be recorded in the Civil
Registries where the marriage and the Decree had been
registered.
Sec. 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c)
above, the parties shall file a verified motion for revival of
regime of property relations or the adoption of another regime of
property relations in the same proceeding for legal separation
attaching to said motion their agreement for the approval of the
court.
(b) The agreement which shall be verified shall specify the
following:
(1) The properties to be contributed to the restored or new
regime;
(2) Those to be retained as separate properties of each spouse;
and
(3) The names of all their known creditors, their addresses, and
the amounts owing to each.
(c) The creditors shall be furnished with copies of the motion
and the agreement.
(d) The court shall require the spouses to cause the publication
of their verified motion for two consecutive weeks in a
newspaper of general circulation.
(e) After due hearing, and the court decides to grant the motion,
it shall issue an order directing the parties to record the order in
the proper registries of property within thirty days from receipt of
a copy of the order and submit proof of compliance within the
same period.
Sec. 25. Effectivity. - This Rule shall take effect on March
15,2003 following its publication in a newspaper of general
circulation not later than March 7, 2003.