SECOND DIVISION In an order7 dated October 8, 1999, the RTC granted respondent’s forum shopping or of the rule which
C granted respondent’s forum shopping or of the rule which proscribes the splitting of a
G.R. No. 141528 October 31, 2006
OSCAR P. MALLION, petitioner,
vs.
EDITHA ALCANTARA, respondent.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules
of Court raising a question of law: Does a previous final judgment
denying a petition for declaration of nullity on the ground of
psychological incapacity bar a subsequent petition for declaration of
nullity on the ground of lack of marriage license?
The facts are not disputed:
On October 24, 1995, petitioner Oscar P. Mallion filed a
petition1 with the Regional Trial Court (RTC), Branch 29, of San Pablo
City seeking a declaration of nullity of his marriage to respondent
Editha Alcantara under Article 36 of Executive Order No. 209, as
amended, otherwise known as the Family Code, citing respondent’s
alleged psychological incapacity. The case was docketed as Civil Case
No. SP 4341-95. After trial on the merits, the RTC denied the
petition in a decision2 dated November 11, 1997 upon the finding
that petitioner "failed to adduce preponderant evidence to warrant
the grant of the relief he is seeking."3 The appeal filed with the
Court of Appeals was likewise dismissed in a resolution 4 dated June
11, 1998 for failure of petitioner to pay the docket and other lawful
fees within the reglementary period.
After the decision in Civil Case No. SP 4341-95 attained finality,
petitioner filed on July 12, 1999 another petition 5 for declaration of
nullity of marriage with the RTC of San Pablo City, this time alleging
that his marriage with respondent was null and void due to the fact
that it was celebrated without a valid marriage license. For her part,
respondent filed an answer with a motion to dismiss6 dated August
13, 1999, praying for the dismissal of the petition on the ground
of res judicata and forum shopping.
motion to dismiss, the dispositive portion of which reads:
WHEREFORE, for Forum Shopping and Multiplicity of Suits,
the Motion to Dismiss is GRANTED. This case is DISMISSED.
SO ORDERED.8
Petitioner’s motion for reconsideration was also denied in an
order9 dated January 21, 2000.
Hence, this petition which alleges, as follows:
A. IN DISMISSING PETITIONER’S PETITION FOR THE
DECLARATION OF HIS MARRIAGE AS NULL AND VOID AB
INITIO FOR LACK OF THE REQUISITE MARRIAGE LICENSE
BECAUSE OF (THE) DISMISSAL OF AN EARLIER PETITION
FOR DECLARATION OF NULLITY OF THE SAME MARRIAGE
ON THE GROUND OF HIS WIFE’S PSYCHOLOGICAL
INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE, THE
TRIAL COURT HAD DECIDED A QUESTION OF SUBSTANCE
WHICH HAS PROBABLY NOT HERETOFORE BEEN
DETERMINED SQUARELY AND DEFINITIVELY BY THIS
COURT, OR HAD DECIDED IT IN A WAY NOT IN ACCORD
WITH LAW.
B. IN DISMISSING PETITIONER’S PETITION FOR THE
DECLARATION OF NULLITY OF HIS MARRIAGE FOR LACK OF
THE REQUISITE MARRIAGE LICENSE, THE TRIAL COURT HAD
CONFUSED, DISTORTED AND MISAPPLIED THE
FUNDAMENTAL RULES AND CONCEPTS ON RES JUDICATA,
SPLITTING OF A CAUSE OF ACTION AND FORUM
SHOPPING.10
Petitioner argues that while the relief prayed for in the two cases
was the same, that is, the declaration of nullity of his marriage to
respondent, the cause of action in the earlier case was distinct and
separate from the cause of action in the present case because the
operative facts upon which they were based as well as the evidence
required to sustain either were different. Because there is no
identity as to the cause of action, petitioner claims that res
judicata does not lie to bar the second petition. In this connection,
petitioner maintains that there was no violation of the rule on
cause of action.
On the other hand, respondent, in her comment dated May 26,
2000, counters that while the present suit is anchored on a different
ground, it still involves the same issue raised in Civil Case No. SP
4341-95, that is, the validity of petitioner and respondent’s
marriage, and prays for the same remedy, that is, the declaration of
nullity of their marriage. Respondent thus contends that petitioner
violated the rule on forum shopping. Moreover, respondent asserts
that petitioner violated the rule on multiplicity of suits as the ground
he cites in this petition could have been raised during the trial in
Civil Case No. SP 4341-95.
The petition lacks merit.
The issue before this Court is one of first impression. Should the
matter of the invalidity of a marriage due to the absence of an
essential requisite prescribed by Article 4 of the Family Code be
raised in the same proceeding where the marriage is being
impugned on the ground of a party’s psychological incapacity under
Article 36 of the Family Code?
Petitioner insists that because the action for declaration of nullity of
marriage on the ground of psychological incapacity and the action
for declaration of nullity of marriage on the ground of absence of
marriage license constitute separate causes of action, the present
case would not fall under the prohibition against splitting a single
cause of action nor would it be barred by the principle of res
judicata.
The contention is untenable.
Res judicata is defined as "a matter adjudged; a thing judicially acted
upon or decided; a thing or matter settled by judgment. It also
refers to the rule that a final judgment or decree on the merits by a
court of competent jurisdiction is conclusive of the rights of the
parties or their privies in all later suits on points and matters
determined in the former suit."11
This doctrine is a rule which pervades every well-regulated system
of jurisprudence and is founded upon the following precepts of
common law, namely: (1) public policy and necessity, which makes it
to the interest of the State that there should be an end to litigation,
and (2) the hardship on the individual that he should be vexed twice
for the same cause. A contrary doctrine would subject the public
peace and quiet to the will and neglect of individuals and prefer the
gratification of the litigious disposition on the part of suitors to the
preservation of the public tranquility and happiness.12
In this jurisdiction, the concept of res judicata is embodied in
Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus:
SEC. 47. Effect of judgments or final orders. — The effect of
a judgment or final order rendered by a court of the
Philippines, having jurisdiction to pronounce the judgment
or final order, may be as follows:
(a) In case of a judgment or final order against a specific
thing or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to
the thing, the will or administration, or the condition,
status or relationship of the person; however, the probate
of a will or granting of letters of administration shall only
be prima facie evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to any other
matter that could have been raised in relation thereto,
conclusive between the parties and their successors in
interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing
and under the same title and in the same capacity; and,
(c) In any other litigation between the same parties or
their successors in interest, that only is deemed to have
been adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary
thereto.
The above provision outlines the dual aspect of res
judicata.13 Section 47 (b) pertains to it in its concept as "bar by prior
judgment" or "estoppel by verdict," which is the effect of a
judgment as a bar to the prosecution of a second action upon the
same claim, demand or cause of action. On the other hand, Section
47 (c) pertains to res judicata in its concept as "conclusiveness of
judgment" or otherwise known as the rule of auter action
pendant which ordains that issues actually and directly resolved in a
former suit cannot again be raised in any future case between the
same parties involving a different cause of action.14 Res judicata in
its concept as a bar by prior judgment obtains in the present case.
Res judicata in this sense requires the concurrence of the following
requisites: (1) the former judgment is final; (2) it is rendered by a
court having jurisdiction over the subject matter and the parties; (3)
it is a judgment or an order onthe merits; and (4) there is -- between
the first and the second actions -- identity of parties, of subject
matter, and of causes of action.15
Petitioner does not dispute the existence of the first three
requisites. What is in issue is the presence of the fourth requisite. In
this regard, the test to determine whether the causes of action are
identical is to ascertain whether the same evidence will sustain both
actions, or whether there is an identity in the facts essential to the
maintenance of the two actions. If the same facts or evidence would
sustain both, the two actions are considered the same, and a
judgment in the first case is a bar to the subsequent action.16
Based on this test, petitioner would contend that the two petitions
brought by him seeking the declaration of nullity of his marriage are
anchored on separate causes of action for the evidence necessary to
sustain the first petition which was anchored on the alleged
psychological incapacity of respondent is different from the
evidence necessary to sustain the present petition which is
anchored on the purported absence of a marriage license.
Petitioner, however, forgets that he is simply invoking different
grounds for the same cause of action. By definition, a cause of
action is the act or omission by which a party violates the right of
another.17 In both petitions, petitioner has the same cause - the
declaration of nullity of his marriage to respondent. What differs is
the ground upon which the cause of action is predicated. These
grounds cited by petitioner essentially split the various aspects of
the pivotal issue that holds the key to the resolution of this
controversy, that is, the actual status of petitioner and respondent’s
marriage.
Furthermore, the instant case is premised on the claim that the
marriage is null and void because no valid celebration of the same
took place due to the alleged lack of a marriage license. In Civil Case
No. SP 4341-95, however, petitioner impliedly conceded that the
marriage had been solemnized and celebrated in accordance with
law. Petitioner is now bound by this admission. The alleged absence
of a marriage license which petitioner raises now could have been
presented and heard in the earlier case. Suffice it to state that
parties are bound not only as regards every matter offered and
received to sustain or defeat their claims or demand but as to any
other admissible matter which might have been offered for that
purpose and of all other matters that could have been adjudged in
that case.18
It must be emphasized that a party cannot evade or avoid the
application of res judicata by simply varying the form of his action or
adopting a different method of presenting his case. 19 As this Court
stated in Perez v. Court of Appeals:20
x x x the statement of a different form of liability is not a
different cause of action, provided it grows out of the same
transaction or act and seeks redress for the wrong. Two
actions are not necessarily for different causes of action
simply because the theory of the second would not have
been open under the pleadings in the first. A party cannot
preserve the right to bring a second action after the loss of
the first merely by having circumscribed and limited
theories of recovery opened by the pleadings in the first.
It bears stressing that a party cannot divide the grounds for
recovery. A plaintiff is mandated to place in issue in his
pleading, all the issues existing when the suit began. A
lawsuit cannot be tried piecemeal. The plaintiff is bound
to set forth in his first action every ground for relief which
he claims to exist and upon which he relied, and cannot
be permitted to rely upon them by piecemeal in
successive action to recover for the same wrong or injury.
 A party seeking to enforce a claim, legal or equitable,
must present to the court, either by the pleadings or
proofs, or both, on the grounds upon which to expect a
judgment in his favor. He is not at liberty to split up his
demands, and prosecute it by piecemeal or present only a
portion of the grounds upon which a special relief is
sought and leave the rest to the presentment in a second
suit if the first fails. There would be no end to litigation if
such piecemeal presentation is allowed. (Citations
omitted.)

In sum, litigants are provided with the options on the course of

action to take in order to obtain judicial relief. Once an option has
been taken and a case is filed in court, the parties must ventilate all
matters and relevant issues therein. The losing party who files
another action regarding the same controversy will be needlessly
squandering time, effort and financial resources because he is
barred by law from litigating the same controversy all over again.21

Therefore, having expressly and impliedly conceded the validity of

their marriage celebration, petitioner is now deemed to have
waived any defects therein. For this reason, the Court finds that the
present action for declaration of nullity of marriage on the ground
of lack of marriage license is barred by the decision dated November
11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil Case No. SP
4341-95.

WHEREFORE, the petition is DENIED for lack of merit. Costs against

petitioner.

SO ORDERED.
THIRD DIVISION
G.R. No. 189538 February 10, 2014
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MERLINDA L. OLAYBAR, Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the
Rules of Court are the Regional Trial Court1(RTC) Decision2 dated
May 5, 2009 and Order3 dated August 25, 2009 in SP. Proc. No.
16519-CEB. The assailed decision granted respondent Merlinda L.
Olaybar's petition for cancellation of entries in the latter's marriage
contract; while the assailed order denied the motion for
reconsideration filed by petitioner Republic of the Philippines
through the Office of the Solicitor General (OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office (NSO) a
Certificate of No Marriage (CENOMAR) as one of the requirements
for her marriage with her boyfriend of five years. Upon receipt
thereof, she discovered that she was already married to a certain Ye
Son Sune, a Korean National, on June 24, 2002, at the Office of the
Municipal Trial Court in Cities (MTCC), Palace of Justice. She denied
having contracted said marriage and claimed that she did not know
the alleged husband; she did not appear before the solemnizing
officer; and, that the signature appearing in the marriage certificate
is not hers.4 She, thus, filed a Petition for Cancellation of Entries in
the Marriage Contract, especially the entries in the wife portion
thereof.5 Respondent impleaded the Local Civil Registrar of Cebu
City, as well as her alleged husband, as parties to the case.
During trial, respondent testified on her behalf and explained that
she could not have appeared before Judge Mamerto Califlores, the
supposed solemnizing officer, at the time the marriage was allegedly
celebrated, because she was then in Makati working as a medical
distributor in Hansao Pharma. She completely denied having known
the supposed husband, but she revealed that she recognized the
named witnesses to the marriage as she had met them while she
was working as a receptionist in Tadels Pension House. She believed
that her name was used by a certain Johnny Singh, who owned a
travel agency, whom she gave her personal circumstances in order
for her to obtain a passport.6 Respondent also presented as witness
a certain Eufrocina Natinga, an employee of MTCC, Branch 1, who
confirmed that the marriage of Ye Son Sune was indeed celebrated
in their office, but claimed that the alleged wife who appeared was
definitely not respondent.7 Lastly, a document examiner testified
that the signature appearing in the marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition is granted
in favor of the petitioner, Merlinda L. Olaybar. The Local Civil
Registrar of Cebu City is directed to cancel all the entries in the WIFE
portion of the alleged marriage contract of the petitioner and
respondent Ye Son Sune.
SO ORDERED.9
Finding that the signature appearing in the subject marriage
contract was not that of respondent, the court found basis in
granting the latter’s prayer to straighten her record and rectify the
terrible mistake.10
Petitioner, however, moved for the reconsideration of the assailed
Decision on the grounds that: (1) there was no clerical spelling,
typographical and other innocuous errors in the marriage contract
for it to fall within the provisions of Rule 108 of the Rules of Court;
and (2) granting the cancellation of all the entries in the wife portion
of the alleged marriage contract is, in effect, declaring the marriage
void ab initio.11
In an Order dated August 25, 2009, the RTC denied petitioner’s
motion for reconsideration couched in this wise:
WHEREFORE, the court hereby denies the Motion for
Reconsideration filed by the Republic of the Philippines. Furnish
copies of this order to the Office of the Solicitor General, the
petitioner’s counsel, and all concerned government agencies.
SO ORDERED.12
Contrary to petitioner’s stand, the RTC held that it had jurisdiction
to take cognizance of cases for correction of entries even on
substantial errors under Rule 108 of the Rules of Court being the
appropriate adversary proceeding required. Considering that
respondent’s identity was used by an unknown person to contract
marriage with a Korean national, it would not be feasible for
respondent to institute an action for declaration of nullity of
marriage since it is not one of the void marriages under Articles 35
and 36 of the Family Code.13
Petitioner now comes before the Court in this Petition for Review on
Certiorari under Rule 45 of the Rules of Court seeking the reversal of
the assailed RTC Decision and Order based on the following
grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN
THERE ARE ERRORS IN THE ENTRIES SOUGHT TO BE CANCELLED OR
CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE
PORTION OF THE ALLEGED MARRIAGE CONTRACT," IS IN EFFECT
DECLARING THE MARRIAGE VOID AB INITIO.14
Petitioner claims that there are no errors in the entries sought to be
cancelled or corrected, because the entries made in the certificate
of marriage are the ones provided by the person who appeared and
represented herself as Merlinda L. Olaybar and are, in fact, the
latter’s personal circumstances.15 In directing the cancellation of the
entries in the wife portion of the certificate of marriage, the RTC, in
effect, declared the marriage null and void ab initio. 16Thus, the
petition instituted by respondent is actually a petition for
declaration of nullity of marriage in the guise of a Rule 108
proceeding.17
We deny the petition.
At the outset, it is necessary to stress that a direct recourse to this
Court from the decisions and final orders of the RTC may be taken
where only questions of law are raised or involved. There is a
question of law when the doubt arises as to what the law is on a
certain state of facts, which does not call for the examination of the
probative value of the evidence of the parties.18 Here, the issue
raised by petitioner is whether or not the cancellation of entries in
the marriage contract which, in effect, nullifies the marriage may be
undertaken in a Rule 108 proceeding. Verily, petitioner raised a pure
question of law.
Rule 108 of the Rules of Court sets forth the rules on cancellation or
correction of entries in the civil registry, to wit:
SEC. 1. Who may file petition. – Any person interested in
any act, event, order or decree concerning the civil status
of persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction
of any entry relating thereto, with the Regional Trial Court
of the province where the corresponding civil registry is
located.
SEC. 2. Entries subject to cancellation or correction. – Upon
good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments
of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship;
(l) civil interdiction; (m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and (o) changes of
name.
SEC. 3. Parties. – When cancellation or correction of an
entry in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and Publication. – Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition.
The court shall also cause the order to be published once a
week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. – The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. – The court in which the
proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.
SEC. 7. Order. – After hearing, the court may either dismiss
the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
Rule 108 of the Rules of Court provides the procedure for
cancellation or correction of entries in the civil registry. The
proceedings may either be summary or adversary. If the correction
is clerical, then the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or nationality of a
party, it is deemed substantial, and the procedure to be adopted is
adversary. Since the promulgation of Republic v. Valencia 19 in 1986,
the Court has repeatedly ruled that "even substantial errors in a civil
registry may be corrected through a petition filed under Rule 108,
with the true facts established and the parties aggrieved by the
error availing themselves of the appropriate adversarial
proceeding."20 An appropriate adversary suit or proceeding is one
where the trial court has conducted proceedings where all relevant
facts have been fully and properly developed, where opposing
counsel have been given opportunity to demolish the opposite
party’s case, and where the evidence has been thoroughly weighed
and considered.21
It is true that in special proceedings, formal pleadings and a hearing
may be dispensed with, and the remedy [is] granted upon mere
application or motion. However, a special proceeding is not always
summary. The procedure laid down in Rule 108 is not a summary
proceeding per se. It requires publication of the petition; it
mandates the inclusion as parties of all persons who may claim
interest which would be affected by the cancellation or correction; it
also requires the civil registrar and any person in interest to file their
opposition, if any; and it states that although the court may make
orders expediting the proceedings, it is after hearing that the court
shall either dismiss the petition or issue an order granting the same.
Thus, as long as the procedural requirements in Rule 108 are
followed, it is the appropriate adversary proceeding to effect
substantial corrections and changes in entries of the civil register. 22
In this case, the entries made in the wife portion of the certificate of
marriage are admittedly the personal circumstances of respondent.
The latter, however, claims that her signature was forged and she
was not the one who contracted marriage with the purported
husband. In other words, she claims that no such marriage was
entered into or if there was, she was not the one who entered into
such contract. It must be recalled that when respondent tried to
obtain a CENOMAR from the NSO, it appeared that she was married
to a certain Ye Son Sune. She then sought the cancellation of entries
in the wife portion of the marriage certificate.
In filing the petition for correction of entry under Rule 108,
respondent made the Local Civil Registrar of Cebu City, as well as
her alleged husband Ye Son Sune, as parties-respondents. It is
likewise undisputed that the procedural requirements set forth in
Rule 108 were complied with. The Office of the Solicitor General
was likewise notified of the petition which in turn authorized the
Office of the City Prosecutor to participate in the proceedings. More
importantly, trial was conducted where respondent herself, the
stenographer of the court where the alleged marriage was
conducted, as well as a document examiner, testified. Several
documents were also considered as evidence. With the testimonies
and other evidence presented, the trial court found that the
signature appearing in the subject marriage certificate was different
from respondent’s signature appearing in some of her government
issued identification cards.23 The court thus made a categorical
conclusion that respondent’s signature in the marriage certificate
was not hers and, therefore, was forged. Clearly, it was established
that, as she claimed in her petition, no such marriage was
celebrated.
Indeed the Court made a pronouncement in the recent case of WHEREFORE, premises considered, the petition is DENIED for lack of
Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi Maekara, Local merit. The Regional Trial Court Decision dated May 5, 2009 and
Civil Registrar of Quezon City, and the Administrator and Civil Order dated August 25, 2009 in SP. Proc. No. 16519-CEB, are
Registrar General of the National Statistics Office24 that: AFFIRMED.

To be sure, a petition for correction or cancellation of an entry in SO ORDERED.

the civil registry cannot substitute for an action to invalidate a
marriage. A direct action is necessary to prevent circumvention of
the substantive and procedural safeguards of marriage under the
Family Code, A.M. No. 02-11-10-SC and other related laws. Among
these safeguards are the requirement of proving the limited
grounds for the dissolution of marriage, support pendente lite of the
spouses and children, the liquidation, partition and distribution of
the properties of the spouses and the investigation of the public
prosecutor to determine collusion. A direct action for declaration of
nullity or annulment of marriage is also necessary to prevent
circumvention of the jurisdiction of the Family Courts under the
Family Courts Act of 1997 (Republic Act No. 8369), as a petition for
cancellation or correction of entries in the civil registry may be filed
in the Regional Trial Court where the corresponding civil registry is
located. In other words, a Filipino citizen cannot dissolve his
marriage by the mere expedient of changing his entry of marriage in
the civil registry.

Aside from the certificate of marriage, no such evidence was

presented to show the existence of marriage.1âwphi1 Rather,
respondent showed by overwhelming evidence that no marriage
was entered into and that she was not even aware of such
existence. The testimonial and documentary evidence clearly
established that the only "evidence" of marriage which is the
marriage certificate was a forgery. While we maintain that Rule 108
cannot be availed of to determine the validity of marriage, we
cannot nullify the proceedings before the trial court where all the
parties had been given the opportunity to contest the allegations of
respondent; the procedures were followed, and all the evidence of
the parties had already been admitted and examined. Respondent
indeed sought, not the nullification of marriage as there was no
marriage to speak of, but the correction of the record of such
marriage to reflect the truth as set forth by the evidence. Otherwise
stated, in allowing the correction of the subject certificate of
marriage by cancelling the wife portion thereof, the trial court did
not, in any way, declare the marriage void as there was no marriage
to speak of.
SECOND DIVISION
G.R. No. 189121 July 31, 2013
AMELIA GARCIA-QUIAZON, JENNETH QUIAZON and MARIA
JENNIFER QUIAZON, Petitioners,
vs.
MA. LOURDES BELEN, for and in behalf of MARIA LOURDES ELISE
QUIAZON, Respondent.
DECISION
PEREZ, J.:
This is a Petition for Review on Certiorari filed pursuant to Rule 45 of
the Revised Rules of Court, primarily assailing the 28 November
2008 Decision rendered by the Ninth Division of the Court of
Appeals in CA-G.R. CV No. 88589,1the decretal portion of which
states:
WHEREFORE, premises considered, the appeal is hereby DENIED.
The assailed Decision dated March 11, 2005, and the Order dated
March 24, 2006 of the Regional Trial Court, Branch 275, Las Piñas
City are AFFIRMED in toto.2
The Facts
This case started as a Petition for Letters of Administration of the
Estate of Eliseo Quiazon (Eliseo), filed by herein respondents who
are Eliseo’s common-law wife and daughter. The petition was
opposed by herein petitioners Amelia Garcia-Quaizon (Amelia) to
whom Eliseo was married. Amelia was joined by her children,
Jenneth Quiazon (Jenneth) and Maria Jennifer Quiazon (Jennifer).
Eliseo died intestate on 12 December 1992.
On 12 September 1994, Maria Lourdes Elise Quiazon (Elise),
represented by her mother, Ma. Lourdes Belen (Lourdes), filed a
Petition for Letters of Administration before the Regional Trial Court
(RTC) of Las Piñas City.3 In her Petition docketed as SP Proc. No. M-
3957, Elise claims that she is the natural child of Eliseo having been
conceived and born at the time when her parents were both
capacitated to marry each other. Insisting on the legal capacity of
Eliseo and Lourdes to marry, Elise impugned the validity of Eliseo’s
marriage to Amelia by claiming that it was bigamous for having been
contracted during the subsistence of the latter’s marriage with one
Filipito Sandico (Filipito). To prove her filiation to the decedent,
Elise, among others, attached to the Petition for Letters of
Administration her Certificate of Live Birth4 signed by Eliseo as her
father. In the same petition, it was alleged that Eliseo left real
properties worth ₱2,040,000.00 and personal properties worth
₱2,100,000.00. In order to preserve the estate of Eliseo and to
prevent the dissipation of its value, Elise sought her appointment as
administratrix of her late father’s estate.
Claiming that the venue of the petition was improperly laid, Amelia,
together with her children, Jenneth and Jennifer, opposed the
issuance of the letters of administration by filing an
Opposition/Motion to Dismiss.5 The petitioners asserted that as
shown by his Death Certificate, 6 Eliseo was a resident of Capas,
Tarlac and not of Las Piñas City, at the time of his death. Pursuant to
Section 1, Rule 73 of the Revised Rules of Court,7 the petition for
settlement of decedent’s estate should have been filed in Capas,
Tarlac and not in Las Piñas City. In addition to their claim of
improper venue, the petitioners averred that there are no factual
and legal bases for Elise to be appointed administratix of Eliseo’s
estate.
In a Decision8 dated 11 March 2005, the RTC directed the issuance
of Letters of Administration to Elise upon posting the necessary
bond. The lower court ruled that the venue of the petition was
properly laid in Las Piñas City, thereby discrediting the position
taken by the petitioners that Eliseo’s last residence was in Capas,
Tarlac, as hearsay. The dispositive of the RTC decision reads:
Having attained legal age at this time and there being no showing of
any disqualification or incompetence to serve as administrator, let
letters of administration over the estate of the decedent Eliseo
Quiazon, therefore, be issued to petitioner, Ma. Lourdes Elise
Quiazon, after the approval by this Court of a bond in the amount of
₱100,000.00 to be posted by her.9
On appeal, the decision of the trial court was affirmed in toto in the
28 November 2008 Decision10 rendered by the Court of Appeals in
CA-G.R.CV No. 88589. In validating the findings of the RTC, the Court
of Appeals held that Elise was able to prove that Eliseo and Lourdes
lived together as husband and wife by establishing a common
residence at No. 26 Everlasting Road, Phase 5, Pilar Village, Las Piñas
City, from 1975 up to the time of Eliseo’s death in 1992. For
purposes of fixing the venue of the settlement of Eliseo’s estate, the
Court of Appeals upheld the conclusion reached by the RTC that the
decedent was a resident of Las Piñas City. The petitioners’ Motion
for Reconsideration was denied by the Court of Appeals in its
Resolution11 dated 7 August 2009.
The Issues
The petitioners now urge Us to reverse the assailed Court of Appeals
Decision and Resolution on the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING
THAT ELISEO QUIAZON WAS A RESIDENT OF LAS PIÑAS AND
THEREFORE, THE PETITION FOR LETTERS OF
ADMINISTRATION WAS PROPERLY FILED WITH THE RTC OF
LAS PIÑAS;
II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING
THAT AMELIA GARCIA-QUIAZON WAS NOT LEGALLY
MARRIED TO ELISEO QUIAZON DUE TO PREEXISTING
MARRIAGE; AND
III. THE COURT OF APPEALS OVERLOOKED THE FACT THAT
ELISE QUIAZON HAS NOT SHOWN ANY INTEREST IN THE
PETITION FOR LETTERS OF ADMINISTRATION.12
The Court’s Ruling
We find the petition bereft of merit.
Under Section 1, Rule 73 of the Rules of Court, the petition for
letters of administration of the estate of a decedent should be filed
in the RTC of the province where the decedent resides at the time of
his death:
Sec. 1. Where estate of deceased persons settled. – If the decedent
is an inhabitant of the Philippines at the time of his death, whether
a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First
Instance now Regional Trial Court in the province in which he
resides at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance now Regional Trial Court
of any province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears
on the record. (Emphasis supplied).
The term "resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term
"resides," like the terms "residing" and "residence," is elastic and
should be interpreted in the light of the object or purpose of the
statute or rule in which it is employed. In the application of venue
statutes and rules – Section 1, Rule 73 of the Revised Rules of Court
is of such nature – residence rather than domicile is the significant
factor.13Even where the statute uses word "domicile" still it is
construed as meaning residence and not domicile in the technical
sense.14 Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as
the term "inhabitant."15In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of
abode.16 It signifies physical presence in a place and actual stay
thereat.17 Venue for ordinary civil actions and that for special
proceedings have one and the same meaning.18 As thus defined,
"residence," in the context of venue provisions, means nothing
more than a person’s actual residence or place of abode, provided
he resides therein with continuity and consistency.19
Viewed in light of the foregoing principles, the Court of Appeals
cannot be faulted for affirming the ruling of the RTC that the venue
for the settlement of the estate of Eliseo was properly laid in Las
Piñas City. It is evident from the records that during his lifetime,
Eliseo resided at No. 26 Everlasting Road, Phase 5, Pilar Village, Las
Piñas City. For this reason, the venue for the settlement of his estate
may be laid in the said city.
In opposing the issuance of letters of administration, the petitioners
harp on the entry in Eliseo’s Death Certificate that he is a resident of
Capas, Tarlac where they insist his estate should be settled. While
the recitals in death certificates can be considered proofs of a
decedent’s residence at the time of his death, the contents thereof,
however, is not binding on the courts. Both the RTC and the Court of
Appeals found that Eliseo had been living with Lourdes, deporting
themselves as husband and wife, from 1972 up to the time of his
death in 1995. This finding is consistent with the fact that in 1985,
Eliseo filed an action for judicial partition of properties against
Amelia before the RTC of Quezon City, Branch 106, on the ground
that their marriage is void for being bigamous. 20 That Eliseo went to
the extent of taking his marital feud with Amelia before the courts
of law renders untenable petitioners’ position that Eliseo spent the
final days of his life in Tarlac with Amelia and her children. It
disproves rather than supports petitioners’ submission that the
lower courts’ findings arose from an erroneous appreciation of the
evidence on record. Factual findings of the trial court, when
affirmed by the appellate court, must be held to be conclusive and
binding upon this Court.21
Likewise unmeritorious is petitioners’ contention that the Court of
Appeals erred in declaring Amelia’s marriage to Eliseo as void ab
initio. In a void marriage, it was though no marriage has taken place,
thus, it cannot be the source of rights. Any interested party may
attack the marriage directly or collaterally. A void marriage can be
questioned even beyond the lifetime of the parties to the
marriage.22 It must be pointed out that at the time of the
celebration of the marriage of Eliseo and Amelia, the law in effect
was the Civil Code, and not the Family Code, making the ruling in
Niñal v. Bayadog23 applicable four-square to the case at hand. In
Niñal, the Court, in no uncertain terms, allowed therein petitioners
to file a petition for the declaration of nullity of their father’s
marriage to therein respondent after the death of their father, by
contradistinguishing void from voidable marriages, to wit:
Consequently, void marriages can be questioned even after the
death of either party but voidable marriages can be assailed only
during the lifetime of the parties and not after death of either, in
which case the parties and their offspring will be left as if the
marriage had been perfectly valid. That is why the action or defense
for nullity is imprescriptible, unlike voidable marriages where the
action prescribes. Only the parties to a voidable marriage can assail
it but any proper interested party may attack a void marriage.24
It was emphasized in Niñal that in a void marriage, no marriage has
taken place and it cannot be the source of rights, such that any
interested party may attack the marriage directly or collaterally
without prescription, which may be filed even beyond the lifetime
of the parties to the marriage.25
Relevant to the foregoing, there is no doubt that Elise, whose
successional rights would be prejudiced by her father’s marriage to
Amelia, may impugn the existence of such marriage even after the
death of her father. The said marriage may be questioned directly
by filing an action attacking the validity thereof, or collaterally by
raising it as an issue in a proceeding for the settlement of the estate
of the deceased spouse, such as in the case at bar. Ineluctably, Elise,
as a compulsory heir,26 has a cause of action for the declaration of
the absolute nullity of the void marriage of Eliseo and Amelia, and
the death of either party to the said marriage does not extinguish
such cause of action.
Having established the right of Elise to impugn Eliseo’s marriage to
Amelia, we now proceed to determine whether or not the
decedent’s marriage to Amelia is void for being bigamous.
Contrary to the position taken by the petitioners, the existence of a
previous marriage between Amelia and Filipito was sufficiently
established by no less than the Certificate of Marriage issued by the
Diocese of Tarlac and signed by the officiating priest of the Parish of
San Nicolas de Tolentino in Capas, Tarlac. The said marriage
certificate is a competent evidence of marriage and the certification
from the National Archive that no information relative to the said
marriage exists does not diminish the probative value of the entries
therein. We take judicial notice of the fact that the first marriage
was celebrated more than 50 years ago, thus, the possibility that a
record of marriage can no longer be found in the National Archive,
given the interval of time, is not completely remote. Consequently,
in the absence of any showing that such marriage had been
dissolved at the time Amelia and Eliseo’s marriage was solemnized,
the inescapable conclusion is that the latter marriage is bigamous
and, therefore, void ab initio.27
Neither are we inclined to lend credence to the petitioners’
contention that Elise has not shown any interest in the Petition for
Letters of Administration.
Section 6, Rule 78 of the Revised Rules of Court lays down the
preferred persons who are entitled to the issuance of letters of
administration, thus:
Sec. 6. When and to whom letters of administration granted. — If no
executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the court, or to
such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to
serve;
(b) If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or
next of kin, neglects for thirty (30) days after the death of
the person to apply for administration or to request that
administration be granted to some other person, it may be
granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the court
may select.
Upon the other hand, Section 2 of Rule 79 provides that a petition
for Letters of Administration must be filed by an interested person,
thus:
Sec. 2. Contents of petition for letters of administration. — A
petition for letters of administration must be filed by an interested
person and must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the issuance of letters
of administration.
An "interested party," in estate proceedings, is one who would be
benefited in the estate, such as an heir, or one who has a claim
against the estate, such as a creditor. Also, in estate proceedings,
the phrase "next of kin" refers to those whose relationship with the
decedent Is such that they are entitled to share in the estate as
distributees.28
In the instant case, Elise, as a compulsory heir who stands to be
benefited by the distribution of Eliseo’s estate, is deemed to be an
interested party. With the overwhelming evidence on record
produced by Elise to prove her filiation to Eliseo, the petitioners’
pounding on her lack of interest in the administration of the
decedent’s estate, is just a desperate attempt to sway this Court to
reverse the findings of the Court of Appeals. Certainly, the right of
Elise to be appointed administratix of the estate of Eliseo is on good
grounds. It is founded on her right as a compulsory heir, who, under
the law, is entitled to her legitimate after the debts of the estate are
satisfied.29 Having a vested right in the distribution of Eliseo’s estate
as one of his natural children, Elise can rightfully be considered as an
interested party within the purview of the law.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. Accordingly, the Court of Appeals assailed 28 November 2008
Decision and 7 August 2009 Resolution, arc AFFIRMED in toto.
SO ORDERED.
EN BANC
G.R. No. L-15853 July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of
Appeals affirming that of the Court of First Instance of Rizal which
dismissed petitioner's complaint for annulment of his marriage with
respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955,
was based on the ground of fraud, it being alleged, among other
things, that defendant Conchita Delizo, herein respondent, at the
date of her marriage to plaintiff, herein petitioner Fernando Aquino,
on December 27, 1954, concealed from the latter that fact that she
was pregnant by another man, and sometime in April, 1955, or
about four months after their marriage, gave birth to a child. In her
answer, defendant claimed that the child was conceived out of
lawful wedlock between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a
quo ordered Assistant Provincial Fiscal Jose Goco to represent the
State in the proceedings to prevent collusion. Only the plaintiff
however, testified and the only documentary evidence presented
was the marriage contract between the parties. Defendant neither
appeared nor presented any evidence despite the reservation made
by her counsel that he would present evidence on a later date.
On June 16, 1956, the trial court — noting that no birth certificate
was presented to show that the child was born within 180 days after
the marriage between the parties, and holding that concealment of
pregnancy as alleged by the plaintiff does not constitute such fraud
sa would annul a marriage — dismissed the complaint. Through a
verified "petition to reopen for reception of additional evidence",
plaintiff tried to present the certificates of birth and delivery of the
child born of the defendant on April 26, 1955, which documents,
according to him, he had failed to secure earlier and produce before
the trial court thru excusable negligence. The petition, however, was
denied.
On appeal to the Court of Appeals, that court held that there has
been excusable neglect in plaintiff's inability to present the proof of
the child's birth, through her birth certificate, and for that reason
the court a quo erred in denying the motion for reception of
additional evidence. On the theory, however, that it was not
impossible for plaintiff and defendant to have had sexual
intercourse during their engagement so that the child could be their
own, and finding unbelievable plaintiff's claim that he did not notice
or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the
complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision
be reconsidered, or, if such reconsideration be denied, that the case
be remanded to the lower court for new trial. In support of the
motion, plaintiff attached as annexes thereof the following
documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-
in-law and plaintiff's brother, with whom defendant was
living at the time plaintiff met, courted and married her,
and with whom defendant has begotten two more
children, aside from her first born, in common-law
relationship) admitting that he is the father of defendant's
first born, Catherine Bess Aquino, and that he and
defendant hid her pregnancy from plaintiff at the time of
plaintiff's marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B")
admitting her pregnancy by Cesar Aquino, her brother-in-
law and plaintiff's own brother, at the time of her marriage
to plaintiff and her having hidden this fact from plaintiff
before and up to the time of their marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he
knew Cesar Aquino and defendant lived together as
husband and wife before December 27, 1954, the date of
plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess
Aquino showing her date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the
second child of defendant with Cesar Aquino, her brother-
in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the
third child of Cesar Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as
early as 1952 to as late as November, 1954, the November,
1954 photo itself does not show defendant's pregnancy
which must have been almost four months old at the time
the picture was taken.
Acting upon the motion, the Court of Appeals ordered the
defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal,
who was representing the Government, to answer the motion for
reconsideration, and deferred action on the prayer for new trial
until after the case is disposed of. As both the defendant and the
fiscal failed to file an answer, and stating that it "does not believe
the veracity of the contents of the motion and its annexes", the
Court of Appeals, on August 6, 1959, denied the motion. From that
order, the plaintiff brought the case to this Court thru the present
petition for certiorari.
After going over the record of the case, we find that the dismissal of
plaintiff's complaint cannot be sustained.
Under the new Civil Code, concealment by the wife of the fact that
at the time of the marriage, she was pregnant by a man other than
her husband constitutes fraud and is ground for annulment of
marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case
of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be
reviewed, which was also an action for the annulment of marriage
on the ground of fraud, plaintiff's claim that he did not even suspect
the pregnancy of the defendant was held to be unbelievable, it
having been proven that the latter was already in an advanced stage
of pregnancy (7th month) at the time of their marriage. That
pronouncement, however, cannot apply to the case at bar. Here the
defendant wife was alleged to be only more than four months
pregnant at the time of her marriage to plaintiff. At that stage, we
are not prepared to say that her pregnancy was readily apparent,
especially since she was "naturally plump" or fat as alleged by
plaintiff. According to medical authorities, even on the 5th month of
pregnancy, the enlargement of a woman's abdomen is still below
the umbilicus, that is to say, the enlargement is limited to the lower
part of the abdomen so that it is hardly noticeable and may, if
noticed, be attributed only to fat formation on the lower part of the
abdomen. It is only on the 6th month of pregnancy that the
enlargement of the woman's abdomen reaches a height above the
umbilicus, making the roundness of the abdomen more general and
apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by
plaintiff, defendant is "naturally plump", he could hardly be
expected to know, merely by looking, whether or not she was
pregnant at the time of their marriage more so because she must
have attempted to conceal the true state of affairs. Even physicians
and surgeons, with the aid of the woman herself who shows and
gives her subjective and objective symptoms, can only claim positive
diagnosis of pregnancy in 33% at five months. and 50% at six
months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff
and defendant to have had sexual intercourse before they got
married and therefore the child could be their own. This statement,
however, is purely conjectural and finds no support or justification
in the record.

Upon the other hand, the evidence sought to be introduced at the

new trial, taken together with what has already been adduced
would, in our opinion, be sufficient to sustain the fraud alleged by
plaintiff. The Court of Appeals should, therefore, not have denied
the motion praying for new trial simply because defendant failed to
file her answer thereto. Such failure of the defendant cannot be
taken as evidence of collusion, especially since a provincial fiscal has
been ordered of represent the Government precisely to prevent
such collusion. As to the veracity of the contents of the motion and
its annexes, the same can best be determined only after hearing
evidence. In the circumstance, we think that justice would be better
served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case

remanded to the court a quo for new trial. Without costs.
EN BANC
G.R. No. L-27930 November 26, 1970
AURORA A. ANAYA, plaintiff-appellant,
vs.
FERNANDO O. PALAROAN, defendant-appellee.
Isabelo V. Castro for plaintiff-appellant.
Arturo A. Romero for defendant-appellee.
REYES, J.B.L., J.:
Appeal from an order of dismissal, issued motu proprio by the
Juvenile & Domestic Relations Court, Manila, of a complaint for
annulment of marriage, docketed therein as Civil Case No. E-00431,
entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan,
defendant."
The complaint in said Civil Case No. E-00431 alleged, inter alia, that
plaintiff Aurora and defendant Fernando were married on 4
December 1953; that defendant Fernando filed an action for
annulment of the marriage on 7 January 1954 on the ground that his
consent was obtained through force and intimidation, which action
was docketed in the Court of First Instance of Manila as Civil Case
No. 21589; that judgment was rendered therein on 23 September
1959 dismissing the complaint of Fernando, upholding the validity of
the marriage and granting Aurora's counterclaim; that (per
paragraph IV) while the amount of the counterclaim was being
negotiated "to settle the judgment," Fernando had divulged to
Aurora that several months prior to their marriage he had pre-
marital relationship with a close relative of his; and that "the non-
divulgement to her of the aforementioned pre-marital secret on the
part of defendant that definitely wrecked their marriage, which
apparently doomed to fail even before it had hardly commenced ...
frank disclosure of which, certitude precisely precluded her, the
Plaintiff herein from going thru the marriage that was solemnized
between them constituted 'FRAUD', in obtaining her consent, within
the contemplation of No. 4 of Article 85 of the Civil Code" (sic)
(Record on Appeal, page 3). She prayed for the annulment of the
marriage and for moral damages.
Defendant Fernando, in his answer, denied the allegation in
paragraph IV of the complaint and denied having had pre-marital
relationship with a close relative; he averred that under no
circumstance would he live with Aurora, as he had escaped from her
and from her relatives the day following their marriage on 4
December 1953; that he denied having committed any fraud against
her. He set up the defenses of lack of cause of action and estoppel,
for her having prayed in Civil Case No. 21589 for the validity of the
marriage and her having enjoyed the support that had been granted
her. He counterclaimed for damages for the malicious filing of the
suit. Defendant Fernando did not pray for the dismissal of the
complaint but for its dismissal "with respect to the alleged moral
damages."
Plaintiff Aurora filed a reply with answer to the counterclaim,
wherein she alleged:
(1) that prior to their marriage on 4 December
1953, he paid court to her, and pretended to
shower her with love and affection not because he
really felt so but because she merely happened to
be the first girl available to marry so he could
evade marrying the close relative of his whose
immediate members of her family were
threatening him to force him to marry her (the
close relative);
(2) that since he contracted the marriage for the
reason intimated by him, and not because he
loved her, he secretly intended from the very
beginning not to perform the marital duties and
obligations appurtenant thereto, and furthermore,
he covertly made up his mind not to live with her;
(3) that the foregoing clandestine intentions
intimated by him were prematurely concretized
for him, when in order to placate and appease the
immediate members of the family of the first girl
(referent being the close relative) and to convince
them of his intention not to live with plaintiff,
carried on a courtship with a third girl with whom,
after gaining the latter's love cohabited and had
several children during the whole range of nine
years that Civil Case No. 21589, had been litigated
between them (parties); (Record on Appeal, pages
10-11)
Failing in its attempt to have the parties reconciled, the court set
the case for trial on 26 August 1966 but it was postponed.
Thereafter, while reviewing the expendiente, the court realized that
Aurora's allegation of the fraud was legally insufficient to invalidate
her marriage, and, on the authority of Brown vs. Yambao, 102 Phil.
168, holding:
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. —
the court a quo required plaintiff to show cause
why her complaint should not be dismissed.
Plaintiff Aurora submitted a memorandum in
compliance therewith, but the court found it
inadequate and thereby issued an order, dated 7
October 1966, for the dismissal of the complaint;
it also denied reconsideration.
The main issue is whether or not the non-disclosure to a wife by her
husband of his pre-marital relationship with another woman is a
ground for annulment of marriage.
We must agree with the lower court that it is not. For fraud as a vice
of consent in marriage, which may be a cause for its annulment,
comes under Article 85, No. 4, of the Civil Code, which provides:
ART. 85. A marriage may be annulled for any of
the following causes, existing at the time of the
marriage:
xxx xxx xxx
 (4) That the consent of either party was obtained
by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with the other as her husband or
his wife, as the case may be;
This fraud, as vice of consent, is limited exclusively
by law to those kinds or species of fraud
enumerated in Article 86, as follows:
ART. 86. Any of the following circumstances shall
constitute fraud referred to in number 4 of the
preceding article:
(1) Misrepresentation as to the
identity of one of the contracting
parties;
(2) Non-disclosure of the
previous conviction of the other
party of a crime involving moral
turpitude, and the penalty
imposed was imprisonment for
two years or more;
(3) Concealment by the wife of
the fact that at the time of the
marriage, she was pregnant by a
man other than her husband.
No other misrepresentation or deceit as to
character, rank, fortune or chastity shall constitute
such fraud as will give grounds for action for the
annulment of marriage.
The intention of Congress to confine the circumstances that can
constitute fraud as ground for annulment of marriage to the
foregoing three cases may be deduced from the fact that, of all the
causes of nullity enumerated in Article 85, fraud is the only one
given special treatment in a subsequent article within the chapter
on void and voidable marriages. If its intention were otherwise,
Congress would have stopped at Article 85, for, anyway, fraud in
general is already mentioned therein as a cause for annulment. But
Article 86 was also enacted, expressly and specifically dealing with there is more reason not to allow such party to allege a new and
"fraud referred to in number 4 of the preceding article," and additional cause of action in the reply. Otherwise, the series of
proceeds by enumerating the specific frauds (misrepresentation as pleadings of the parties could become interminable.
to identity, non-disclosure of a previous conviction, and
concealment of pregnancy), making it clear that Congress intended On the merits of this second fraud charge, it is enough to point out
to exclude all other frauds or deceits. To stress further such that any secret intention on the husband's part not to perform his
intention, the enumeration of the specific frauds was followed by marital duties must have been discovered by the wife soon after the
the interdiction: "No other misrepresentation or deceit as to marriage: hence her action for annulment based on that fraud
character, rank, fortune or chastity shall constitute such fraud as will should have been brought within four years after the marriage.
give grounds for action for the annulment of marriage." Since appellant's wedding was celebrated in December of 1953, and
this ground was only pleaded in 1966, it must be declared already
Non-disclosure of a husband's pre-marital relationship with another barred.
woman is not one of the enumerated circumstances that would
constitute a ground for annulment; and it is further excluded by the FOR THE FOREGOING REASONS, the appealed order is hereby
last paragraph of the article, providing that "no other affirmed. No costs.
misrepresentation or deceit as to ... chastity" shall give ground for
an action to annul a marriage. While a woman may detest such non-
disclosure of premarital lewdness or feel having been thereby
cheated into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was solemnly
given, for upon marriage she entered into an institution in which
society, and not herself alone, is interested. The lawmaker's intent
being plain, the Court's duty is to give effect to the same, whether it
agrees with the rule or not.
But plaintiff-appellant Anaya emphasizes that not only has she
alleged "non-divulgement" (the word chosen by her) of the pre-
marital relationship of her husband with another woman as her
cause of action, but that she has, likewise, alleged in her reply that
defendant Fernando paid court to her without any intention of
complying with his marital duties and obligations and covertly made
up his mind not to live with her. Plaintiff-appellant contends that
the lower court erred in ignoring these allegations in her reply.
This second set of averments which were made in the reply
(pretended love and absence of intention to perform duties of
consortium) is an entirely new and additional "cause of action."
According to the plaintiff herself, the second set of allegations is
"apart, distinct and separate from that earlier averred in the
Complaint ..." (Record on Appeal, page 76). Said allegations were,
therefore, improperly alleged in the reply, because if in a reply a
party-plaintiff is not permitted to amend or change the cause of
action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445),
SECOND DIVISION
G.R. No. 116607 April 10, 1996
EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.
PUNO, J.:p
This petition for review on certiorari seeks to annul and set aside the
decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV
No. 37925 denying petitioner's appeal from an order of the Regional
Trial Court, Branch 149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with
the Regional Trial Court, Branch 149, Makati a petition for
annulment or declaration of nullity of her marriage to petitioner
Emilio R. Tuason. In her complaint, private respondent alleged that
she and petitioner were married on June 3, 1972 and from this
union, begot two children; that at the time of the marriage,
petitioner was already psychologically incapacitated to comply with
his essential marital obligations which became manifest afterward
and resulted in violent fights between husband and wife; that in one
of their fights, petitioner inflicted physical injuries on private
respondent which impelled her to file a criminal case for physical
injuries against him; that petitioner used prohibited drugs, was
apprehended by the authorities and sentenced to a one-year
suspended penalty and has not been rehabilitated; that petitioner
was a womanizer, and in 1984, he left the conjugal home and
cohabited with three women in succession, one of whom he
presented to the public as his wife; that after he left the conjugal
dwelling, petitioner gave minimal support to the family and even
refused to pay for the tuition fees of their children compelling
private respondent to accept donations and dole-outs from her
family and friends; that petitioner likewise became a spendthrift and
abused his administration of the conjugal partnership by alienating
some of their assets and incurring large obligations with banks,
credit card companies and other financial institutions, without
private respondent's consent; that attempts at reconciliation were
made but they all failed because of petitioner's refusal to reform. In
addition to her prayer for annulment of marriage, private
respondent prayed for powers of administration to save the
conjugal properties from further dissipation.1
Petitioner answered denying the imputations against him. As
affirmative defense, he claimed that he and private respondent
were a normal married couple during the first ten years of their
marriage and actually begot two children during this period; that it
was only in 1982 that they began to have serious personal
differences when his wife did not accord the respect and dignity due
him as a husband but treated him like a persona non grata; that due
to the "extreme animosities " between them, he temporarily left the
conjugal home for a "cooling-off period" in 1984; that it is private
respondent who had been taking prohibited drugs and had a serious
affair with another man; that petitioner's work as owner and
operator of a radio and television station exposed him to malicious
gossip linking him to various women in media and the
entertainment world; and that since 1984, he experienced financial
reverses in his business and was compelled, with the knowledge of
his wife, to dispose of some of the conjugal shares in exclusive golf
and country clubs. Petitioner petitioned the court to allow him to
return to the conjugal home and continue his administration of the
conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990.
Private respondent presented four witnesses, namely, herself; Dr.
Samuel Wiley, a Canon Law expert and marriage counselor of both
private respondent and petitioner; Ms. Adelita Prieto, a close friend
of the spouses, and Atty. Jose F. Racela IV, private respondent's
counsel. Private respondent likewise submitted documentary
evidence consisting of newspaper articles of her husband's
relationship with other women, his apprehension by the authorities
for illegal possession of drugs; and copies of a prior a church
annulment decree.2 The parties' marriage was clerically annulled by
the Tribunal Metropolitanum Matrimonial which was affirmed by
the National Appellate Matrimonial Tribunal in 1986.3
During presentation of private respondent's evidence, petitioner, on
April 18, 1990, filed his Opposition to private respondent's petition
for appointment as administratrix of the conjugal partnership of
gains.
After private respondent rested her case, the trial court scheduled
the reception of petitioner's evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing , a counsel
for petitioner moved for a postponement on the ground that the
principal counsel was out of the country and due to return on the
first week of June.4 The court granted the motion and reset the
hearing to June 8, 1990.5
On June 8, 1990, petitioner failed to appear. On oral motion of
private respondent, the court declared petitioner to have waived his
right to present evidence and deemed the case submitted for
decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the
nullity of private respondent's marriage to petitioner and awarding
custody of the children to private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the
marriage contracted by Ma. Victoria L. Tuason and
Emilio R. Tuason on June 3, 1972 is declared null
and void ab initio on the ground of psychological
incapacity on the part of the defendant under Sec.
36 of the Family Code. Let herein judgment of
annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage
was contracted and in the registry of Makati,
Metro Manila where the marriage is annulled.
The custody of the two (2) legitimate children of
the plaintiff and the defendant is hereby awarded
to the plaintiff.
The foregoing judgment is without prejudice to
the application of the other effects of annulment
as provided for under Arts . 50 and 51 of the
Family Code of the Philippines.6
Counsel for petitioner received a copy of this decision on August 24,
1990. No appeal was taken from the decision.
On September 24, 1990, private respondent filed a "Motion for
Dissolution of Conjugal Partnership of Gains and Adjudication to
Plaintiff of the Conjugal Properties."7 Petitioner opposed the motion
on October 17, 1990.8
Also on the same day, October 17, 1990, petitioner, through new
counsel, filed with the trial court a petition for relief from judgment
of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.9
Petitioner appealed before the Court of Appeals the order of the
trial court denying his petition for relief from judgment. On July 29,
1994, the Court of Appeals dismissed the appeal and affirmed the
order of the trial court. 10
Hence this petition.
The threshold issue is whether a petition for relief from judgment is
warranted under the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2
of the Revised Rules of Court which provides:
Sec. 2. Petition to Court of First Instance for relief
from judgment or other proceeding thereof. —
When a judgment or order is entered, or any other
proceeding is taken, against a party in a Court of
First Instance through fraud, accident, mistake, or
excusable negligence, he may file a petition in
such court and in the same cause praying that the
judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of the
Regional Trial Court may be set aside on the ground of fraud,
accident, mistake or excusable negligence. In addition, the
petitioner must assert facts showing that he has a good, substantial
and meritorious defense or cause of action. 11 If the petition is
granted, the court shall proceed to hear and determine the case as
if a timely motion for new trial had been granted therein. 12
In the case at bar, the decision annulling petitioner's marriage to
private respondent had already become final and executory when
petitioner failed to appeal during the reglementary period.
Petitioner however claims that the decision of the trial court was
null and void for violation of his right to due process. He contends
he was denied due process when, after failing to appear on two
scheduled hearings, the trial court deemed him to have waived his
right to present evidence and rendered judgment on the basis of the
evidence for private respondent. Petitioner justifies his absence at
the hearings on the ground that he was then "confined for medical
and/or rehabilitation reason." 13 In his affidavit of merit before the
trial court, he attached a certification by Lt. Col. Plaridel F. Vidal,
Director of the Narcotics Command, Drug Rehabilitation Center
which states that on March 27, 1990 petitioner was admitted for
treatment of drug dependency at the Drug Rehabilitation Center at
Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine
Constabulary-Integrated National Police. 14 The records, however,
show that the former counsel of petitioner did not inform the trial
court of this confinement. And when the court rendered its
decision, the same counsel was out of the country for which reason
the decision became final and executory as no appeal was taken
therefrom. 15
The failure of petitioner's counsel to notify him on time of the
adverse judgment to enable him to appeal therefrom is negligence
which is not excusable. Notice sent to counsel of record is binding
upon the client and the neglect or failure of counsel to inform him
of an adverse judgment resulting in the loss of his right to appeal is
not a ground for setting aside a judgment valid and regular on its
face. 16
Similarly inexcusable was the failure of his former counsel to inform
the trial court of petitioner's confinement and medical treatment as
the reason for his non-appearance at the scheduled hearings.
Petitioner has not given any reason why his former counsel,
intentionally or unintentionally, did not inform the court of this fact.
This led the trial court to order the case deemed submitted for
decision on the basis of the evidence presented by the private
respondent alone. To compound the negligence of petitioner's
counsel, the order of the trial court was never assailed via a motion
for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due
process. He may have lost his right to present evidence but he was
not denied his day in court. As the record show, petitioner, through
counsel, actively participated in the proceedings below. He filed his
answer to the petition, cross-examined private respondent's
witnesses and even submitted his opposition to private
respondent's motion for dissolution of the conjugal partnership of
gains. 17
A petition for relief from judgment is an equitable remedy; it is
allowed only in exception cases where there is no other available or
adequate remedy. When a party has another remedy available or
adequate remedy. When a party has another remedy available to
him, which may be either a motion for new trial or appeal from an
adverse decision of the trial or appeal from an adverse decision of
the trial court, and he was not prevented by fraud, accident, mistake
or excusable negligence from filing such motion or taking such
appeal, he cannot avail himself of this petition. 18 Indeed, relief will
not be granted to a party who seeks avoidance from the effects of
the judgment when the loss of the remedy at law was due to his
own negligence; otherwise the petition for relief can be used to
revive the right to appeal which had been lost thru inexcusable
negligence. 19
Petitioner also insists that he has a valid and meritorious defense.
He cites the Family Code which provides that in actions for
annulment of marriage or legal separation, the prosecuting officer
should intervene for the state because the law "looks with disfavor
upon the haphazard declaration of annulment of marriages by
default." He contends that when he failed to appear at the
scheduled hearings, the trial court should have ordered the
prosecuting officer to intervene for the state and inquire as to the
reason for his non-appearance. 20
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order
the prosecution attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.
 In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
xxx xxx xxx
Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
judgment.
In any case, the Court shall order the prosecuting
attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take
care that the evidence is not fabricated or
suppressed. 21
A grant of annulment of marriage or legal separation by default is
fraught with the danger of collusion. 22 Hence, in all cases for
annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of
the state for the purpose of preventing any collusion between the
parties and to take care that their evidence is not fabricated or
suppressed. If the defendant spouse fails to answer the complaint,
the court cannot declare him or her in default but instead, should
order the prosecuting attorney to determine if collusion exists
between the parties.23 The prosecuting attorney or fiscal may
oppose the application for legal separation or annulment through
the presentation of his own evidence, if in his opinion, the proof
adduced is dubious and fabricated.24 Our Constitution is committed
to the policy of strengthening the family as a basic social
institution. 25Our family law is based on the policy that marriage is
not a mere contract, but a social institution in which the state is
vitally interested. The state can find no stronger anchor than on
good, solid and happy families. The break up of families weakens
our social and moral fabric and, hence, their preservation is not the
concern alone of the family members.
The facts in the case at bar do not call for the strict application of
Articles 48 and 60 of the Family Code. For one, petitioner was not
declared in default by the trial court for failure to answer. Petitioner
filed his answer to the complaint and contested the cause of action
alleged by private respondent. He actively participated in the
proceedings below by filing several pleadings and cross-examining
the witnesses of private respondent. It is crystal clear that every
stage of the litigation was characterized by a no-holds barred
contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of
marriage and legal separation proceedings is to determine whether
collusion exists between the parties and to take care that the
evidence is not suppressed or fabricated. Petitioner's vehement
opposition to the annulment proceedings negates the conclusion
that collusion existed between the parties. There is no allegation by
the petitioner that evidence was suppressed or fabricated by any of
the parties. Under these circumstances, we are convinced that the
non-intervention of a prosecuting attorney to assure lack of
collusion between the contending parties is not fatal to the validity
of the proceedings in the trial court.
Petitioner also refutes the testimonies of private respondent's
witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as
biased, incredible and hearsay. Petitioner alleges that if he were
able to present his evidence, he could have testified that he was not
psychologically incapacitated at the time of the marriage as
indicated by the fact that during their first ten years, he and private
respondent lived together with their children as one normal and
happy family, that he continued supporting his family even after he
left the conjugal dwelling and that his work as owner and operator
of a radio and television corporation places him in the public eye
and makes him a good subject for malicious gossip linking him with
various women. These facts, according to petitioner, should
disprove the ground for annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the
existence or non-existence of petitioner's psychological incapacity at
the time of the marriage is final and binding on us. 26 Petitioner has
not sufficiently shown that the trial court's factual findings and
evaluation of the testimonies of private respondent's witnesses vis-
a-vis petitioner's defenses are clearly and manifestly erroneous. 27
IN VIEW WHEREOF, the petition is denied and the decision dated
July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is
affirmed.
THIRD DIVISION
G.R. No. 115640 March 15, 1995
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a relationship
which went sour. The innocent victims are two children horn out of
the same union. Upon this Court now falls the not too welcome task
of deciding the issue of who, between the father and mother, is
more suitable and better qualified in helping the children to grow
into responsible, well-adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita Masauding
first met sometime in 1976 in Iligan City where Reynaldo was
employed by the National Steel Corporation and Teresita was
employed as a nurse in a local hospital. In 1977, Teresita left for Los
Angeles, California to work as a nurse. She was able to acquire
immigrant status sometime later. In 1984, Reynaldo was sent by his
employer, the National Steel Corporation, to Pittsburgh,
Pennsylvania as its liaison officer and Reynaldo and Teresita then
began to maintain a common law relationship of husband and wife.
On August 16, 1986, their daughter, Rosalind Therese, was born. On
October 7, 1987, while they were on a brief vacation in the
Philippines, Reynaldo and Teresita got married, and upon their
return to the United States, their second child, a son, this time, and
given the name Reginald Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided to
separate sometime in 1990. Teresita blamed Reynaldo for the
break-up, stating he was always nagging her about money matters.
Reynaldo, on the other hand, contended that Teresita was a
spendthrift, buying expensive jewelry and antique furniture instead
of attending to household expenses.
Instead of giving their marriage a second chance as allegedly
pleaded by Reynaldo, Teresita left Reynaldo and the children and
went back to California. She claims, however, that she spent a lot of
money on long distance telephone calls to keep in constant touch
with her children.
Reynaldo brought his children home to the Philippines, but because
his assignment in Pittsburgh was not yet completed, he was sent
back by his company to Pittsburgh. He had to leave his children with
his sister, co-petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children
because Reynaldo filed a criminal case for bigamy against her and
she was afraid of being arrested. The judgment of conviction in the
bigamy case was actually rendered only on September 29, 1994.
(Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-
222, Rollo). Teresita, meanwhile, decided to return to the
Philippines and on December 8, 1992 and filed the petition for a writ
of habeas corpus against herein two petitioners to gain custody over
the children, thus starting the whole proceedings now reaching this
Court.
On June 30, 1993, the trial court dismissed the petition for habeas
corpus. It suspended Teresita's parental authority over Rosalind and
Reginald and declared Reynaldo to have sole parental authority over
them but with rights of visitation to be agreed upon by the parties
and to be approved by the Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with
Justices de Pano and Ibay-Somera concurring, reversed the trial
court's decision. It gave custody to Teresita and visitation rights on
weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the
main contending that the Court of Appeals disregarded the factual
findings of the trial court; that the Court of Appeals further engaged
in speculations and conjectures, resulting in its erroneous
conclusion that custody of the children should be given to
respondent Teresita.
We believe that respondent court resolved the question of custody
over the children through an automatic and blind application of the
age proviso of Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody,
education and property of the children, the latter's
welfare shall be paramount. No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.
and of Article 213 of the Family Code which in turn
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.
The decision under review is based on the report of the Code
Commission which drafted Article 213 that a child below seven
years still needs the loving, tender care that only a mother can give
and which, presumably, a father cannot give in equal measure. The
commentaries of a member of the Code Commission, former Court
of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family
Code, were also taken into account. Justice Diy believes that a child
below seven years should still be awarded to her mother even if the
latter is a prostitute or is unfaithful to her husband. This is on the
theory that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the
Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of relevant facts
and the law which should apply to those facts. The task of choosing
the parent to whom custody shall be awarded is not a ministerial
function to be determined by a simple determination of the age of a
minor child. Whether a child is under or over seven years of age, the
paramount criterion must always be the child's interests. Discretion
is given to the court to decide who can best assure the welfare of
the child, and award the custody on the basis of that consideration.
In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the
rule that "in all controversies regarding the custody of minors, the
sole and foremost consideration is the physical, education, social
and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the
contending parents", and in Medina vs. Makabali (27 SCRA 502
[1969]), where custody of the minor was given to a non-relative as
against the mother, then the country's leading civilist, Justice J.B.L.
Reyes, explained its basis in this manner:
. . . While our law recognizes the right of a parent
to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on
the care, custody, education and property of
children, the latter's welfare shall be paramount"
(Civil Code of the Philippines. Art. 363), and that
for compelling reasons, even a child under seven
may be ordered separated from the mother (do).
This is as it should be, for in the continual
evolution of legal institutions, the patria
potestas has been transformed from thejus vitae
ac necis (right of life and death) of the Roman law,
under which the offspring was virtually a chattel of
his parents into a radically different institution,
due to the influence of Christian faith and
doctrines. The obligational aspect is now supreme.
As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor."
As a result, the right of parents to the company
and custody of their children is but ancillary to the
proper discharge of parental duties to provide the
children with adequate support, education, moral,
intellectual and civic training and development
(Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law
presumes that the mother is the best custodian. The presumption is
strong but it is not conclusive. It can be overcome by "compelling
reasons". If a child is over seven, his choice is paramount but, again,
the court is not bound by that choice. In its discretion, the court may
find the chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven
years of age. Rosalind celebrated her seventh birthday on August
16, 1993 while Reginald reached the same age on January 12, 1995.
Both are studying in reputable schools and appear to be fairly
intelligent children, quite capable of thoughtfully determining the
parent with whom they would want to live. Once the choice has
been made, the burden returns to the court to investigate if the
parent thus chosen is unfit to assume parental authority and
custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing
the records to discover the choice of the children and rather than
verifying whether that parent is fit or unfit, respondent court simply
followed statutory presumptions and general propositions
applicable to ordinary or common situations. The seven-year age
limit was mechanically treated as an arbitrary cut off period and not
a guide based on a strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at
least, her counsel are more intent on emphasizing the "torture and
agony" of a mother separated from her children and the humiliation
she suffered as a result of her character being made a key issue in
court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her
small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody.
One cannot say that his or her suffering is greater than that of the
other parent. It is not so much the suffering, pride, and other
feelings of either parent but the welfare of the child which is the
paramount consideration.
We are inclined to sustain the findings and conclusions of the
regional trial court because it gave greater attention to the choice of
Rosalind and considered in detail all the relevant factors bearing on
the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a
child psychologist, Rita Flores Macabulos, to determine the effects
of uprooting her from the Assumption College where she was
studying. Four different tests were administered. The results of the
tests are quite revealing. The responses of Rosalind about her
mother were very negative causing the psychologist to delve deeper
into the child's anxiety. Among the things revealed by Rosalind was
an incident where she saw her mother hugging and kissing a "bad"
man who lived in their house and worked for her father. Rosalind
refused to talk to her mother even on the telephone. She tended to
be emotionally emblazed because of constant fears that she may
have to leave school and her aunt's family to go back to the United
States to live with her mother. The 5-1/2 page report deals at length
with feelings of insecurity and anxiety arising from strong conflict
with the mother. The child tried to compensate by having fantasy
activities. All of the 8 recommendations of the child psychologist
show that Rosalind chooses petitioners over the private respondent
and that her welfare will be best served by staying with them (pp.
199-205, Rollo).
At about the same time, a social welfare case study was conducted
for the purpose of securing the travel clearance required before
minors may go abroad. Social Welfare Officer Emma D. Estrada
Lopez, stated that the child Rosalind refused to go back to the
United States and be reunited with her mother. She felt unloved and
uncared for. Rosalind was more attached to her Yaya who did
everything for her and Reginald. The child was found suffering from
emotional shock caused by her mother's infidelity. The application
for travel clearance was recommended for denial (pp. 206-
209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age
reference in the law applies to the date when the petition for a writ
of habeas corpus is filed, not to the date when a decision is
rendered. This argument is flawed. Considerations involving the
choice made by a child must be ascertained at the time that either
parent is given custody over the child. The matter of custody is not
permanent and unalterable. If the parent who was given custody
suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III v.
Navarro, supra, at p. 189). To be sure, the welfare, the best
interests, the benefit, and the good of the child must be determined
as of the time that either parent is chosen to be the custodian. At
the present time, both children are over 7 years of age and are thus
perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful
reunion in the trial court, with the children crying, grabbing, and
embracing her to prevent the father from taking them away from
her. We are more inclined to believe the father's contention that
the children ignored Teresita in court because such an emotional
display as described by Teresita in her pleadings could not have
been missed by the trial court. Unlike the Justices of the Court of
Appeals Fourth Division, Judge Lucas P. Bersamin personally
observed the children and their mother in the courtroom. What the
Judge found is diametrically opposed to the contentions of
respondent Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at petitioner
[Teresita] in similar light, or with more
understanding, especially as her conduct and
demeanor in the courtroom (during most of the
proceedings) or elsewhere (but in the presence of
the undersigned presiding judge) demonstrated
her ebulent temper that tended to corroborate
the alleged violence of her physical punishment of
the children (even if only for ordinary disciplinary
purposes) and emotional instability, typified by
her failure (or refusal?) to show deference and
respect to the Court and the other parties (pp. 12-
13, RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in turn,
states that the trial court should have considered the fact that
Reynaldo and his sister, herein petitioner Guillerma Layug, hired the
two expert witnesses. Actually, this was taken into account by the
trial court which stated that the allegations of bias and unfairness
made by Teresita against the psychologist and social worker were
not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add that
their testimony remain uncontroverted. We also note that the
examinations made by the experts were conducted in late 1991,
well over a year before the filing by Teresita of the habeas
corpus petition in December, 1992. Thus, the examinations were at
that time not intended to support petitioners' position in litigation,
because there was then not even an impending possibility of one.
That they were subsequently utilized in the case a quo when it did
materialize does not change the tenor in which they were first
obtained.
Furthermore, such examinations, when presented to the court must
be construed to have been presented not to sway the court in favor
of any of the parties, but to assist the court in the determination of
the issue before it. The persons who effected such examinations
were presented in the capacity of expert witnesses testifying on
matters within their respective knowledge and expertise. On this
matter, this Court had occasion to rule in the case of Sali
vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI
expert examines certain contested documents, at
the request, not of a public officer or agency of the
Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its
purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance
of its duty to settle correctly the issues relative to
said documents. Even a non-expert private
individual may examine the same, if there are
facts within his knowledge which may help, the
court in the determination of said issue. Such
examination, which may properly be undertaken
by a non-expert private individual, does not,
certainly become null and void when the examiner
is an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et
al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by
expert testimonies, they may place whatever
weight they choose upon such testimonies in
accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to
decide, considering the ability and character of the
witness, his actions upon the witness stand, the
weight and process of the reasoning by which he
has supported his opinion, his possible bias in
favor of the side for whom he testifies, the fact
that he is a paid witness, the relative opportunities
for study and observation of the matters about
which he testifies, and any other matters which
reserve to illuminate his statements. The opinion
of the expert may not be arbitrarily rejected; it is
to be considered by the court in view of all the
facts and circumstances in the case and when
common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am.
Jur., 1056-1058). The problem of the credibility of
the expert witness and the evaluation of his
testimony is left to the discretion of the trial court
whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to observe their
respective demeanor that the trial court opted to rely on their
testimony, and we believe that the trial court was correct in its
action.
Under direct examination an February 4, 1993, Social Worker Lopez
stated that Rosalind and her aunt were about to board a plane when
they were off-loaded because there was no required clearance.
They were referred to her office, at which time Reginald was also
brought along and interviewed. One of the regular duties of Social
Worker Lopez in her job appears to be the interview of minors who
leave for abroad with their parents or other persons. The interview
was for purposes of foreign travel by a 5-year old child and had
nothing to do with any pending litigation. On cross-examination,
Social Worker Lopez stated that her assessment of the minor's
hatred for her mother was based on the disclosures of the minor. It
is inconceivable, much less presumable that Ms. Lopez would
compromise her position, ethics, and the public trust reposed on a
person of her position in the course of doing her job by falsely
testifying just to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude
graduate in Psychology and an M.A. degree holder also in
Psychology with her thesis graded "Excellent". She was a candidate
for a doctoral degree at the time of the interview. Petitioner
Reynaldo may have shouldered the cost of the interview but Ms.
Macabulos services were secured because Assumption College
wanted an examination of the child for school purposes and not
because of any litigation. She may have been paid to examine the
child and to render a finding based on her examination, but she was
not paid to fabricate such findings in favor of the party who retained
her services. In this instance it was not even petitioner Reynaldo but
the school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature would
compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her
marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on
a love affair with one of the Reynaldo's fellow NSC
employees.
3. She is incapable of providing the children with
necessities and conveniences commensurate to
their social standing because she does not even
own any home in the Philippines.
4. She is emotionally unstable with ebullient
temper.
It is contended that the above findings do not constitute the
compelling reasons under the law which would justify depriving her
of custody over the children; worse, she claims, these findings are
non-existent and have not been proved by clear and convincing
evidence.
Public and private respondents give undue weight to the matter of a
child under 7 years of age not to be separated from the mother,
without considering what the law itself denominates as compelling
reasons or relevant considerations to otherwise decree. In
the Unson III case, earlier mentioned, this Court stated that it found
no difficulty in not awarding custody to the mother, it being in the
best interest of the child "to be freed from the obviously
unwholesome, not
to say immoral influence, that the situation where [the mother] had
placed herself . . . might create in the moral and social outlook of
[the child] who was in her formative and most impressionable stage
. . ."
Then too, it must be noted that both Rosalind and Reginald are now
over 7 years of age. They understand the difference between right
and wrong, ethical behavior and deviant immorality. Their best
interests would be better served in an environment characterized by
emotional stability and a certain degree of material sufficiency.
There is nothing in the records to show that Reynaldo is an "unfit"
person under Article 213 of the Family Code. In fact, he has been
trying his best to give the children the kind of attention and care
which the mother is not in a position to extend.
The argument that the charges against the mother are false is not
supported by the records. The findings of the trial court are based
on evidence.
Teresita does not deny that she was legally married to Roberto
Lustado on December 17, 1984 in California (p. 13, Respondent's
Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year
later, she had already driven across the continental United States to
commence living with another man, petitioner Reynaldo, in
Pittsburgh. The two were married on October 7, 1987. Of course, to
dilute this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo, Teresita tried
to picture Reynaldo as a rapist, alleging further that she told
Reynaldo about her marriage to Lustado on the occasion when she
was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the
Pasig RTC lent no weight to such tale. And even if this story were
given credence, it adds to and not subtracts from the conviction of
this Court about Teresita's values. Rape is an insidious crime against
privacy. Confiding to one's potential rapist about a prior marriage is
not a very convincing indication that the potential victim is averse to
the act. The implication created is that the act would be acceptable
if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage
only much later. In fact, the rape incident itself is unlikely against a
woman who had driven three days and three nights from California,
who went straight to the house of Reynaldo in Pittsburgh and upon
arriving went to bed and, who immediately thereafter started to live
with him in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the
various witnesses that while married to Reynaldo, Teresita entered
into an illicit relationship with Perdencio Gonzales right there in the
house of petitioner Reynaldo and respondent Teresita. Perdencio
had been assigned by the National Steel Corporation to assist in the
project in Pittsburgh and was staying with Reynaldo, his co-
employee, in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the traumatic
effect of seeing her mother hugging and kissing a boarder in their
house. The record also shows that it was Teresita who left the
conjugal home and the children, bound for California. When
Perdencio Gonzales was reassigned to the Philippines, Teresita
followed him and was seen in his company in a Cebu hotel, staying
in one room and taking breakfast together. More significant is that
letters and written messages from Teresita to Perdencio were
submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man
to another does not fall under "compelling reasons" is neither
meritorious nor applicable in this case. Not only are the children
over seven years old and their clear choice is the father, but the
illicit or immoral activities of the mother had already caused
emotional disturbances, personality conflicts, and exposure to
conflicting moral values, at least in Rosalind. This is not to mention
her conviction for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well
perform the role of a sole parent and substitute mother because his
job is in the United States while the children will be left behind with
their aunt in the Philippines is misplaced. The assignment of
Reynaldo in Pittsburgh is or was a temporary one. He was sent there
to oversee the purchase of a steel mill component and various
equipment needed by the National Steel Corporation in the
Philippines. Once the purchases are completed, there is nothing to
keep him there anymore. In fact, in a letter dated January 30, 1995,
Reynaldo informs this Court of the completion of his assignment
abroad and of his permanent return to the Philippines (ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court.
The children are now both over seven years old. Their choice of the
parent with whom they prefer to stay is clear from the record. From
all indications, Reynaldo is a fit person, thus meeting the two
requirements found in the first paragraph of Article 213 of the
Family Code. The presumption under the second paragraph of said
article no longer applies as the children are over seven years.
Assuming that the presumption should have persuasive value for
children only one or two years beyond the age of seven years
mentioned in the statute, there are compelling reasons and relevant
considerations not to grant custody to the mother. The children
understand the unfortunate shortcomings of their mother and have
been affected in their emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the

Court of Appeals is reversed and set aside, and the decision of
Branch 96 of the Regional Trial Court of the National Capital Judicial
Region stationed in Quezon City and presided over by the Honorable
Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody
of the minors Rosalind and Reginald Espiritu to their father,
Reynaldo Espiritu, is reinstated. No special pronouncement is made
as to costs.

SO ORDERED.
FIRST DIVISION
G.R. Nos. 175279-80 June 5, 2013
SUSAN LIM-LUA, Petitioner,
vs.
DANILO Y. LUA, Respondent.
DECISION
VILLARAMA, JR., J.:
In this petition for review on certiorari under Rule 45, petitioner
seeks to set aside the Decision1 dated April 20, 2006 and
Resolution2 dated October 26, 2006 of the Court of Appeals
(CA) dismissing her petition for contempt (CA-G.R. SP No.
01154) and granting respondent's petition for certiorari (CA-
G.R. SP No. 01315).
The factual background is as follows:
On September 3, 2003,3 petitioner Susan Lim-Lua filed an
action for the declaration of nullity of her marriage with
respondent Danilo Y. Lua, docketed as Civil Case No. CEB-
29346 of the Regional Trial Court (RTC) of Cebu City, Branch
14.
In her prayer for support pendente lite for herself and her two
children, petitioner sought the amount of ₱500,000.00 as
monthly support, citing respondent’s huge earnings from
salaries and dividends in several companies and businesses
here and abroad.4
After due hearing, Judge Raphael B. Yrastorza, Sr. issued an
Order5 dated March 31, 2004 granting support pendente lite,
as follows:
From the evidence already adduced by the parties, the amount
of Two Hundred Fifty (₱250,000.00) Thousand Pesos would
be sufficient to take care of the needs of the plaintiff. This
amount excludes the One hundred thirty-five (₱135,000.00)
Thousand Pesos for medical attendance expenses needed by
plaintiff for the operation of both her eyes which is demandable
upon the conduct of such operation. The amounts already
extended to the two (2) children, being a commendable act of
defendant, should be continued by him considering the vast
financial resources at his disposal.
According to Art. 203 of the Family Code, support is
demandable from the time plaintiff needed the said support but
is payable only from the date of judicial demand. Since the
instant complaint was filed on 03 September 2003, the amount
of Two Hundred Fifty (₱250,000.00) Thousand should be paid
by defendant to plaintiff retroactively to such date until the
hearing of the support pendente lite. ₱250,000.00 x 7
corresponding to the seven (7) months that lapsed from
September, 2003 to March 2004 would tantamount to a total of
One Million Seven Hundred Fifty (₱1,750,000.00) Thousand
Pesos. Thereafter, starting the month of April 2004, until
otherwise ordered by this Court, defendant is ordered to pay a
monthly support of Two Hundred Fifty Thousand
(₱250,000.00) Pesos payable within the first five (5) days of
each corresponding month pursuant to the third paragraph of
Art. 203 of the Family Code of the Philippines. The monthly
support of ₱250,000.00 is without prejudice to any increase or
decrease thereof that this Court may grant plaintiff as the
circumstances may warrant i.e. depending on the proof
submitted by the parties during the proceedings for the main
action for support.6
Respondent filed a motion for reconsideration,7 asserting that
petitioner is not entitled to spousal support considering that
she does not maintain for herself a separate dwelling from
their children and respondent has continued to support the
family for their sustenance and well-being in accordance with
family’s social and financial standing. As to the ₱250,000.00
granted by the trial court as monthly support pendente lite, as
well as the ₱1,750,000.00 retroactive support, respondent
found it unconscionable and beyond the intendment of the law
for not having considered the needs of the respondent.
In its May 13, 2004 Order, the trial court stated that the March
31, 2004 Order had become final and executory since
respondent’s motion for reconsideration is treated as a mere
scrap of paper for violation of the threeday notice period under
Section 4, Rule 15 of the 1997 Rules of Civil Procedure, as
amended, and therefore did not interrupt the running of the
period to appeal. Respondent was given ten (10) days to show
cause why he should not be held in contempt of the court for
disregarding the March 31, 2004 order granting support
pendente lite.8
His second motion for reconsideration having been denied,
respondent filed a petition for certiorari in the CA.
On April 12, 2005, the CA rendered its Decision,9 finding merit
in respondent’s contention that the trial court gravely abused
its discretion in granting ₱250,000.00 monthly support to
petitioner without evidence to prove his actual income. The
said court thus decreed:
WHEREFORE, foregoing premises considered, this petition is
given due course. The assailed Orders dated March 31, 2004,
May 13, 2004, June 4, 2004 and June 18, 2004 of the
Regional Trial Court, Branch 14, Cebu City issued in Civil
Case No. CEB No. 29346 entitled "Susan Lim Lua versus
Danilo Y. Lua" are hereby nullified and set aside and instead a
new one is entered ordering herein petitioner:
a) to pay private respondent a monthly support
pendente lite of ₱115,000.00 beginning the month of
April 2005 and every month thereafter within the first
five (5) days thereof;
b) to pay the private respondent the amount of
₱115,000.00 a month multiplied by the number of
months starting from September 2003 until March
2005 less than the amount supposedly given by
petitioner to the private respondent as her and their
two (2) children monthly support; and
c) to pay the costs.
SO ORDERED.10
Neither of the parties appealed this decision of the CA. In a
Compliance11 dated June 28, 2005, respondent attached a
copy of a check he issued in the amount of ₱162,651.90
payable to petitioner. Respondent explained that, as decreed
in the CA decision, he deducted from the amount of support in
arrears (September 3, 2003 to March 2005) ordered by the CA
-- ₱2,185,000.00 -- plus ₱460,000.00 (April, May, June and
July 2005), totaling ₱2,645,000.00, the advances given by him
to his children and petitioner in the sum of ₱2,482,348.16 (with
attached photocopies of receipts/billings).
In her Comment to Compliance with Motion for Issuance of a
Writ of Execution,12 petitioner asserted that none of the
expenses deducted by respondent may be chargeable as part
of the monthly support contemplated by the CA in CA-G.R. SP
No. 84740.
On September 27, 2005, the trial court issued an
Order13 granting petitioner’s motion for issuance of a writ of
execution as it rejected respondent’s interpretation of the CA
decision. Respondent filed a motion for reconsideration and
subsequently also filed a motion for inhibition of Judge
Raphael B. Yrastorza, Sr. On November 25, 2005, Judge
Yrastorza, Sr. issued an Order14 denying both motions.
WHEREFORE, in view of the foregoing premises, both
motions are DENIED. Since a second motion for
reconsideration is prohibited under the Rules, this denial has
attained finality; let, therefore, a writ of execution be issued in
favor of plaintiff as against defendant for the accumulated
support in arrears pendente lite.
Notify both parties of this Order.
SO ORDERED.15
Since respondent still failed and refused to pay the support in
arrears pendente lite, petitioner filed in the CA a Petition for
Contempt of Court with Damages, docketed as CA-G.R. SP
No. 01154 ("Susan Lim Lua versus Danilo Y. Lua").
Respondent, on the other hand, filed CA-G.R. SP No. 01315, a
Petition for Certiorari under Rule 65 of the Rules of Court
("Danilo Y. Lua versus Hon. Raphael B. Yrastorza, Sr., in his
capacity as Presiding Judge of Regional Trial Court of Cebu,
Branch 14, and Susan Lim Lua"). The two cases were
consolidated.
By Decision dated April 20, 2006, the CA set aside the
assailed orders of the trial court, as follows:
WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of Petition
for Contempt of Court with Damages filed by Susan
Lim Lua against Danilo Y. Lua with docket no. SP. CA-
GR No. 01154;
b) GRANTING Danilo Y. Lua’s Petition for Certiorari
docketed as SP. CA-GR No. 01315. Consequently, the
assailed Orders dated 27 September 2005 and 25
November 2005 of the Regional Trial Court, Branch
14, Cebu City issued in Civil Case No. CEB-29346
entitled "Susan Lim Lua versus Danilo Y. Lua, are
hereby NULLIFIED and SET ASIDE, and instead a
new one is entered:
i. ORDERING the deduction of the amount of
Ph₱2,482,348.16 plus 946,465.64, or a total of
PhP3,428,813.80 from the current total
support in arrears of Danilo Y. Lua to his wife,
Susan Lim Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume
payment of his monthly support of
Ph₱115,000.00 pesos starting from the time
payment of this amount was deferred by him
subject to the deductions aforementioned.
iii. DIRECTING the issuance of a permanent
writ of preliminary injunction.
SO ORDERED.16
The appellate court said that the trial court should not have
completely disregarded the expenses incurred by respondent
consisting of the purchase and maintenance of the two cars,
payment of tuition fees, travel expenses, and the credit card
purchases involving groceries, dry goods and books, which
certainly inured to the benefit not only of the two children, but
their mother (petitioner) as well. It held that respondent’s act of
deferring the monthly support adjudged in CA-G.R. SP No.
84740 was not contumacious as it was anchored on valid and
justifiable reasons. Respondent said he just wanted the issue
of whether to deduct his advances be settled first in view of the
different interpretation by the trial court of the appellate court’s
decision in CA-G.R. SP No. 84740. It also noted the lack of
contribution from the petitioner in the joint obligation of
spouses to support their children.
Petitioner filed a motion for reconsideration but it was denied
by the CA.
Hence, this petition raising the following errors allegedly
committed by the CA:
I.
THE HONORABLE COURT ERRED IN NOT FINDING
RESPONDENT GUILTY OF INDIRECT CONTEMPT.
II.
THE HONORABLE COURT ERRED IN ORDERING
THE DEDUCTION OF THE AMOUNT OF
PH₱2,482,348.16 PLUS 946,465.64, OR A TOTAL OF
PH₱3,428,813.80 FROM THE CURRENT TOTAL
SUPPORT IN ARREARS OF THE RESPONDENT TO
THE PETITIONER AND THEIR CHILDREN.17
The main issue is whether certain expenses already incurred
by the respondent may be deducted from the total support in
arrears owing to petitioner and her children pursuant to the
Decision dated April 12, 2005 in CA-G.R. SP No. 84740.
The pertinent provision of the Family Code of the Philippines
provides:
Article 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred
to in the preceding paragraph shall include his schooling or
training for some profession, trade or vocation, even beyond
the age of majority. Transportation shall include expenses in
going to and from school, or to and from place of work.
(Emphasis supplied.)
Petitioner argues that it was patently erroneous for the CA to
have allowed the deduction of the value of the two cars and
their maintenance costs from the support in arrears, as these
items are not indispensable to the sustenance of the family or
in keeping them alive. She points out that in the Decision in
CA-G.R. SP No. 84740, the CA already considered the said
items which it deemed chargeable to respondent, while the
monthly support pendente lite (₱115,000.00) was fixed on the
basis of the documentary evidence of respondent’s alleged
income from various businesses and petitioner’s testimony that
she needed ₱113,000.00 for the maintenance of the
household and other miscellaneous expenses excluding the
₱135,000.00 medical attendance expenses of petitioner.
Respondent, on the other hand, contends that disallowing the
subject deductions would result in unjust enrichment, thus
making him pay for the same obligation twice. Since petitioner
and the children resided in one residence, the groceries and
dry goods purchased by the children using respondent’s credit
card, totalling ₱594,151.58 for the period September 2003 to
June 2005 were not consumed by the children alone but
shared with their mother. As to the Volkswagen Beetle and
BMW 316i respondent bought for his daughter Angelli
Suzanne Lua and Daniel Ryan Lua, respectively, these, too,
are to be considered advances for support, in keeping with the
financial capacity of the family. Respondent stressed that
being children of parents belonging to the upper-class society,
Angelli and Daniel Ryan had never in their entire life
commuted from one place to another, nor do they eat their
meals at "carinderias". Hence, the cars and their maintenance
are indispensable to the children’s day-to-day living, the value
of which were properly deducted from the arrearages in
support pendente lite ordered by the trial and appellate courts.
As a matter of law, the amount of support which those related
by marriage and family relationship is generally obliged to give
each other shall be in proportion to the resources or means of
the giver and to the needs of the recipient.18 Such support
comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.
Upon receipt of a verified petition for declaration of absolute
nullity of void marriage or for annulment of voidable marriage,
or for legal separation, and at any time during the proceeding,
the court, motu proprio or upon verified application of any of
the parties, guardian or designated custodian, may temporarily
grant support pendente lite prior to the rendition of judgment or
final order.19 Because of its provisional nature, a court does
not need to delve fully into the merits of the case before it can
settle an application for this relief. All that a court is tasked to
do is determine the kind and amount of evidence which may
suffice to enable it to justly resolve the application. It is enough
that the facts be established by affidavits or other documentary
evidence appearing in the record.20
In this case, the amount of monthly support pendente lite for
petitioner and her two children was determined after due
hearing and submission of documentary evidence by the
parties. Although the amount fixed by the trial court was
reduced on appeal, it is clear that the monthly support
pendente lite of ₱115,000.00 ordered by the CA was intended
primarily for the sustenance of petitioner and her children, e.g.,
food, clothing, salaries of drivers and house helpers, and other
household expenses. Petitioner’s testimony also mentioned
the cost of regular therapy for her scoliosis and
vitamins/medicines.
ATTY. ZOSA:
xxxx
Q How much do you spend for your food and your two (2)
children every month?
A Presently, Sir?
ATTY. ZOSA:
Yes.
A For the food alone, I spend not over ₱40,000.00 to
₱50,000.00 a month for the food alone.
xxxx
ATTY. ZOSA:
Q What other expenses do you incur in living in that place?
A The normal household and the normal expenses for a family
to have a decent living, Sir.
Q How much other expenses do you incur?
WITNESS:
A For other expenses, is around over a ₱100,000.00, Sir.
Q Why do you incur that much amount?
A For the clothing for the three (3) of us, for the vitamins and
medicines. And also I am having a special therapy to
straighten my back because I am scoliotic. I am advised by the
Doctor to hire a driver, but I cannot still afford it now. Because
my eyesight is not reliable for driving. And I still need another
househelp to accompany me whenever I go marketing
because for my age, I cannot carry anymore heavy loads.
xxxx
ATTY. FLORES:
xxxx
Q On the issue of the food for you and the two (2) children,
you mentioned ₱40,000.00 to ₱50,000.00?
A Yes, for the food alone.
Q Okay, what other possible expenses that you would like to
include in those two (2) items? You mentioned of a driver, am I
correct?
A Yes, I might need two (2) drivers, Sir for me and my children.
Q Okay. How much would you like possibly to pay for those
two (2) drivers?
A I think ₱10,000.00 a month for one (1) driver. So I need two
(2) drivers. And I need another househelp.
Q You need another househelp. The househelp nowadays A Therapy for my scoliotic back and then also for the operation
would charge you something between ₱3,000.00 to ₱4,000.00. both of my eyes. And I am also taking some vitamins from
That’s quite… excel that will cost ₱20,000.00 a month.
A Right now, my househelp is receiving ₱8,000.00. I need Q Okay. Let’s have piece by piece. Have you asked the Doctor
another which I will give a compensation of ₱5,000.00. how much would it cost you for the operation of that scoliotic?
Q Other than that, do you still have other expenses? A Yes before because I was already due last year. Before, this
eye will cost ₱60,000.00 and the other eyes ₱75,000.00.
A My clothing.
Q So for both eyes, you are talking of ₱60,000.00 plus
COURT: ₱75,000.00 is ₱135,000.00?
How about the schooling for your children? A Yes.
WITNESS: xxxx
A The schooling is shouldered by my husband, Your Honor. Q You talk of therapy?
COURT: A Yes.
Everything? Q So how much is that?
A Yes, Your Honor. A Around ₱5,000.00 a week.21
xxxx As to the financial capacity of the respondent, it is beyond
doubt that he can solely provide for the subsistence,
ATTY. FLORES: education, transportation, health/medical needs and
recreational activities of his children, as well as those of
petitioner who was then unemployed and a full-time housewife.
Q Madam witness, let us talk of the present needs. x x x. What Despite this, respondent’s counsel manifested during the same
else, what specific need that you would like to add so I can tell hearing that respondent was willing to grant the amount of only
my client, the defendant. ₱75,000.00 as monthly support pendente lite both for the
children and petitioner as spousal support. Though the
WITNESS: receipts of expenses submitted in court unmistakably show
how much respondent lavished on his children, it appears that
A I need to have an operation both of my eyes. I also need a the matter of spousal support was a different matter altogether.
special therapy for my back because I am scoliotic, three (3) Rejecting petitioner’s prayer for ₱500,000.00 monthly support
times a week. and finding the ₱75,000.00 monthly support offered by
respondent as insufficient, the trial court fixed the monthly
Q That is very reasonable. [W]ould you care to please repeat support pendente lite at ₱250,000.00. However, since the
that? supposed income in millions of respondent was based merely
on the allegations of petitioner in her complaint and registration
documents of various corporations which respondent insisted
are owned not by him but his parents and siblings, the CA
reduced the amount of support pendente lite to ₱115,000.00,
which ruling was no longer questioned by both parties.
Controversy between the parties resurfaced when
respondent’s compliance with the final CA decision indicated
that he deducted from the total amount in arrears
(₱2,645,000.00) the sum of ₱2,482,348.16, representing the
value of the two cars for the children, their cost of maintenance
and advances given to petitioner and his children. Respondent
explained that the deductions were made consistent with the
fallo of the CA Decision in CA-G.R. SP No. 84740 ordering him
to pay support pendente lite in arrears less the amount
supposedly given by him to petitioner as her and their two
children’s monthly support.
The following is a summary of the subject deductions under
Compliance dated June 28, 2005, duly supported by
receipts22:
Car purchases for Angelli Suzanne Php1,350,000.00
-
and Daniel Ryan - 613,472.86
Car Maintenance fees of Angelli - 51,232.50
Suzanne
Credit card statements of Daniel 348,682.28
Ryan -
Car Maintenance fees of Daniel 118,960.52
Ryan -
Php2,482,348.16
After the trial court disallowed the foregoing deductions,
respondent filed a motion for reconsideration further asserting
that the following amounts, likewise with supporting receipts,
be considered as additional advances given to petitioner and
the children23:
Medical expenses of Susan Lim- Php 42,450.71
Lua
 Dental Expenses of Daniel Ryan 11,500.00
Travel expenses of Susan Lim-Lua 14,611.15
Credit card purchases of Angelli 408,891.08
Suzanne
Salon and travel expenses of 87,112.70
Angelli
Suzanne
School expenses of Daniel Ryan 260,900.00
Lua
Cash given to Daniel and Angelli 121,000.00
TOTAL - Php 946,465.64
GRAND TOTAL - Php
3,428,813.80
The CA, in ruling for the respondent said that all the foregoing
expenses already incurred by the respondent should, in equity,
be considered advances which may be properly deducted from
the support in arrears due to the petitioner and the two
children. Said court also noted the absence of petitioner’s
contribution to the joint obligation of support for their children.
We reverse in part the decision of the CA.
Judicial determination of support pendente lite in cases of legal
separation and petitions for declaration of nullity or annulment
of marriage are guided by the following provisions of the Rule
on Provisional Orders24
Sec. 2. Spousal Support.–In determining support for the
spouses, the court may be guided by the following rules:
(a) In the absence of adequate provisions in a written
agreement between the spouses, the spouses may be
supported from the properties of the absolute
community or the conjugal partnership.
(b) The court may award support to either spouse in
such amount and for such period of time as the court
may deem just and reasonable based on their
standard of living during the marriage.
(c) The court may likewise consider the following
factors: (1) whether the spouse seeking support is the
custodian of a child whose circumstances make it
appropriate for that spouse not to seek outside
employment; (2) the time necessary to acquire
sufficient education and training to enable the spouse
seeking support to find appropriate employment, and
that spouse’s future earning capacity; (3) the duration
of the marriage; (4) the comparative financial
resources of the spouses, including their comparative
earning abilities in the labor market; (5) the needs and
obligations of each spouse; (6) the contribution of each
spouse to the marriage, including services rendered in
home-making, child care, education, and career
building of the other spouse; (7) the age and health of
the spouses; (8) the physical and emotional conditions
of the spouses; (9) the ability of the supporting spouse
to give support, taking into account that spouse’s
earning capacity, earned and unearned income,
assets, and standard of living; and (10) any other
factor the court may deem just and equitable.
(d) The Family Court may direct the deduction of the
provisional support from the salary of the spouse.
Sec. 3. Child Support.–The common children of the spouses
shall be supported from the properties of the absolute
community or the conjugal partnership.
Subject to the sound discretion of the court, either parent or
both may be ordered to give an amount necessary for the
support, maintenance, and education of the child. It shall be in
proportion to the resources or means of the giver and to the
necessities of the recipient.
In determining the amount of provisional support, the court
may likewise consider the following factors: (1) the financial
resources of the custodial and non-custodial parent and those
of the child; (2) the physical and emotional health of the child
and his or her special needs and aptitudes; (3) the standard of
living the child has been accustomed to; (4) the non-monetary
contributions that the parents will make toward the care and
well-being of the child.
The Family Court may direct the deduction of the provisional
support from the salary of the parent.
Since the amount of monthly support pendente lite as fixed by
the CA was not appealed by either party, there is no
controversy as to its sufficiency and reasonableness. The
dispute concerns the deductions made by respondent in
settling the support in arrears.
On the issue of crediting of money payments or expenses
against accrued support, we find as relevant the following
rulings by US courts.
In Bradford v. Futrell,25 appellant sought review of the decision
of the Circuit Court which found him in arrears with his child
support payments and entered a decree in favor of appellee
wife. He complained that in determining the arrearage figure,
he should have been allowed full credit for all money and items
of personal property given by him to the children themselves,
even though he referred to them as gifts. The Court of Appeals
of Maryland ruled that in the suit to determine amount of
arrears due the divorced wife under decree for support of
minor children, the husband (appellant) was not entitled to
credit for checks which he had clearly designated as gifts, nor
was he entitled to credit for an automobile given to the oldest
son or a television set given to the children. Thus, if the
children remain in the custody of the mother, the father is not
entitled to credit for money paid directly to the children if such
was paid without any relation to the decree.
In the absence of some finding of consent by the mother, most
courts refuse to allow a husband to dictate how he will meet
the requirements for support payments when the mode of
payment is fixed by a decree of court. Thus he will not be
credited for payments made when he unnecessarily interposed
himself as a volunteer and made payments direct to the
children of his own accord. Wills v. Baker, 214 S. W. 2d 748
(Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah
1935). In the latter case the court said in part: "The payments
to the children themselves do not appear to have been made
as payments upon alimony, but were rather the result of his
fatherly interest in the welfare of those children. We do not
believe he should be permitted to charge them to plaintiff. By
so doing he would be determining for Mrs. Openshaw the
manner in which she should expend her allowances. It is a
very easy thing for children to say their mother will not give
them money, especially as they may realize that such a plea is
effective in attaining their ends. If she is not treating them right
the courts are open to the father for redress."26
In Martin, Jr. v. Martin,27 the Supreme Court of Washington
held that a father, who is required by a divorce decree to make
child support payments directly to the mother, cannot claim
credit for payments voluntarily made directly to the children.
However, special considerations of an equitable nature may
justify a court in crediting such payments on his indebtedness
to the mother, when such can be done without injustice to her.
The general rule is to the effect that when a father is required
by a divorce decree to pay to the mother money for the
support of their dependent children and the unpaid and
accrued installments become judgments in her favor, he
cannot, as a matter of law, claim credit on account of
payments voluntarily made directly to the children. Koon v.
Koon, supra; Briggs v. Briggs, supra. However, special
considerations of an equitable nature may justify a court in
crediting such payments on his indebtedness to the mother,
when that can be done without injustice to her. Briggs v.
Briggs, supra. The courts are justifiably reluctant to lay down
any general rules as to when such credits may be
allowed.28 (Emphasis supplied.)
Here, the CA should not have allowed all the expenses
incurred by respondent to be credited against the accrued
support pendente lite. As earlier mentioned, the monthly
support pendente lite granted by the trial court was intended
primarily for food, household expenses such as salaries of
drivers and house helpers, and also petitioner’s scoliosis
therapy sessions. Hence, the value of two expensive cars
bought by respondent for his children plus their maintenance
cost, travel expenses of petitioner and Angelli, purchases
through credit card of items other than groceries and dry
goods (clothing) should have been disallowed, as these bear
no relation to the judgment awarding support pendente lite.
While it is true that the dispositive portion of the executory
decision in CA-G.R. SP No. 84740 ordered herein respondent
to pay the support in arrears "less than the amount supposedly
given by petitioner to the private respondent as her and their
two (2) children monthly support," the deductions should be
limited to those basic needs and expenses considered by the
trial and appellate courts. The assailed ruling of the CA
allowing huge deductions from the accrued monthly support of
petitioner and her children, while correct insofar as it
commends the generosity of the respondent to his children, is
clearly inconsistent with the executory decision in CA-G.R. SP
No. 84740. More important, it completely ignores the unfair
consequences to petitioner whose sustenance and well-being,
was given due regard by the trial and appellate courts. This is
evident from the March 31, 2004 Order granting support
pendente lite to petitioner and her children, when the trial court
observed:
While there is evidence to the effect that defendant is giving
some forms of financial assistance to his two (2) children via
their credit cards and paying for their school expenses, the
same is, however, devoid of any form of spousal support to the
plaintiff, for, at this point in time, while the action for nullity of
marriage is still to be heard, it is incumbent upon the
defendant, considering the physical and financial condition of
the plaintiff and the overwhelming capacity of defendant, to
extend support unto the latter. x x x29
On appeal, while the Decision in CA-G.R. SP No. 84740
reduced the amount of monthly support fixed by the trial court,
it nevertheless held that considering respondent’s financial
resources, it is but fair and just that he give a monthly support
for the sustenance and basic necessities of petitioner and his
children. This would imply that any amount respondent seeks
to be credited as monthly support should only cover those
incurred for sustenance and household expenses.1avvphi1
In the case at bar, records clearly show and in fact has been
admitted by petitioner that aside from paying the expenses of
their two (2) children’s schooling, he gave his two (2) children
two (2) cars and credit cards of which the expenses for various
items namely: clothes, grocery items and repairs of their cars
were chargeable to him which totaled an amount of more than
One Hundred Thousand (₱100,000.00) for each of them and
considering that as testified by the private respondent that she
needs the total amount of ₱113,000.00 for the maintenance of
the household and other miscellaneous expenses and
considering further that petitioner can afford to buy cars for his
two (2) children, and to pay the expenses incurred by them
which are chargeable to him through the credit cards he
provided them in the amount of ₱100,000.00 each, it is but fair
and just that the monthly support pendente lite for his wife,
herein private respondent, be fixed as of the present in the
amount of ₱115,000.00 which would be sufficient enough to
take care of the household and other needs. This monthly
support pendente lite to private respondent in the amount of
₱115,000.00 excludes the amount of One Hundred ThirtyFive
(₱135,000.00) Thousand Pesos for medical attendance
expenses needed by private respondent for the operation of
both her eyes which is demandable upon the conduct of such
operation. Likewise, this monthly support of ₱115,000.00 is
without prejudice to any increase or decrease thereof that the
trial court may grant private respondent as the circumstances
may warrant i.e. depending on the proof submitted by the
parties during the proceedings for the main action for support.
The amounts already extended to the two (2) children, being a
commendable act of petitioner, should be continued by him
considering the vast financial resources at his
disposal.30 (Emphasis supplied.)
Accordingly, only the following expenses of respondent may
be allowed as deductions from the accrued support pendente
lite for petitioner and her children:
1âwphi1
Medical expenses of Susan Lim-Lua Php 42,450.71
Dental Expenses of Daniel Ryan 11,500.00
Credit card purchases of Angelli 365,282.20
(Groceries and Dry Goods) 228,869.38
Credit Card purchases of Daniel
Ryan
TOTAL Php
648,102.29
As to the contempt charge, we sustain the CA in holding that
respondent is not guilty of indirect contempt.
Contempt of court is defined as a disobedience to the court by
acting in opposition to its authority, justice, and dignity. It
signifies not only a willful disregard or disobedience of the WHEREFORE, the petition is PARTLY GRANTED. The
court’s order, but such conduct which tends to bring the Decision dated April 20, 2006 of the Court of Appeals in CA-
authority of the court and the administration of law into G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read
disrepute or, in some manner, to impede the due as follows:
administration of justice.31 To constitute contempt, the act must
be done willfully and for an illegitimate or improper "WHEREFORE, judgment is hereby rendered:
purpose.32 The good faith, or lack of it, of the alleged
contemnor should be considered.33 a) DISMISSING, for lack of merit, the case of Petition
for Contempt of Court with Damages filed by Susan
Respondent admittedly ceased or suspended the giving of Lim Lua against Danilo Y. Lua with docket no. SP. CA-
monthly support pendente lite granted by the trial court, which G.R. No. 01154;
is immediately executory. However, we agree with the CA that
respondent’s act was not contumacious considering that he b) GRANTING IN PART Danilo Y. Lua's Petition for
had not been remiss in actually providing for the needs of his Certiorari docketed as SP. CA-G.R. No. 01315.
children. It is a matter of record that respondent continued
Consequently, the assailed Orders dated 27
shouldering the full cost of their education and even beyond
September 2005 and 25 November 2005 of the
their basic necessities in keeping with the family’s social
Regional Trial Court, Branch 14, Cebu City issued in
status. Moreover, respondent believed in good faith that the
Civil Case No. CEB-29346 entitled "Susan Lim Lua
trial and appellate courts, upon equitable grounds, would allow versus Danilo Y. Lua, are hereby NULLIFIED and SET
him to offset the substantial amounts he had spent or paid ASIDE, and instead a new one is entered:
directly to his children.
i. ORDERING the deduction of the amount of
Respondent complains that petitioner is very much capacitated
Php 648,102.29 from the support pendente lite
to generate income on her own because she presently in arrears of Danilo Y. Lua to his wife, Susan
maintains a boutique at the Ayala Center Mall in Cebu City and
Lim Lua and their two (2) children;
at the same time engages in the business of lending money.
He also claims that the two children have finished their
education and are now employed in the family business ii. ORDERING Danilo Y. Lua to resume
earning their own salaries. payment of his monthly support of
Ph₱115,000.00 pesos starting from the time
payment of this amount was deferred by him
Suffice it to state that the matter of increase or reduction of
subject to the deduction aforementioned.
support should be submitted to the trial court in which the
action for declaration for nullity of marriage was filed, as this
Court is not a trier of facts. The amount of support may be iii. DIRECTING the immediate execution of
reduced or increased proportionately according to the this judgment.
reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to support.34 As we SO ORDERED."
held in Advincula v. Advincula35
No pronouncement as to costs.
…Judgment for support does not become final. The right to
support is of such nature that its allowance is essentially SO ORDERED.
provisional; for during the entire period that a needy party is
entitled to support, his or her alimony may be modified or
altered, in accordance with his increased or decreased needs,
and with the means of the giver. It cannot be regarded as
subject to final determination.36
FIRST DIVISION
G.R. No. 125041 June 30, 2006
MA. BELEN B. MANGONON, for and in behalf of her minor children
REBECCA ANGELA DELGADO and REGINA ISABEL
DELGADO. Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-
SALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO C.
DELGADO and FRANCISCO C. DELGADO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals dated 20 March 1996, affirming
the Order, dated 12 September 19952 of the Regional Trial Court
(RTC), Branch 149, Makati, granting support pendente lite to
Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed
Delgado.
The generative facts leading to the filing of the present petition are
as follows:
On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in
behalf of her then minor children Rica and Rina, a Petition for
Declaration of Legitimacy and Support, with application for support
pendente lite with the RTC Makati.3In said petition, it was alleged
that on 16 February 1975, petitioner and respondent Federico
Delgado were civilly married by then City Court Judge Eleuterio
Agudo in Legaspi City, Albay. At that time, petitioner was only 21
years old while respondent Federico was only 19 years old. As the
marriage was solemnized without the required consent per Article
85 of the New Civil Code,4 it was annulled on 11 August 1975 by the
Quezon City Juvenile and Domestic Relations Court.5
On 25 March 1976, or within seven months after the annulment of
their marriage, petitioner gave birth to twins Rica and Rina.
According to petitioner, she, with the assistance of her second
husband Danny Mangonon, raised her twin daughters as private
respondents had totally abandoned them. At the time of the
institution of the petition, Rica and Rina were about to enter college
in the United States of America (USA) where petitioner, together
with her daughters and second husband, had moved to and finally
settled in. Rica was admitted to the University of Massachusetts
(Amherst) while Rina was accepted by the Long Island University
and Western New England College. Despite their admissions to said
universities, Rica and Rina were, however, financially incapable of
pursuing collegiate education because of the following:
i) The average annual cost for college education in the US is
about US$22,000/year, broken down as follows:
Tuition Fees US$13,000.00
Room & Board 5,000.00
Books 1,000.00
Yearly Transportation &
Meal Allowance 3,000.00
Total US$ 22,000.00
or a total of US$44,000.00, more or less, for both
Rica and Rina
ii) Additionally, Rica and Rina need general maintenance
support each in the amount of US$3,000.00 per year or a
total of US$6,000 per year.
iii) Unfortunately, petitioner’s monthly income from her 2
jobs is merely US$1,200 after taxes which she can hardly
give general support to Rica and Rina, much less their
required college educational support.
iv) Neither can petitioner’s present husband be compelled
to share in the general support and college education of
Rica and Rina since he has his own son with petitioner and
own daughter (also in college) to attend to.
v) Worse, Rica and Rina’s petitions for Federal Student Aid
have been rejected by the U.S. Department of Education.6
Petitioner likewise averred that demands7 were made upon
Federico and the latter’s father, Francisco,8 for general support and
for the payment of the required college education of Rica and Rina.
The twin sisters even exerted efforts to work out a settlement
concerning these matters with respondent Federico and respondent
Francisco, the latter being generally known to be financially well-
off.9 These demands, however, remained unheeded. Considering
the impending deadline for admission to college and the opening of
classes, petitioner and her then minor children had no choice but to
file the petition before the trial court.
Petitioner also alleged that Rica and Rina are her legitimate
daughters by respondent Federico since the twin sisters were born
within seven months from the date of the annulment of her
marriage to respondent Federico. However, as respondent Federico
failed to sign the birth certificates of Rica and Rina, it was imperative
that their status as legitimate children of respondent Federico, and
as granddaughters of respondent Francisco, be judicially declared
pursuant to Article 173 of the Family Code. 10
As legitimate children and grandchildren, Rica and Rina are entitled
to general and educational support under Articles 17411 and
195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the
Family Code. Petitioner alleged that under these provisions, in case
of default on the part of the parents, the obligation to provide
support falls upon the grandparents of the children; thus,
respondent Federico, or in his default, respondent Francisco should
be ordered to provide general and educational support for Rica and
Rina in the amount of US$50,000.00, more or less, per year.
Petitioner also claimed that she was constrained to seek support
pendente lite from private respondents - who are millionaires with
extensive assets both here and abroad - in view of the imminent
opening of classes, the possibility of a protracted litigation, and Rica
and Rina’s lack of financial means to pursue their college education
in the USA.
In his Answer,15 respondent Francisco stated that as the birth
certificates of Rica and Rina do not bear the signature of respondent
Federico, it is essential that their legitimacy be first established as
"there is no basis to claim support until a final and executory judicial
declaration has been made as to the civil status of the
children."16 Whatever good deeds he may have done to Rica and
Rina, according to respondent Francisco, was founded on pure acts
of Christian charity. He, likewise, averred that the order of liability
for support under Article 199 of the Family Code is not concurrent
such that the obligation must be borne by those more closely
related to the recipient. In this case, he maintained that
responsibility should rest on the shoulders of petitioner and her
second husband, the latter having voluntarily assumed the duties
and responsibilities of a natural father. Even assuming that he is
responsible for support, respondent Francisco contends that he
could not be made to answer beyond what petitioner and the father
could afford.
On 24 May 1994, petitioner filed a Motion to Declare Defendant
(respondent herein) Federico in Default.17 This was favorably acted
upon by the trial court in the Order dated 16 June 1994.18
On 5 August 1994, respondent Federico filed a Motion to Lift Order
of Default alleging that the summons and a copy of the petition
were not served in his correct address.19 Attached thereto was his
Answer20 where he claimed that petitioner had no cause of action
against him. According to him, he left for abroad and stayed there
for a long time "[w]ithin the first one hundred twenty (120) days of
the three hundred days immediately preceding March 25, 1976" and
that he only came to know about the birth of Rica and Rina when
the twins introduced themselves to him seventeen years later. In
order not to antagonize the two, respondent Federico claimed he
did not tell them that he could not be their father. Even assuming
that Rica and Rina are, indeed, his daughters, he alleged that he
could not give them the support they were demanding as he was
only making P40,000.00 a month.
Finding sufficient ground in the motion filed by respondent
Federico, the trial court lifted its Order dated 16 June 1994 and
admitted his Answer.21
In the meantime, on 25 April 1994, petitioner filed an Urgent
Motion to Set Application for Support Pendente Lite for Hearing
because Rica and Rina both badly needed immediate financial
resources for their education.22 This Motion was opposed by
respondent Francisco.23 After both parties submitted supplemental
pleadings to bolster their respective positions, the trial court
resolved the motion in an Order dated 12 September 1995 in this
wise:
WHEREFORE, in the light of the foregoing considerations,
respondents are hereby directed to provide a monthly support
(pendente lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel Delgado to be
delivered within the first five days of each month without need of
demand.24
Unsatisfied with the Order of the trial court, petitioner brought the
case to the Court of Appeals via Petition for Certiorari. The Court of
Appeals affirmed the holding of the trial court and disposed the
petition in the following manner:
WHEREFORE, the petition for certiorari is hereby DISMISSED and the
Order of the lower court dated September 12, 1995 is hereby
AFFIRMED.25
Petitioner’s Motion for Reconsideration was denied through the
Resolution of the Court of Appeals dated 16 May 1996.26
Petitioner is now before this Court claiming that the Decision of the
Court of Appeals was tainted with the following errors:
RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT
RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT
PENDENTE LITE GRANTED TO PETITIONER’S CHILDREN AT A
MEASLEY P5,000.00 PER CHILD.
I.
RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE
FINANCIAL INCAPACITY OF RICA AND RINA’S PARENTS IN DEFAULT
OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE
GRANDFATHER.
II.
IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE
SUPPORT – GRANDFATHER DON PACO – IS UNDOUBTEDLY CAPABLE
OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED
IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT
PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE
EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS. 27
At the time of the filing of the present Petition, it is alleged that Rica
had already entered Rutgers University in New Jersey with a budget
of US$12,500.00 for academic year 1994-1995. She was able to
obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan
from the US government in the amount of US$2,615.00. 28 In order
to defray the remaining balance of Rica’s education for said school
year, petitioner claims that she had to secure a loan under the
Federal Direct Student Loan Program.
Meanwhile, Rina entered CW Post, Long Island University, where
she was expected to spend US$20,000.00 for the school year 1994-
1995. She was given a financial grant of US$6,000.00, federal work
study assistance of US$2,000.00, and a Federal Stafford loan of
US$2,625.00.29 Again, petitioner obtained a loan to cover the
remainder of Rina’s school budget for the year.
Petitioner concedes that under the law, the obligation to furnish
support to Rica and Rina should be first imposed upon their parents.
She contends, however, that the records of this case demonstrate
her as well as respondent Federico’s inability to give the support
needed for Rica and Rina’s college education. Consequently, the
obligation to provide support devolves upon respondent Francisco
being the grandfather of Rica and Rina.
Petitioner also maintains that as respondent Francisco has the
financial resources to help defray the cost of Rica and Rina’s
schooling, the Court of Appeals then erred in sustaining the trial
court’s Order directing respondent Federico to pay Rica and Rina the
amount of award P5,000.00 each as monthly support pendente lite.
On the other hand, respondent Francisco argues that the trial court
correctly declared that petitioner and respondent Federico should
be the ones to provide the support needed by their twin daughters
pursuant to Article 199 of the Family Code. He also maintains that
aside from the financial package availed of by Rica and Rina in the
form of state tuition aid grant, work study program and federal
student loan program, petitioner herself was eligible for, and had
availed herself of, the federal parent loan program based on her
income and properties in the USA. He, likewise, insists that
assuming he could be held liable for support, he has the option to
fulfill the obligation either by paying the support or receiving and
maintaining in the dwelling here in the Philippines the person
claiming support.30 As an additional point to be considered by this
Court, he posits the argument that because petitioner and her twin
daughters are now US citizens, they cannot invoke the Family Code
provisions on support as "[l]aws relating to family rights and duties,
or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad."31
Respondent Federico, for his part, continues to deny having sired
Rica and Rina by reiterating the grounds he had previously raised
before the trial court. Like his father, respondent Federico argues
that assuming he is indeed the father of the twin sisters, he has the
option under the law as to how he would provide support. Lastly, he
assents with the declaration of the trial court and the Court of
Appeals that the parents of a child should primarily bear the burden
of providing support to their offspring.
The petition is meritorious.
As a preliminary matter, we deem it necessary to briefly discuss the
essence of support pendente lite. The pertinent portion of the Rules
of Court on the matter provides:
Rule 61
SUPPORT ‘PENDENTE LITE’
SECTION 1. Application.- At the commencement of the proper action
or proceeding, or at any time prior to the judgment or final order, a
verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions
of both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof.
xxxx
SEC. 4. Order.- The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may require,
having due regard to the probable outcome of the case and such
other circumstances as may aid in the proper resolution of the
question involved. If the application is granted, the court shall fix
the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of
the applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the
application is denied, the principal case shall be tried and decided as
early as possible.
Under this provision, a court may temporarily grant support
pendente lite prior to the rendition of judgment or final order.
Because of its provisional nature, a court does not need to delve
fully into the merits of the case before it can settle an application
for this relief. All that a court is tasked to do is determine the kind
and amount of evidence which may suffice to enable it to justly
resolve the application. It is enough that the facts be established by
affidavits or other documentary evidence appearing in the
record.32lavvphi1.net
After the hearings conducted on this matter as well as the evidence
presented, we find that petitioner was able to establish, by prima
facie proof, the filiation of her twin daughters to private
respondents and the twins’ entitlement to support pendente lite. In
the words of the trial court –
By and large, the status of the twins as children of Federico cannot
be denied. They had maintained constant communication with their
grandfather Francisco. As a matter of fact, respondent Francisco
admitted having wrote several letters to Rica and Rina (Exhs. A, B, C,
D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom
thereof, respondent Francisco wrote the names of Rica and
Rina Delgado. He therefore was very well aware that they bear the
surname Delgado. Likewise, he referred to himself in his letters as
either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989
(Exh. G-21), he said "as the grandfather, am extending a financial
help of US$1,000.00." On top of this, respondent Federico even gave
the twins a treat to Hongkong during their visit to the Philippines.
Indeed, respondents, by their actuations, have shown beyond doubt
that the twins are the children of Federico. 33
Having addressed the issue of the propriety of the trial court’s grant
of support pendente lite in favor of Rica and Rina, the next question
is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in the
order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.
An eminent author on the subject explains that the obligation to
give support rests principally on those more closely related to the
recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those
who are called upon to provide support do not have the means to
do so.34
In this case, both the trial court and the Court of Appeals held
respondent Federico liable to provide monthly support pendente
lite in the total amount of P10,000.00 by taking into consideration
his supposed income of P30,000.00 to P40,000.00 per month. We
are, however, unconvinced as to the veracity of this ground relied
upon by the trial court and the Court of Appeals.
It is a basic procedural edict that questions of fact cannot be the
proper subject of a petition for review under Rule 45 of the 1997
Rules of Civil Procedure. The rule finds a more stringent application
where the Court of Appeals upholds the findings of fact of the trial
court; in such a situation, this Court, as the final arbiter, is generally
bound to adopt the facts as determined by the appellate and the
lower courts. This rule, however, is not ironclad as it admits of the
following recognized exceptions: "(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 petitioner’s 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."35 The case at bar
falls within the seventh and eleventh exceptions.
The trial court gave full credence to respondent Federico’s
allegation in his Answer36 and his testimony37 as to the amount of
his income. We have, however, reviewed the records of this case
and found them bereft of evidence to support his assertions
regarding his employment and his earning. Notably, he was even
required by petitioner’s counsel to present to the court his income
tax return and yet the records of this case do not bear a copy of said
document.38 This, to our mind, severely undermines the truthfulness
of respondent Federico’s assertion with respect to his financial
status and capacity to provide support to Rica and Rina.
In addition, respondent Francisco himself stated in the witness
stand that as far as he knew, his son, respondent Federico did not
own anything –
"Atty. Lopez:
I have here another letter under the letter head of Mr. & Mrs. Dany
Mangonon, dated October 19, 1991 addressed to Mr. Francisco
Delgado signed by "sincerely, Danny Mangonon, can you
remember."
xxxx
WITNESS:
A: I do remember this letter because it really irritated me so much
that I threw it away in a waste basket. It is a very demanding letter,
that is what I do not like at all.
ATTY. LOPEZ:
Q: It is stated in this letter that "I am making this request to you and
not to your son, Rico, for reasons we both are aware of." Do you
know what reason that is?
A: Yes. The reason is that my son do not have fix employment and
do not have fix salary and income and they want to depend on the
lolo.
x x x xlavvphi1.net
Q: Would you have any knowledge if Federico owns a house and
lot?
A: Not that I know. I do not think he has anything.
Q: How about a car?
A: Well, his car is owned by my company.39
Respondent Federico himself admitted in court that he had no
property of his own, thus:
Q: You also mentioned that you are staying at Mayflower Building
and you further earlier testified that this building belongs to Citadel
Corporation. Do you confirm that?
A: Yes, sir.
Q: What car are you driving, Mr. Witness?
A: I am driving a lancer, sir.
Q: What car, that registered in the name of the corporation?
A: In the corporation, sir.
Q: What corporation is that?
A: Citadel Commercial, Inc., sir.
Q: What properties, if any, are registered in your name, do you have
any properties, Mr. Witness?
A: None, sir."40 (Emphasis supplied.)
Meanwhile, respondent Francisco asserts that petitioner possessed
the capacity to give support to her twin daughters as she has gainful
employment in the USA. He even went as far as to state that
petitioner’s income abroad, when converted to Philippine peso, was
much higher than that received by a trial court judge here in the
Philippines. In addition, he claims that as she qualified for the
federal parent loan program, she could very well support the college
studies of her daughters.
We are unconvinced. Respondent Francisco’s assertion that
petitioner had the means to support her daughters’ education is
belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If
petitioner were really making enough money abroad, she certainly
would not have felt the need to apply for said loan. The fact that
petitioner was compelled to take out a loan is enough indication
that she did not have enough money to enable her to send her
daughters to college by herself. Moreover, even Rica and Rina
themselves were forced by the circumstances they found
themselves in to secure loans under their names so as not to delay
their entrance to college.
There being prima facie evidence showing that petitioner and
respondent Federico are the parents of Rica and Rina, petitioner and
respondent Federico are primarily charged to support their
children’s college education. In view however of their incapacities,
the obligation to furnish said support should be borne by
respondent Francisco. Under Article 199 of the Family Code,
respondent Francisco, as the next immediate relative of Rica and
Rina, is tasked to give support to his granddaughters in default of
their parents. It bears stressing that respondent Francisco is the
majority stockholder and Chairman of the Board of Directors of
Citadel Commercial, Incorporated, which owns and manages twelve
gasoline stations, substantial real estate, and is engaged in shipping,
brokerage and freight forwarding. He is also the majority
stockholder and Chairman of the Board of Directors of Citadel
Shipping which does business with Hyundai of Korea. Apart from
these, he also owns the Citadel Corporation which, in turn, owns
real properties in different parts of the country. He is likewise the
Chairman of the Board of Directors of Isla Communication Co. and
he owns shares of stocks of Citadel Holdings. In addition, he owns
real properties here and abroad.41 It having been established that
respondent Francisco has the financial means to support his
granddaughters’ education, he, in lieu of petitioner and respondent
Federico, should be held liable for support pendente lite.
Anent respondent Francisco and Federico’s claim that they have the
option under the law as to how they could perform their obligation
to support Rica and Rina, respondent Francisco insists that Rica and
Rina should move here to the Philippines to study in any of the local
universities. After all, the quality of education here, according to
him, is at par with that offered in the USA. The applicable provision
of the Family Code on this subject provides:
Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either by paying the allowance fixed, or by
receiving and maintaining in the family dwelling the person who has
a right to receive support. The latter alternative cannot be availed of
in case there is a moral or legal obstacle thereto.
Under the abovecited provision, the obligor is given the choice as to
how he could dispense his obligation to give support. Thus, he may
give the determined amount of support to the claimant or he may
allow the latter to stay in the family dwelling. The second option
cannot be availed of in case there are circumstances, legal or moral,
which should be considered.
In this case, this Court believes that respondent Francisco could not
avail himself of the second option. From the records, we gleaned
that prior to the commencement of this action, the relationship
between respondent Francisco, on one hand, and petitioner and her
twin daughters, on the other, was indeed quite pleasant. The
correspondences exchanged among them expressed profound
feelings of thoughtfulness and concern for one another’s well-being.
The photographs presented by petitioner as part of her exhibits
presented a seemingly typical family celebrating kinship. All of
these, however, are now things of the past. With the filing of this
case, and the allegations hurled at one another by the parties, the with the trial of the main case and the immediate resolution of the
relationships among the parties had certainly been affected. same with deliberate dispatch. The RTC Judge, Branch 149, Makati,
Particularly difficult for Rica and Rina must be the fact that those is further directed to submit a report of his compliance with the
who they had considered and claimed as family denied having any directive regarding the support pendente lite within ten (10) days
familial relationship with them. Given all these, we could not see from compliance thereof.
Rica and Rina moving back here in the Philippines in the company of
those who have disowned them.
Finally, as to the amount of support pendente lite, we take our
bearings from the provision of the law mandating the amount of
support to be proportionate to the resources or means of the giver
and to the necessities of the recipient.42 Guided by this principle, we
hold respondent Francisco liable for half of the amount of school
expenses incurred by Rica and Rina as support pendente lite. As
established by petitioner, respondent Francisco has the financial
resources to pay this amount given his various business endeavors.
Considering, however, that the twin sisters may have already been
done with their education by the time of the promulgation of this
decision, we deem it proper to award support pendente lite in
arrears43 to be computed from the time they entered college until
they had finished their respective studies.
The issue of the applicability of Article 15 of the Civil Code on
petitioner and her twin daughters raised by respondent Francisco is
best left for the resolution of the trial court. After all, in case it
would be resolved that Rica and Rina are not entitled to support
pendente lite, the court shall then order the return of the amounts
already paid with legal interest from the dates of actual payment.44
WHEREFORE, premises considered, this Petition is PARTIALLY
GRANTED. The Decision of the Court of Appeals dated 20 March
1996 and Resolution dated 16 May 1996 affirming the Order dated
12 September 1995 of the Regional Trial Court, Branch 149, Makati,
fixing the amount of support pendente lite to P5,000.00 for Rebecca
Angela and Regina Isabel, are hereby MODIFIED in that respondent
Francisco Delgado is hereby held liable for support pendente lite in
the amount to be determined by the trial court pursuant to this
Decision. Let the records of this case be remanded to the trial court
for the determination of the proper amount of support pendente
lite for Rebecca Angela and Regina Isabel as well as the arrearages
due them in accordance with this Decision within ten (10) days from
receipt hereof. Concomitantly, the trial court is directed to proceed
THIRD DIVISION
G.R. No. 104818 September 17, 1993
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by
her Attorney-in-Fact MOISES R. AVERA, respondents.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private respondent.
ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling
finding no grave abuse of discretion in the lower court's order
denying petitioner's motion to dismiss the petition for declaration of
nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo
filed a petition before the Regional Trial Court of Pasig entitled
"Declaration of Nullity of Marriage and Separation of Property"
against petitioner Roberto Domingo. The petition which was
docketed as Special Proceedings No. 1989-J alleged among others
that: they were married on November 29, 1976 at the YMCA Youth
Center Bldg., as evidenced by a Marriage Contract Registry No.
1277K-76 with Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still
existing; she came to know of the prior marriage only sometime in
1983 when Emerlina dela Paz sued them for bigamy; from January
23 1979 up to the present, she has been working in Saudi Arabia and
she used to come to the Philippines only when she would avail of
the one-month annual vacation leave granted by her foreign
employer since 1983 up to the present, he has been unemployed
and completely dependent upon her for support and subsistence;
out of her personal earnings, she purchased real and personal
properties with a total amount of approximately P350,000.00, which
are under the possession and administration of Roberto; sometime
in June 1989, while on her one-month vacation, she discovered that
he was cohabiting with another woman; she further discovered that
he had been disposing of some of her properties without her
knowledge or consent; she confronted him about this and observed that although the
thereafter appointed her brother Moises R. Avera as her attorney- second marriage can be
in-fact to take care of her properties; he failed and refused to turn presumed to be void ab initio as
over the possession and administration of said properties to her it was celebrated while the first
brother/attorney-in-fact; and he is not authorized to administer and marriage was still subsisting, still
possess the same on account of the nullity of their marriage. The there is need for judicial
petition prayed that a temporary restraining order or a writ of declaration of its nullity. (37
preliminary injunction be issued enjoining Roberto from exercising SCRA 316, 326)
any act of administration and ownership over said properties; their
marriage be declared null and void and of no force and effect; and The above ruling which is of later
Delia Soledad be declared the sole and exclusive owner of all vintage deviated from the
properties acquired at the time of their void marriage and such previous rulings of the Supreme
properties be placed under the proper management and Court in the aforecited cases of
administration of the attorney-in-fact. Aragon and Mendoza.
Petitioner filed a Motion to Dismiss on the ground that the petition Finally, the contention of
stated no cause of action. The marriage being void ab initio, the respondent movant that
petition for the declaration of its nullity is, therefore, superfluous petitioner has no property in his
and unnecessary. It added that private respondent has no property possession is an issue that may
which is in his possession. be determined only after trial on
the merits.1
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order
denying the motion to dismiss for lack of merit. She explained: A motion for reconsideration was filed stressing the erroneous
application of Vda. de Consuegra v. GSIS2 and the absence of
Movant argues that a second marriage contracted justiciable controversy as to the nullity of the marriage. On
after a first marriage by a man with another September 11, 1991, Judge Austria denied the motion for
woman is illegal and void (citing the case of Yap v. reconsideration and gave petitioner fifteen (15) days from receipt
Court of Appeals, 145 SCRA 229) and no judicial within which to file his answer.
decree is necessary to establish the invalidity of a
void marriage (citing the cases of People v. Instead of filing the required answer, petitioner filed a special civil
Aragon, 100 Phil. 1033; People v. Mendoza, 95 action of certiorari and mandamus on the ground that the lower
Phil. 845). Indeed, under the Yap case there is no court acted with grave abuse of discretion amounting to lack of
dispute that the second marriage contracted by jurisdiction in denying the motion to dismiss.
respondent with herein petitioner after a first
marriage with another woman is illegal and void.
On February 7, 1992, the Court of Appeals3 dismissed the petition. It
However, as to whether or not the second explained that the case of Yap v. CA4 cited by petitioner and that
marriage should first be judicially declared a nullity of Consuegra v. GSIS relied upon by the lower court do not have
is not an issue in said case. In the case of Vda. de relevance in the case at bar, there being no identity of facts because
Consuegra v. GSIS, the Supreme Court ruled in these cases dealt with the successional rights of the second wife
explicit terms, thus: while the instant case prays for separation of property corollary
with the declaration of nullity of marriage. It observed that the
And with respect to the right of separation and subsequent distribution of the properties acquired
the second wife, this Court during the union can be had only upon proper determination of the
status of the marital relationship between said parties, whether or
not the validity of the first marriage is denied by petitioner.
Furthermore, in order to avoid duplication and multiplicity of suits,
the declaration of nullity of marriage may be invoked in this
proceeding together with the partition and distribution of the
properties involved. Citing Articles 48, 50 and 52 of the Family Code,
it held that private respondent's prayer for declaration of absolute
nullity of their marriage may be raised together with other incidents
of their marriage such as the separation of their properties. Lastly, it
noted that since the Court has jurisdiction, the alleged error in
refusing to grant the motion to dismiss is merely one of law for
which the remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision, reiterate
the issue on appeal. The motion for reconsideration was
subsequently denied for lack of merit.5
Hence, this petition.
The two basic issues confronting the Court in the instant case are
the following.
First, whether or not a petition for judicial declaration of a void
marriage is necessary. If in the affirmative, whether the same should
be filed only for purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of
private respondent to recover certain real and personal properties
allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon6 and People
v. Mendoza,7 contends that SP. No. 1989-J for Declaration of Nullity
of Marriage and Separation of Property filed by private respondent
must be dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40 of the
Family Code, he submits that a petition for declaration of absolute
nullity of marriage is required only for purposes of remarriage. Since
the petition in SP No. 1989-J contains no allegation of private
respondent's intention to remarry, said petition should therefore,
be dismissed.
On the other hand, private respondent insists on the necessity of a
judicial declaration of the nullity of their marriage, not for purposes
of remarriage, but in order to provide a basis for the separation and
distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private
respondent celebrated while the former's previous marriage with
one Emerlina de la Paz was still subsisting, is bigamous. As such, it is
from the beginning.8 Petitioner himself does not dispute the
absolute nullity of their marriage.9
The cases of People v. Aragon and People v. Mendoza relied upon by
petitioner are cases where the Court had earlier ruled that no
judicial decree is necessary to establish the invalidity of a void,
bigamous marriage. It is noteworthy to observe that Justice Alex
Reyes, however, dissented on these occasions stating that:
Though the logician may say that where the
former marriage was void there would be nothing
to dissolve, still it is not for the spouses to judge
whether that marriage was void or not. That
judgment is reserved to the courts. . . . 10
This dissenting opinion was adopted as the majority position in
subsequent cases involving the same issue. Thus, in Gomez
v. Lipana, 11 the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order
forfeiting the husband's share of the disputed property acquired
during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article
1417, there is need for a judicial declaration thereof, which of
course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de
Consuegra v. Government Service Insurance System, that "although
the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is
need for judicial declaration of such nullity."
In Tolentino v. Paras,12 however, the Court turned around and
applied the Aragon and Mendoza ruling once again. In granting the
prayer of the first wife asking for a declaration as the lawful
surviving spouse and the correction of the death certificate of her
deceased husband, it explained that "(t)he second marriage that he
contracted with private respondent during the lifetime of his first
spouse is null and void from the beginning and of no force and
effect. No judicial decree is necessary to establish the invalidity of a
void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the
Court reverted to the Consuegra case and held that there was "no
need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such
a marriage though void still needs according to this Court a judicial
declaration of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of
a marriage is now explicitly required either as a cause of action or a
ground for defense. 14 Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said projected
marriage be free from legal infirmity is a final judgment declaring
the previous marriage void. 15
The Family Law Revision Committee and the Civil Code Revision
Committee 16 which drafted what is now the Family Code of the
Philippines took the position that parties to a marriage should not
be allowed to assume that their marriage is void even if such be the
fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again. This is borne
out by the following minutes of the 152nd Joint Meeting of the Civil
Code and Family Law Committees where the present Article 40,
then Art. 39, was discussed.
B. Article 39. —
The absolute nullity of a
marriage may be invoked only
on the basis of a final judgment
declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision
should include not only void but also voidable
 marriages. He then suggested that the above
provision be modified as follows:
The validity of a marriage may
be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed
that they say:
The validity or invalidity of a
marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may
be invoked only . . .
Justice Caguioa explained that his idea is that one
cannot determine for himself whether or not his
marriage is valid and that a court action is needed.
Justice Puno accordingly proposed that the
provision be modified to read:
The invalidity of a marriage may
be invoked only on the basis of a
final judgment annulling the
marriage or declaring the
marriage void, except as
provided in Article 41.
Justice Caguioa remarked that in annulment, there
is no question. Justice Puno, however, pointed out
that, even if it is a judgment of annulment, they
still have to produce the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may
be invoked only on the basis of a
final judgment declaring the
marriage invalid, except as
provided in Article 41.
Justice Puno raised the question: When a marriage
is declared invalid, does it include the annulment
of a marriage and the declaration that the
marriage is void? Justice Caguioa replied in the
affirmative. Dean Gupit added that in some
judgments, even if the marriage is annulled, it is
declared void. Justice Puno suggested that this
matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the
provision is to require first a judicial declaration of
a void marriage and not annullable marriages,
with which the other members concurred. Judge
Diy added that annullable marriages are presumed
valid until a direct action is filed to annul it, which
the other members affirmed. Justice Puno
remarked that if this is so, then the phrase
"absolute nullity" can stand since it might result in
confusion if they change the phrase to "invalidity"
if what they are referring to in the provision is the
declaration that the marriage is void.
Prof. Bautista commented that they will be doing
away with collateral defense as well as collateral
attack. Justice Caguioa explained that the idea in
the provision is that there should be a final
judgment declaring the marriage void and a party
should not declare for himself whether or not the
marriage is void, while the other members
affirmed. Justice Caguioa added that they are,
therefore, trying to avoid a collateral attack on
that point. Prof. Bautista stated that there are
actions which are brought on the assumption that
the marriage is valid. He then asked: Are they
depriving one of the right to raise the defense that
he has no liability because the basis of the liability
is void? Prof. Bautista added that they cannot say
that there will be no judgment on the validity or
invalidity of the marriage because it will be taken
up in the same proceeding. It will not be a
unilateral declaration that, it is a void
marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the
provision to remarriage. He then proposed that
Article 39 be reworded as follows:
The absolute nullity of a
marriage for purposes of
remarriage may be invoked only
on the basis of final judgment . .
.
Justice Puno suggested that the above be modified
as follows:
The absolute nullity of a previous
marriage may be invoked for
purposes of establishing the
validity of a subsequent
marriage only on the basis of a
final judgment declaring such
previous marriage void, except
as provided in Article 41.
Justice Puno later modified the above as follows:
For the purpose of establishing
the validity of a subsequent
marriage, the absolute nullity of
a previous marriage may only be
invoked on the basis of a final
judgment declaring such nullity,
except as provided in Article 41.
Justice Caguioa commented that the above
provision is too broad and will not solve the
objection of Prof. Bautista. He proposed that they
say:
For the purpose of entering into
a subsequent marriage, the
absolute nullity of a previous
marriage may only be invoked
 on the basis of a final judgment
declaring such nullity, except as
provided in Article 41.
Justice Caguioa explained that the idea in the
above provision is that if one enters into a
subsequent marriage without obtaining a final
judgment declaring the nullity of a previous
marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno suggested
that they go back to the original wording of the
provision as follows:
The absolute nullity of a previous
marriage may be invoked for
purposes of remarriage only on
the basis of a final judgment
declaring such previous marriage
void, except as provided in
Article 41. 17
In fact, the requirement for a declaration of absolute nullity of a
marriage is also for the protection of the spouse who, believing that
his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy. 18
Just over a year ago, the Court made the pronouncement that there
is a necessity for a declaration of absolute nullity of a prior
subsisting marriage before contracting another in the recent case
of Terre v. Terre. 19 The Court, in turning down the defense of
respondent Terre who was charged with grossly immoral conduct
consisting of contracting a second marriage and living with another
woman other than complainant while his prior marriage with the
latter remained subsisting, said that "for purposes of determining
whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab
initio is essential."
As regards the necessity for a judicial declaration of absolute nullity
of marriage, petitioner submits that the same can be maintained
only if it is for the purpose of remarriage. Failure to allege this
purpose, according to petitioner's theory, will warrant dismissal of
the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void. (n)
Crucial to the proper interpretation of Article 40 is the position in
the provision of the word "solely." As it is placed, the same shows
that it is meant to qualify "final judgment declaring such previous
marriage void." Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee members, the
provision in question, as it finally emerged, did not state "The
absolute nullity of a previous marriage may be invoked solely for
purposes of remarriage . . .," in which case "solely" would clearly
qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have
been correct and, that is, that the absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage, thus
rendering irrelevant the clause "on the basis solely of a final
judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant clause
denotes that such final judgment declaring the previous marriage
void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party
might well invoke the absolute nullity of a previous marriage for
purposes other than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery of the
latters' presumptive legitimes. In such cases, evidence needs must
be adduced, testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an absolute nullity.
These need not be limited solely to an earlier final judgment of a
court declaring such previous marriage void. Hence, in the instance
where a party who has previously contracted a marriage which
remains subsisting desires to enter into another marriage which is
legally unassailable, he is required by law to prove that the previous
one was an absolute nullity. But this he may do on the basis solely of
a final judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words,
for purposes of remarriage, why should the only legally acceptable
basis for declaring a previous marriage an absolute nullity be a final
judgment declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as
an "inviolable social institution, is the foundation of the family;" as
such, it "shall be protected by the State."20 In more explicit terms,
the Family Code characterizes it as "a special contract of permanent
union between a man and a woman entered into in accordance with
law for the establishment of conjugal, and family life." 21 So crucial
are marriage and the family to the stability and peace of the nation
that their "nature, consequences, and incidents are governed by law
and not subject to stipulation . . ." 22 As a matter of policy, therefore,
the nullification of a marriage for the purpose of contracting
another cannot be accomplished merely on the basis of the
perception of both parties or of one that their union is so defective
with respect to the essential requisites of a contract of marriage as
to render it void ipso jure and with no legal effect — and nothing
more. Were this so, this inviolable social institution would be
reduced to a mockery and would rest on very shaky foundations
indeed. And the grounds for nullifying marriage would be as diverse
and far-ranging as human ingenuity and fancy could conceive. For
such a social significant institution, an official state pronouncement
through the courts, and nothing less, will satisfy the exacting norms
of society. Not only would such an open and public declaration by
the courts definitively confirm the nullity of the contract of
marriage, but the same would be easily verifiable through records
accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment
to a second sought to be contracted by one of the parties may be
gleaned from new information required in the Family Code to be
included in the application for a marriage license, viz, "If previously
married, how, when and where the previous marriage was dissolved
and annulled." 23
Reverting to the case before us, petitioner's interpretation of Art. 40
of the Family Code is, undoubtedly, quite restrictive. Thus, his
position that private respondent's failure to state in the petition
that the same is filed to enable her to remarry will result in the
dismissal of SP No. 1989-J is untenable. His misconstruction of Art.
40 resulting from the misplaced emphasis on the term "solely" was
in fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be
misconstrued to refer to "for purposes of
remarriage." Judge Diy stated that "only" refers to
"final judgment." Justice Puno suggested that they
say "on the basis only of a final judgment." Prof.
Baviera suggested that they use the legal term
"solely" instead of "only," which the Committee
approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute
nullity of marriage is unnecessary, petitioner suggests that private
respondent should have filed an ordinary civil action for the
recovery of the properties alleged to have been acquired during
their union. In such an eventuality, the lower court would not be
acting as a mere special court but would be clothed with jurisdiction
to rule on the issues of possession and ownership. In addition, he
pointed out that there is actually nothing to separate or partition as
the petition admits that all the properties were acquired with
private respondent's money.
The Court of Appeals disregarded this argument and concluded that
"the prayer for declaration of absolute nullity of marriage may be
raised together with the other incident of their marriage such as the
separation of their properties."
When a marriage is declared void ab initio, the law states that the
final judgment therein shall provide for "the liquidation, partition
and distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings." 25 Other specific effects flowing
therefrom, in proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property
or conjugal partnership property shall be forfeited
in favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or, in default of children, the
innocent spouse;
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who acted in bad
faith as a beneficiary in any insurance policy, even
if such designation be stipulated as irrevocable;
and
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession. (n)
Art. 44. If both spouses of the subsequent
marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of
marriage and testamentary disposition made by
one in favor of the other are revoked by operation
of law. (n) 26
Based on the foregoing provisions, private respondent's ultimate
prayer for separation of property will simply be one of the necessary
consequences of the judicial declaration of absolute nullity of their
marriage. Thus, petitioner's suggestion that in order for their
properties to be separated, an ordinary civil action has to be
instituted for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage, one of
which is the separation of property according to the regime of
property relations governing them. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is
brought is likewise clothed with jurisdiction to decide the incidental
questions regarding the couple's properties. Accordingly, the
respondent court committed no reversible error in finding that the
lower court committed no grave abuse of discretion in denying
petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of
respondent Court dated February 7, 1992 and the Resolution dated
March 20, 1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
VITUG, J., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida
Ruth P. Romero. I should like, however, to put in a modest
observation.
Void marriages are inexistent from the very beginning and, I believe,
no judicial decree is required to establish their nullity, except in the
following instances:
(a) For purposes of remarriage pursuant to the provision of Article
40 of the Family Code; viz.:
The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous
marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code
in case a party thereto was psychologically incapacitated to comply
with the essential marital obligations of marriage (Article 36, Family
Code), where an action or defense for the declaration of nullity
prescribes ten (10) years after the Family Code took effect (Article
39, Family Code); otherwise, the marriage is deemed unaffected by
the Family Code.
A void marriage, even without its being judicially declared a nullity,
albeit the preferability for, and justiciability (fully discussed in the
majority opinion) of, such a declaration, will not give it the status or
the consequences of a valid marriage, saving only specific instances
where certain effects of a valid marriage can still flow from the void
marriage. Examples of these cases are children of void marriages
under Article 36 (due to psychological incapacity) and Article 53, in
relation to Article 52 (due to failure of partition, delivery of
presumptive legitimes of children and recording thereof following
the annulment or declaration of nullity a prior marriage), conceived
or born before the judicial declaration of nullity of such void
marriages, who the law deems as legitimate (Article 54, Family
Code).

In most, if not in all, other cases, a void marriage is to be considered

extant per se. Neither the conjugal, partnership of gain under the
old regime nor the absolute community of property under the new
Code (absent a marriage settlement), will apply; instead, their
property relations shall be governed by the co-ownership rules
under either Article 147 or Article 148 of the Family Code. I must
hasten to add as a personal view, however, that the exceptional
effects on children of a void marriage because of the psychological
incapacity of a party thereto should have been extended to cover
even the personal and property relations of the spouses. Unlike the
other cases of void marriages where the grounds therefor may be
established by hard facts and with little uncertainty, the term
"psychological incapacity" is so relative and unsettling that until a
judicial declaration of nullity is made its interim effects can long and
literally hang on the balance not only insofar as the spouses
themselves are concerned but also as regards third persons with
whom the spouses deal.
 SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional
Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City,
and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to
annul (1) the Order of the respondent Judge, dated 10 December
1986, ordering petitioner to pay support pendente lite to private
respondent (his wife) and their child, and (2) the Order of the same
respondent Judge, dated 5 August 1987, denying petitioner's motion
to suspend hearings in the action for legal separation filed against
him by private respondent as well as his motion to inhibit
respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the Regional Trial Court of Misamis Oriental,
10th Judicial District, Branch 18, in Cagayan de Oro City, presided
over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for
support and payment of damages. This case was docketed as Civil
Case No. 10636. On 13 October 1986, private respondent also filed
with the Municipal Trial Court, General Santos City, a complaint
against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November
1986, application for the provisional remedy of support pendente
lite, pending a decision in the action for legal separation, was filed
by private respondent in the civil case for legal separation. The
respondent judge, as already stated, on 10 December 1986, ordered
The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal
separation and the incidents consequent thereto, such as,
application for support pendente lite, should be suspended in view
of the criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III.
Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. —
Whenever the offended party shall have
instituted the civil action to enforce the civil
liability arising from the offense. as contemplated
in the first Section 1 hereof, the following rules
shall be observed:
(a) After a criminal action has been commenced
the pending civil action arising from the same
offense shall be suspended, in whatever stage it
may be found, until final judgment in the criminal
proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on
concubinage, it is petitioner's position that such civil action arises
from, or is inextricably tied to the criminal action for concubinage,
so that all proceedings related to legal separation will have to be
suspended to await conviction or acquittal for concubinage in the
criminal case. Authority for this position is this Court's decision in
the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of
an action for legal separation would be proper if an allegation of
concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to
wit:
Sec. 1. Rules governing civil actions arising from
offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil
action for recovery of civil liability arising from the
offense charged is impliedly instituted with the
criminal action, unless the offended party
expressly waives the civil action or reserves his
right to institute it separately;
(b) Criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil
action 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.
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.

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
FIRST DIVISION
G.R. No. 106169 February 14, 1994
SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-
SABALONES, respondents.
Leven S. Puno for petitioner.
Benigno M. Puno for private respondent.
CRUZ, J.:
The subject of this petition is the preliminary injunction issued by
the respondent court pending resolution of a case on appeal. We
deal only with this matter and not the merits of the case.
As a member of our diplomatic service assigned to different
countries during his successive tours of duties, petitioner Samson T.
Sabalones left to his wife, herein respondent Remedios Gaviola-
Sabalones, the administration of some of their conjugal, properties
for fifteen years.
Sabalones retired as ambassador in 1985 and came back to the
Philippines but not to his wife and their children. Four years later, he
filed an action for judicial authorization to sell a building and lot
located at
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging
to the conjugal partnership. He claimed that he was sixty-eight years
old, very sick and living alone without any income, and that his
share of the proceeds of the sale to defray the prohibitive cost of his
hospitalization and medical treatment.
In her answer, the private respondent opposed the authorization
and filed a counterclaim for legal separation. She alleged that the
house in Greenhills was being occupied by her and their six children
and that they were depending for their support on the rentals from
another conjugal property, a building and lot in Forbes Park which
was on lease to Nobumichi Izumi. She also informed the court that
despite her husband's retirement, he had not returned to his
legitimate family and was instead maintaining a separate residence
in Don Antonio Heights, Fairview, Quezon City, with Thelma
Cumareng and their three children.
In her prayer, she asked the court to grant the decree of legal
separation and order the liquidation of their conjugal properties,
with forfeiture of her husband's share therein because of his
adultery. She also prayed that it enjoin the petitioner and his agents
from a) disturbing the occupants of the Forbes Park property and b)
disposing of or encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the petitioner had
indeed contracted a bigamous marriage on October 5, 1981, with
Thelma Cumareng, to whom he had returned upon his retirement in
1985 at a separate residence. The court thus decreed the legal
separation of the spouses and the forfeiture of the petitioner's
share in the conjugal properties, declaring as well that he was not
entitled to support from his respondent wife.1
This decision was appealed to the respondent court. Pendente lite,
the respondent wife filed a motion for the issuance of a writ of
preliminary injunction to enjoin the petitioner from interfering with
the administration of their properties in Greenhills and Forbes Park.
She alleged inter alia that he had harassed the tenant of the Forbes
Park property by informing him that his lease would not be
renewed. She also complained that the petitioner had disposed of
one of their valuable conjugal properties in the United States in
favor of his paramour, to the prejudice of his legitimate wife and
children.
The petitioner opposed this motion and filed his own motion to
prevent his wife from entering into a new contract of lease over the
Forbes Park property with its present tenant, or with future tenants,
without his consent.
After hearing, the Court of Appeals, in an order dated April 7, 1992,
granted the preliminary injunction prayed for by his wife. 2
The petitioner now assails this order, arguing that since the law
provides for a joint administration of the conjugal properties by the
husband and wife, no injunctive relief can be issued against one or
the other because no right will be violated. In support of this
contention, he cites Art. 124 of the Family Code, reading as follows:
Art. 124. The administration and enjoyment of the
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to
recourse to the court by the wife for proper
remedy, which must be availed of within five years
from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the conjugal properties, the
other spouse may assume sole powers of the
administration. These powers do not include
disposition or encumbrance without authority of
the court or the written consent of the other
spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed
and the third person, and may be perfected as a
binding contract upon the acceptance by the other
spouse or the authorization by the court before
the offer is withdrawn by either or both offerors.
He further notes that the respondent court failed to appoint an
administrator of the conjugal assets as mandated by Art. 61 of the
Code, thus:
Art. 61 After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of
them or a third person to administer the absolute
community or conjugal partnership property. The
administrator appointed by the court shall have
the same powers and duties as those of a guardian
under the Rules of Court.
The Court has carefully considered the issues and the arguments of
the parties and finds that the petition has no merit.
We agree with the respondent court that pending the appointment
of an administrator over the whole mass of conjugal assets, the
respondent court was justified in allowing the wife to continue with
her administration. It was also correct, taking into account the
evidence adduced at the hearing, in enjoining the petitioner from
interfering with his wife's administration pending resolution of the
appeal.
The law does indeed grant to the spouses joint administration over
the conjugal properties as clearly provided in the above-cited Article
124 of the Family Code. However, Article 61, also above quoted,
states that after a petition for legal separation has been filed, the
trial court shall, in the absence of a written agreement between the
couple, appoint either one of the spouses or a third person to act as
the administrator.
While it is true that no formal designation of the administrator has
been made, such designation was implicit in the decision of the trial
court denying the petitioner any share in the conjugal properties
(and thus also disqualifying him as administrator thereof). That
designation was in effect approved by the Court of Appeals when it
issued in favor of the respondent wife the preliminary injunction
now under challenge.
The primary purpose of the provisional remedy of injunction is to
preserve the status quo of the things subject of the action or the
relations between the parties and thus protect the rights of the
plaintiff respecting these matters during the pendency of the suit.
Otherwise, the defendant may, before final judgment, do or
continue doing the act which the plaintiff asks the court to restrain
and thus make ineffectual the final judgment that may be rendered
afterwards in favor of the plaintiff.3
As observed by Francisco, "Injunction is primarily a preventive
remedy. Its province is to afford relief against future acts which are
against equity and good conscience and to keep and preserve the
thing in the status quo, rather than to remedy what is past or to
punish for wrongful acts already committed. It may issue to prevent
future wrongs although no right has yet been violated." 4
The Court notes that the wife has been administering the subject
properties for almost nineteen years now, apparently without
complaint on the part of the petitioner. He has not alleged, much
less shown, that her administration has caused prejudice to the WHEREFORE, the petition is DENIED for lack of merit. It is so ordered
conjugal partnership. What he merely suggests is that the lease of
the Forbes Park property could be renewed on better terms, or he
should at least be given his share of the rentals.
In her motion for the issuance of a preliminary injunction, the
respondent wife alleged that the petitioner's harassment of their
tenant at Forbes Park
would jeopardize the lease and deprive her and her children of the
income therefrom on which they depend for their subsistence. She
also testified the numerous . . . including various dollar accounts,
two houses in Quezon City and Cebu City, and a Mercedes Benz. The
private respondent also complained that on June 10, 1991, the
petitioner executed a quitclaim over their conjugal property in
Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma
Cumareng, to improve his paramour's luxurious lifestyle to the
prejudice of his legitimate family.
These allegations, none of which was refuted by the husband, show
that the injunction is necessary to protect the interests of the
private respondent and her children and prevent the dissipation of
the conjugal assets.
The twin requirements of a valid injunction are the existence of a
right and its actual or threatened violation.5Regardless of the
outcome of the appeal, it cannot be denied that as the petitioner's
legitimate wife (and the complainant and injured spouse in the
action for legal separation), the private respondent has a right to a
share (if not the whole) of the conjugal estate. There is also, in our
view, enough evidence to raise the apprehension that entrusting
said estate to the petitioner may result in its improvident disposition
to the detriment of his wife and children. We agree that inasmuch
as the trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would be prudent
not to allow him in the meantime to participate in its management.
Let it be stressed that the injunction has not permanently installed
the respondent wife as the administrator of the whole mass of
conjugal assets. It has merely allowed her to continue administering
the properties in the meantime without interference from the
petitioner, pending the express designation of the administrator in
accordance with Article 61 of the Family Code.
 EN BANC
G.R. No. L-34132 July 29, 1972
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.

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41

Phil. 13, 24.
FIRST DIVISION
G.R. No. 153206 October 23, 2006
ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,
vs.
LUCITA G. ONG, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review seeking the reversal of the
Decision1 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 petitioner’s 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 Code4before 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 William’s
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 sister’s 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 parent’s 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 plaintiff’s 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. Elinzano’s
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 doctor’s
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 don’t 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 x11
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 RESPONDENT’S FAMILY.
II
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW
IN DISREGARDING CLEAR EVIDENCE REPUDIATING PRIVATE
RESPONDENT’S 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 (William’s) sole efforts;
the only parties who will benefit from a decree of legal separation
are Lucita’s 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, Lucita’s 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 parent’s
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 Lucita’s 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 petitioner’s
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 petitioner’s 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:
William’s 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 witness’s testimony as biased and unworthy of credence 37 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 child-abuser 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 Lucita’s 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.42With 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.

EN BANC
G.R. No. L-10033 December 28, 1956
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 plaintiff-husband.
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 plaintiff-husband 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
plaintiff-appellant; 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.

SECOND DIVISION
G.R. No. 196842 October 9, 2013
ALFREDO ROMULO A. BUSUEGO, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S.
BUSUEGO, Respondents.
DECISION
PEREZ, J.:
Before us is a petition for certiorari seeking to annul and set aside
the Resolution of the Ombudsman dated 17 April 2009 1 and Order
dated October 2010,2 which directed the tiling of an Information for
Concubinage under Article 334 of the Revised Penal Code against
petitioner Alfredo Romulo A. Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2)
violation of Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under Article 282 of the
Revised Penal Code, before the Office of the Ombudsman against
her husband, Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption
Church, Davao City. Their union was blessed with two (2) sons,
Alfred and Robert, born in 1976 and 1978, respectively. Sometime in
1983, their marriage turned sour. At this time, Rosa unearthed
photographs of, and love letters addressed to Alfredo from, other
women. Rosa confronted Alfredo who claimed ignorance of the
existence of these letters and innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with
his family. He would come home late at night on weekdays and
head early to work the next day; his weekends were spent with his
friends, instead of with his family. Rosa considered herself lucky if
their family was able to spend a solid hour with Alfredo.
Around this time, an opportunity to work as nurse in New York City,
United States of America (US) opened up for Rosa. Rosa informed
Alfredo, who vehemently opposed Rosa’s plan to work abroad.
Nonetheless, Rosa completed the necessary requirements to work
in the US and was scheduled to depart the Philippines in March
1985.
Before leaving, Rosa took up the matter again with Alfredo, who
remained opposed to her working abroad. Furious with Rosa’s
pressing, Alfredo took his loaded gun and pointed it at Rosa’s right
temple, threatening and taunting Rosa to attempt to leave him and
their family. Alfredo was only staved off because Rosa’s mother
arrived at the couple’s house. Alfredo left the house in a rage: Rosa
and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the
US. While in the US, Rosa became homesick and was subsequently
joined by her children who were brought to the US by Alfredo. Rosa
singularly reared them: Alfred, from grade school to university,
while Robert, upon finishing high school, went back to Davao City to
study medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent
financial support. In fact, it was Rosa who would remit money to
Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao
City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was
living at their conjugal home. When Rosa asked Alfredo, the latter
explained that Sia was a nurse working at the Regional Hospital in
Tagum who was in a sorry plight as she was allegedly being raped by
Rosa’s brother-in-law. To get her out of the situation, Alfredo
allowed Sia to live in their house and sleep in the maids’ quarters. At
that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredo’s extra-marital
relationships. Robert, who was already living in Davao City, called
Rosa to complain of Alfredo’s illicit affairs and shabby treatment of
him. Rosa then rang up Alfredo which, not surprisingly, resulted in
an altercation. Robert executed an affidavit, corroborating his
mother’s story and confirming his father’s illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert
found it strange that Sia slept with his father in the
conjugal bedroom.
2. He did not inform his mother of that odd arrangement as
he did not want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was
Alfredo’s mistress.
4. During this period of concubinage, Sia was hospitalized
and upon her discharge, she and Alfredo resumed their
cohabitation.
5. The relationship between Alfredo and Sia ended only
when the latter found another boyfriend. 6. His father next
took up an affair with Julie de Leon (de Leon) whom Robert
met when de Leon fetched Alfredo on one occasion when
their vehicle broke down in the middle of the road.
7. Robert read various Short Message Service (SMS)
exchanges between Julie and Alfredo on Alfredo’s mobile
phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in
Rosa’s and Alfredo’s conjugal dwelling and stayed in the
conjugal room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan,
likewise executed a joint affidavit in support of Rosa’s allegations:
1. They had seen Sia sleep and stay overnight with Alfredo
in the conjugal bedroom.
 2. Sia herself, who called Alfredo "Papa," confirmed the
two’s sexual relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in
the conjugal dwelling and slept overnight with Alfredo in
the conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao
City without informing Alfredo of their impending return. Upon
Rosa’s return, she gathered and consolidated information on her
husband’s sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and
Grave Threats, Rosa averred that during the course of their
marriage, apart from the marital infidelity, Alfredo physically and
verbally abused her and her family. On one occasion after Rosa
confirmed the affairs, Alfredo threatened their family, including
other members of their household that he will gun them down
should he chance upon them in Tagum City. Lastly, on 22 March
2006, Alfredo purportedly dismissed house helper Liza Diambangan
and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations
against him and alleged that:
1. Rosa, despite his pleas for them to remain and raise their
family in the Philippines, chose to live in the US, separate
from him.
2. Rosa’s allegations that he had kept photographs of, and
love letters from, other women, were only made to create
a cause of action for the suit for Legal Separation which
Rosa filed sometime in 1998.
3. It was highly improbable that he committed acts of
concubinage with Sia and de Leon since from the time he
became Chief of Hospital of the Davao Regional Hospital in
Tagum City, he practically stayed all days of the work week
in the hospital. The instances he went home were few and
far between, only to check on the house and provide for
household expenses.
4. When Robert returned to Davao City and lived with him,
it became more impossible for him to have shacked up with
Sia and de Leon in the conjugal dwelling.
5. With respect to his alleged relationship with Sia, without
admitting to anything, that Sia, for a time, may have lived
in his and Rosa’s conjugal house, staying at the maids’
quarters. However, at no instance did he keep Sia as his
mistress in the conjugal dwelling.
6. As regards the dates of December 23, 24, 30 and 31,
2004 when he supposedly stayed with de Leon in the
conjugal room, Alfredo pointed out that said dates were
busiest days of the year in the hospital where his presence
as Chief of Hospital is most required.
7. By Rosa’s own admission, she first learned of Alfredo’s
alleged concubinage in 1997, and yet she still continued
with her yearly visits to Alfredo in Davao City. Those
instances ought to be construed as condonation of the
concubinage.
8. Significantly, the alleged concubines, Sia and de Leon,
were not impleaded along with Alfredo as party-
respondents in the complaint in violation of Article 344 of
the Revised Penal Code.
Alfredo made short shrift of Rosa’s charges of violation of Republic
Act No. 9262 and Grave Threats. He claimed that, at no time, did he
threaten, the lives or, to harm his wife, their family and members of
their household. He only berated the help for perpetrating gossip
about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa
maintained Alfredo’s culpability, and naturally, Alfredo claimed
innocence.
In the course thereof, the procedural issue of Rosa’s failure to
implead Sia and de Leon as respondents cropped up. Alfredo
insisted that Rosa’s complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a
clarificatory hearing where both Rosa and Alfredo were represented
by their respective counsels:
x x x Rosa was apprised of the need to implead the two alleged
mistresses in the complaint for Concubinage pursuant to Article 344
of the Revised Penal Code. Although Alfredo objected to the
amendment of the complaint, at this point in time, due to the
alleged procedural lapse committed by Rosa, this Office explained to
the parties that the position of Alfredo would just prolong the
conduct of the preliminary investigation since Rosa can just re-file
her complaint. The doctrine of res judicata does not apply in the
preliminary investigation stage. Hence, the counsel for Rosa was
directed to submit to this Office the addresses of the alleged
mistresses so that they could be served with the Order directing
them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known
addresses of Julie de Leon and Emy Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading
Sia and de Leon as party-respondents in the complaint for
Concubinage and directing them to submit their respective counter-
affidavits within a period of time. Copies of the Joint Order were
mailed to Sia’s and de Leon’s last known addresses, as provided by
Rosa to the Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a
copy of the Joint Order sent to Sia’s last known address was
returned to the Ombudsman with the notation on the Registry
Return Receipt No. 1624 "Return to Sender; removed," while a copy
thereof to de Leon was received on 3 September 2008 by Ananias
de Leon.5
Apparently still opposed to the Ombudsman’s ruling to simply
amend the complaint and implead therein Alfredo’s alleged
mistresses, Alfredo filed his Comment to the 24 June 2008 Order
with Motion to Dismiss and/or Refer the charges to the Appropriate
Provincial/City Prosecutor6 praying for dismissal of the complaint
for: (1) failure to implead the two mistresses in violation of Article
344 of the Revised Penal Code; and in the alternative, (2) referral of
the complaint to the Office of the City Prosecutor as provided in
OMB-DOJ Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed
Resolution, disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an
urgent need to resolve the ancillary issues raised by petitioner Dr.
Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory
pleading by resorting to a procedural short cut which would result
to the delay in the disposition of this case; and 2.) the criminal
charges imputed are not in relation to office, hence, the Office of
the Provincial/City Prosecutor shall investigate and prosecute this
case pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already
pointed out in his counter-Affidavit the alleged deficiency in the
complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She
averred that this Office is empowered to investigate and prosecute
any act or omission of a public official or employee to the exclusion
of non-government employees. She stated that the inclusion of the
alleged concubines in the Information to be filed in court is a matter
of procedure, within the competence of the investigating
prosecutor.
In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short cut
procedure would delay the proceedings is misplaced. If the case will
be dismissed based on procedural infirmity, Rosa could still amend
her complaint and re-file this case since the doctrine of res judicata
does not apply in the preliminary investigation stage of the
proceedings.
On the second issue, the motion of Busuego to refer this case to the
Office of the City Prosecutor was belatedly filed. Record would show
that the motion praying for the referral of this case to the Office of
the City Prosecutor was filed on 17 July 2008, after the parties have
already filed all their pleadings and the case is now ripe for
resolution. Further, referral to the said office is not mandatory as
cited in the said Joint Circular.7
In the same Resolution, the Ombudsman, ultimately, found
probable cause to indict only Alfredo and Sia of Concubinage and
directed the filing of an Information against them in the appropriate
court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie
case for violation of Article 334 of the Revised Penal Code
(concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y
ABRIO, and EMY SIA, are probably guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y
Abrio and Julie de Leon; 2.) Grave Threats against Alfredo Romulo y
Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women
and Children Act), are hereby DISMISSED for lack of merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the
Ombudsman’s ruling on the automatic inclusion of Sia as
respondent in the complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosa’s complaint should have,
at the outset, impleaded his alleged concubines. Failing such, the
Ombudsman cannot resort to automatic inclusion of party-
respondents, erroneously finding him and Sia prima facie culpable
for Concubinage. For good measure, Alfredo pointed out that from
Rosa’s own allegations, she had condoned or pardoned Alfredo’s
supposed concubinage. Alfredo likewise submitted Liza S.
Diambangan’s affidavit, recanting her previous affidavit
corroborating Rosa’s charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that
the Partial Motion for Reconsideration was filed out of time, and
gave scant attention to Liza S. Diambangan’s affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for
Reconsideration is hereby DENIED. The findings in the questioned
Resolution hereby remains undisturbed. Let the Information for
Concubinage be filed in the proper court against herein Busuego.9
Alfredo now comes to us on petition for certiorari alleging grave
abuse of discretion in the Ombudsman’s finding of probable cause
to indict him and Sia for Concubinage. Alfredo’s badges of grave
abuse of discretion are the following:
1. The Ombudsman railroaded the inclusion of Sia and de
Leon as party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the
Department of Justice, considering that the offense of
Concubinage is not committed in relation to his office as
Chief of Hospital;
3. The Ombudsman glossed over Rosa’s condonation of
Alfredo’s supposed Concubinage when she alleged in the
complaint that she had known of Alfredo’s womanizing and
believed him to have changed his ways;
4. The Ombudsman did not take into consideration the
affidavit of recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo
and Sia for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the
determination of probable cause during a preliminary
investigation.10 This is the reason why judicial review of the
resolution of the Ombudsman in the exercise of its power and duty
to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction.
Courts are not empowered to substitute their judgment for that of
the Ombudsman.11
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment tantamount to lack of jurisdiction. 12 The abuse
of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.13 In this regard, petitioner failed to
demonstrate the Ombudsman's abuse, much less grave abuse, of
discretion.
First. Alfredo insists that the Ombudsman’s automatic inclusion,
over his vehement objections of Sia and de Leon as party-
respondents, violates Article 344 of the Revised Penal Code and
Section 5, Rule 110 of the Rules of Court, which respectively
provide:
Art. 344. 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.
Section 5. Who must prosecute criminal action. – xxx.
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 the
guilty parties, if both are alive, nor, in any case, if the offended party
has consented to the offense or pardoned the offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman
merely followed the provisions of its Rules of Procedure. Thus:
Rule
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation – Upon evaluating the complaint, the
investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency
which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-
finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure – The preliminary investigation of cases falling
under the jurisdiction of the Sandiganbayan and Regional Trial
Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:
a) x x x
b) After such affidavits have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting evidence
with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.
c) If the respondents does not file a counter-affidavit, the
investigating officer may consider the comment filed by
him, if any, as his answer to the complaint. In any event,
II the respondent shall have access to the evidence on
record.
d) No motion to dismiss shall be allowed except for lack of
jurisdiction.
Neither may a motion for a bill of particulars be
entertained.
If respondent desires any matter in the complainant’s
affidavit to be clarified, the particularization thereof may
be done at the time of the clarificatory questioning in the
manner provided in paragraph (f) of this section.
e) If the respondents cannot be served with the order
mentioned in paragraph 6 hereof, or having been served,
does not comply therewith, the complaint shall be deemed
submitted for resolution on the basis of the evidence on
the record.
f) If, after the filing of the requisite affidavits and their
supporting evidences, there are facts material to the case
which the investigating officer may need to be clarified on,
he may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be present but
without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions
desired to be asked by the investigating officer or a party
shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in
writing and under oath.
g) Upon the termination of the preliminary investigation,
the investigating officer shall forward the records of the
case together with his resolution to the designated
authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed
without the written authority or approval of the ombudsman in
cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases. (Emphasis supplied).
Notably, Rosa’s complaint contained not just the Concubinage
charge, but other charges: violation of Republic Act No. 9262 and
Grave Threats. Upon the Ombudsman’s perusal, the complaint was
supported by affidavits corroborating Rosa’s accusations. Thus, at
that stage, the Ombudsman properly referred the complaint to
Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory
hearing to discuss the applicability of Article 344 of the Revised
Penal Code, the issue having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to
respondent for comment and thereafter the holding of a
clarificatory hearing is provided for in paragraph b, Section 2 and
paragraphs d and f, Section 4 of Rule II, which we have at the outset
underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the
parties, the clarificatory hearing was conducted. It was explained in
the said hearing the need to implead the alleged concubines in this
case pursuant to Article 344 of the Revised Penal Code and to
obviate the proceedings, Rosa was directed to submit the addresses
of the alleged concubines. Busuego’s position that the said short cut
procedure would delay the proceedings is misplaced. If the case will
be dismissed based on procedural infirmity, Rosa could still amend
her complaint and re-file this case since the doctrine of res judicata
does not apply in the preliminary investigation stage of the
proceedings.14
The Ombudsman merely facilitated the amendment of the
complaint to cure the defect pointed out by Alfredo. We agree with
the Ombudsman that it would be superfluous to dismiss the
complaint when amendment thereof is allowed by its Rules of
Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred
Rosa’s complaint to the Department of Justice (DOJ), since the crime
of Concubinage is not committed in relation to his being a public
officer. This is not a new argument.
The Ombudsman’s primary jurisdiction, albeit concurrent with the
DOJ, to conduct preliminary investigation of crimes involving public
officers, without regard to its commission in relation to office, had
long been settled in Sen. Honasan II v. The Panel of Investigating
Prosecutors of DOJ,17 and affirmed in subsequent cases:
The Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the
Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the
Ombudsman, in the exercise of its primary jurisdiction over cases
cognizable by the Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the investigation of
such cases.
In other words, respondent DOJ Panel is not precluded from
conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the
exclusive jurisdiction of the Sandiganbayan, the respondent
Ombudsman may, in the exercise of its primary jurisdiction take
over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and
the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their
respective prosecutors in the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO.
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE
OFFICE OF THE OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE
PROSECUTORS ANDPROSECUTING ATTORNEYS OF THE
DEPARTMENT OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS
AND EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION,
PREPARATION OFRESOLUTIONS AND INFORMATIONS AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS
AND THEIR ASSISTANTS.
x---------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and
the DEPARTMENT OF JUSTICE, discussion centered around the latest
pronouncement of the SUPREME COURT on the extent to which the
OMBUDSMAN may call upon the government prosecutors for
assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do
so. Also discussed was Republic Act No. 7975 otherwise known as
"AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its
implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be
caused by discussions on jurisdiction between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural
conflicts in the filing of complaints against public officers and
employees, the conduct of preliminary investigations, the
preparation of resolutions and informations, and the prosecution of
cases by provincial and city prosecutors and their assistants as
DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the
DEPARTMENT OF JUSTICE, in a series of consultations, have agreed
95-001 on the following guidelines to be observed in the investigation and
prosecution of cases against public officers and employees:
1. Preliminary investigation and prosecution of offenses
committed by public officers and employees IN RELATION
TO OFFICE whether cognizable by the SANDIGANBAYAN or
the REGULAR COURTS, and whether filed with the OFFICE
OF THE OMBUDSMAN or with the OFFICE OF THE
PROVINCIAL/CITY PROSECUTOR shall be under the control
and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional
mandate finds reason to believe otherwise, offenses NOT
IN RELATION TO OFFICE and cognizable by the REGULAR
COURTS shall be investigated and prosecuted by the OFFICE
OF THE PROVINCIAL/CITY PROSECUTOR, which shall rule
thereon with finality.
3. Preparation of criminal information shall be the
responsibility of the investigating officer who conducted
the preliminary investigation. Resolutions recommending
prosecution together with the duly accomplished criminal
informations shall be forwarded to the appropriate
approving authority.
 4. Considering that the OFFICE OF THE OMBUDSMAN has
jurisdiction over public officers and employees and for
effective monitoring of all investigations and prosecutions
of cases involving public officers and employees, the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall submit
to the OFFICE OF THE OMBUDSMAN a monthly list of
complaints filed with their respective offices against public
officers and employees.
xxxx
A close examination of the circular supports the view of the
respondent Ombudsman that it is just an internal agreement
between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, effective December 1, 2000,
to wit:
SEC. 2. Officers authorized to conduct preliminary investigations –
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all
crimes cognizable by the proper court in their respective territorial
jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial,
he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his
witnesses; that there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties
of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of
the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the Secretary
of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the
parties. The same Rule shall apply in preliminary investigations
conducted by the officers of the Office of the Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary
investigation of criminal complaints filed with them for offenses
cognizable by the proper court within their respective territorial
jurisdictions, including those offenses which come within the
original jurisdiction of the Sandiganbayan; but with the qualification
that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation,
transmit the records and their resolutions to the Ombudsman or his
deputy for appropriate action. Also, the prosecutor cannot dismiss
the complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor file an
Information with the Sandiganbayan without being deputized by,
and without prior written authority of the Ombudsman or his
deputy.
xxxx
To reiterate for emphasis, the power to investigate or conduct
preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial
or city prosecutor or their assistants, either in their regular
capacities or as deputized Ombudsman prosecutors. The fact that all
prosecutors are in effect deputized Ombudsman prosecutors under
the OMB-DOJ circular is a mere superfluity. The DOJ Panel need not
be authorized nor deputized by the Ombudsman to conduct the
preliminary investigation for complaints filed with it because the
DOJ’s authority to act as the principal law agency of the government
and investigate the commission of crimes under the Revised Penal
Code is derived from the Revised Administrative Code which had
been held in the Natividad case citation omitted as not being
contrary to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an agency
which has the jurisdiction to do so in the first place. However, the
Ombudsman may assert its primary jurisdiction at any stage of the
investigation. (Emphasis supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a
public officer who was charged with coup d’etat for the occupation
of Oakwood on 27 July 2003, the preliminary investigation therefor
was conducted by the DOJ. Honasan questioned the jurisdiction of
the DOJ to do so, proferring that it was the Ombudsman which had
jurisdiction since the imputed acts were committed in relation to his
public office. We clarified that the DOJ and the Ombudsman have
concurrent jurisdiction to investigate offenses involving public
officers or employees. Nonetheless, we pointed out that the
Ombudsman, in the exercise of its primary jurisdiction over cases
cognizable by the Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the investigation of
such cases. Plainly, applying that ruling in this case, the Ombudsman
has primary jurisdiction, albeit concurrent with the DOJ, over Rosa’s
complaint, and after choosing to exercise such jurisdiction, need not
defer to the dictates of a respondent in a complaint, such as Alfredo.
In other words, the Ombudsman may exercise jurisdiction to the
exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage,
having admitted to knowing of his womanizing and yet continuing
with their relationship as demonstrated in Rosa’s annual visits to
him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of
whether the wife condoned the concubinage lies in the wife’s "line
of conduct under the assumption that she really believed [her
husband] guilty of concubinage:"
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.’
xxxx
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 necessarily 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).18
Although the foregoing speaks of condonation of concubinage as a
ground for legal separation, the holding therein applies with equal
force in a prosecution for concubinage as a felony. Indeed, Rosa’s
admission was that she believed her husband had stopped
womanizing, not that she had knowledge of Alfredo’s specific acts of
concubinage with Sia and de Leon, specifically keeping them in the
conjugal dwelling. This admission set against the specific acts of
concubinage listed in Article 33419 of the Revised Penal Code does
not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosa’s annual visits to Davao City
is not acquiescence to Alfredo’s relations with his concubines. On
that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon
or condonation. It is true that the offended party has to a
considerable extent been patient with her husband's shortcomings,
but that seems to have been due to his promises of improvement;
nowhere does it appear that she has consented to her husband's
immorality or that she has acquiesced in his relations with his
concubine.20
Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of
recantation to eliminate his probable culpability for concubinage.
Again, we are not swayed by Alfredo’s asseverations.
We have generally looked with disfavor upon retraction of
testimonies previously given in court. Affidavits of recantation are
unreliable and deserve scant consideration. The asserted motives
for the repudiation are commonly held suspect, and the veracity of
the statements made in the affidavit of repudiation are frequently
and deservedly subject to serious doubt.21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false
and that what he now says is true, is not sufficient ground for
concluding that the previous testimony is false. No such reasoning
has ever crystallized into a rule of credibility. The rule is that a
witness may be impeached by a previous contradictory statement x
x x not that a previous statement is presumed to be false merely
because a witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e., that
contradictory testimony given subsequently does not necessarily
discredit the previous testimony if the contradictions are
satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has
been solemnly taken before a court of justice in an open and free
trial and under conditions precisely sought to discourage and
forestall falsehood simply because one of the witnesses who had
given the testimony later on changed his mind. Such a rule will make
solemn trials a mockery and place the investigation of the truth at
the mercy of unscrupulous witnesses. Unless there be special
circumstances which, coupled with the retraction of the witness,
really raise doubt as to the truth of the testimony given by him at
the trial and accepted by the trial judge, and only if such testimony
is essential to the judgment of conviction, or its elimination would
lead the trial judge to a different conclusion, an acquittal of the
accused based on such a retraction would not be justified.22
In this case, Liza S. Diambangan’s testimony merely corroborates the
still standing story of Robert and Melissa Diambangan, the other
helper in the Busuego household. Clearly, the two’s consistent story
may still be the basis of the Ombudsman’s finding of a prima facie
case of concubinage against Alfredo and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is
simply no basis for indicting him and Sia for concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of
concubinage by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual
intercourse, under scandalous circumstances, with a woman who is
not his wife; and (3) cohabiting with a woman who is not his wife in
any other place.
The Ombudsman found a prima facie case against Alfredo and Sia
based on the testimony of Robert, Melissa S. Diambangan and Liza
S. Diambangan that Alfredo had kept Sia in the conjugal dwelling
where Sia even stayed at the conjugal room. We completely agree SO ORDERED.
with the Ombudsman’s disquisition:
x x x. It is ingrained in human behavior that a child has love, respect
and loyalty to his family and would strive to keep the family
harmonious and united. This is the very reason why Robert did not
inform his mother about his father’s infidelities during the time
when his father was keeping his mistress at the conjugal dwelling. A
son would never turn against his father by fabricating such a serious
story which will cause his home to crumble, if such is not true. His
natural instinct is to protect his home, which he did when he kept
silent for a long time. What broke the camel’s back was the abusive
treatment he allegedly suffered and the thought that things would
change for the better if his mom would intervene.
The story of Robert in his Affidavit was reinforced by the two house
helpers Melissa S. Diambangan and Liza S. Diambangan, who were
employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but
returned in 2006.1âwphi1 Liza started working with the family in
2002. Melissa revealed that it was Emy Sia who recruited her to
work with the Busuego family. They both attested to the fact that
Alfredo and Emy Sia slept together in the bedroom of Alfredo but
Emy Sia would sleep in the maid’s quarter when Rosa and Alfred
came home for a visit in 1997. They recalled that Emy Sia calls
Alfredo "papa". They narrated that Emy Sia would even confide to
them some private matters relating to her sexual proclivities with
Alfredo.23
We further note that the presence of Sia at the Busuego household
and her interim residence thereat was not disputed nor explained.
Alfredo just cavalierly declares that Sia may have stayed in the
conjugal dwelling, but never as his mistress, and Sia supposedly
slept in the maids’ quarters.
While such a claim is not necessarily preposterous we hold that such
is a matter of defense which Alfredo should raise in court given that
Rosa s complaint and its accompanying affidavits have created a
prima facie case for Concubinage against Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the
Ombudsman dated 17 April 2009 and 11 October 2010 are
AFFIRMED.

EN BANC
G.R. No. L-30977 January 31, 1972
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 petitioner-appellant.
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

SECOND DIVISION
G.R. No. 169900 March 18, 2010
MARIO SIOCHI, Petitioner,
vs.
ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE, INTER-
DIMENSIONAL REALTY, INC., and ELVIRA GOZON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 169977
INTER-DIMENSIONAL REALTY, INC., Petitioner,
vs.
MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, and WINIFRED
GOZON, Respondents.
RESOLUTION
CARPIO, J.:
This is a consolidation of two separate petitions for
review,1 assailing the 7 July 2005 Decision 2 and the 30 September
2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 74447.
This case involves a 30,000 sq.m. parcel of land (property) covered
by TCT No. 5357.4 The property is situated in Malabon, Metro
Manila and is registered in the name of "Alfredo Gozon (Alfredo),
married to Elvira Gozon (Elvira)."
On 23 December 1991, Elvira filed with the Cavite City Regional Trial
Court (Cavite RTC) a petition for legal separation against her
husband Alfredo. On 2 January 1992, Elvira filed a notice of lis
pendens, which was then annotated on TCT No. 5357.
On 31 August 1993, while the legal separation case was still
pending, Alfredo and Mario Siochi (Mario) entered into an
Agreement to Buy and Sell5 (Agreement) involving the property for
the price of ₱18 million. Among the stipulations in the Agreement
were that Alfredo would: (1) secure an Affidavit from Elvira that the
property is Alfredo’s exclusive property and to annotate the
Agreement at the back of TCT No. 5357; (2) secure the approval of
the Cavite RTC to exclude the property from the legal separation
case; and (3) secure the removal of the notice of lis
pendens pertaining to the said case and annotated on TCT No. 5357.
However, despite repeated demands from Mario, Alfredo failed to
comply with these stipulations. After paying the ₱5 million earnest
money as partial payment of the purchase price, Mario took
possession of the property in September 1993. On 6 September
1993, the Agreement was annotated on TCT No. 5357.
Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision 6 in
the legal separation case, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered decreeing the legal
separation between petitioner and respondent. Accordingly,
petitioner Elvira Robles Gozon is entitled to live separately from
respondent Alfredo Gozon without dissolution of their marriage
bond. The conjugal partnership of gains of the spouses is hereby
declared DISSOLVED and LIQUIDATED. Being the offending spouse,
respondent is deprived of his share in the net profits and the same is
awarded to their child Winifred R. Gozon whose custody is awarded
to petitioner.
Furthermore, said parties are required to mutually support their
child Winifred R. Gozon as her needs arises.
SO ORDERED.7
As regards the property, the Cavite RTC held that it is deemed
conjugal property.
On 22 August 1994, Alfredo executed a Deed of Donation over the
property in favor of their daughter, Winifred Gozon (Winifred). The
Register of Deeds of Malabon, Gil Tabije, cancelled TCT No. 5357
and issued TCT No. M-105088 in the name of Winifred, without
annotating the Agreement and the notice of lis pendens on TCT No.
M-10508.
On 26 October 1994, Alfredo, by virtue of a Special Power of
Attorney9 executed in his favor by Winifred, sold the property to
Inter-Dimensional Realty, Inc. (IDRI) for ₱18 million.10 IDRI paid
Alfredo ₱18 million, representing full payment for the
property.11 Subsequently, the Register of Deeds of Malabon
cancelled TCT No. M-10508 and issued TCT No. M-1097612 to IDRI.
Mario then filed with the Malabon Regional Trial Court (Malabon
RTC) a complaint for Specific Performance and Damages, Annulment
of Donation and Sale, with Preliminary Mandatory and Prohibitory
Injunction and/or Temporary Restraining Order.
On 3 April 2001, the Malabon RTC rendered a decision,13 the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:
01. On the preliminary mandatory and prohibitory
injunction:
1.1 The same is hereby made permanent by:
1.1.1 Enjoining defendants Alfredo
Gozon, Winifred Gozon, Inter-
Dimensional Realty, Inc. and Gil Tabije,
their agents, representatives and all
persons acting in their behalf from any
attempt of commission or continuance of
their wrongful acts of further alienating
or disposing of the subject property;
1.1.2. Enjoining defendant Inter-
Dimensional Realty, Inc. from entering
and fencing the property;
1.1.3. Enjoining defendants Alfredo
Gozon, Winifred Gozon, Inter-
Dimensional Realty, Inc. to respect
plaintiff’s possession of the property.
02. The Agreement to Buy and Sell dated 31 August 1993,
between plaintiff and defendant Alfredo Gozon is hereby
approved, excluding the property and rights of defendant
Elvira Robles-Gozon to the undivided one-half share in the
conjugal property subject of this case.
03. The Deed of Donation dated 22 August 1994, entered
into by and between defendants Alfredo Gozon and
Winifred Gozon is hereby nullified and voided.
04. The Deed of Absolute Sale dated 26 October 1994,
executed by defendant Winifred Gozon, through defendant
Alfredo Gozon, in favor of defendant Inter-Dimensional
Realty, Inc. is hereby nullified and voided.
05. Defendant Inter-Dimensional Realty, Inc. is hereby
ordered to deliver its Transfer Certificate of Title No. M-
10976 to the Register of Deeds of Malabon, Metro Manila.
06. The Register of Deeds of Malabon, Metro Manila is
hereby ordered to cancel Certificate of Title Nos. 10508 "in
the name of Winifred Gozon" and M-10976 "in the name of
Inter-Dimensional Realty, Inc.," and to restore Transfer
Certificate of Title No. 5357 "in the name of Alfredo Gozon,
married to Elvira Robles" with the Agreement to Buy and
Sell dated 31 August 1993 fully annotated therein is hereby
ordered.
07. Defendant Alfredo Gozon is hereby ordered to deliver a
Deed of Absolute Sale in favor of plaintiff over his one-half
undivided share in the subject property and to comply with
all the requirements for registering such deed.
08. Ordering defendant Elvira Robles-Gozon to sit with
plaintiff to agree on the selling price of her undivided one-
half share in the subject property, thereafter, to execute
and deliver a Deed of Absolute Sale over the same in favor
of the plaintiff and to comply with all the requirements for
registering such deed, within fifteen (15) days from the
receipt of this DECISION.
09. Thereafter, plaintiff is hereby ordered to pay defendant
Alfredo Gozon the balance of Four Million Pesos
(₱4,000,000.00) in his one-half undivided share in the
property to be set off by the award of damages in plaintiff’s
favor.
10. Plaintiff is hereby ordered to pay the defendant Elvira
Robles-Gozon the price they had agreed upon for the sale
of her one-half undivided share in the subject property.
11. Defendants Alfredo Gozon, Winifred Gozon and Gil
Tabije are hereby ordered to pay the plaintiff, jointly and
severally, the following:
11.1 Two Million Pesos (₱2,000,000.00) as actual
and compensatory damages;
11.2 One Million Pesos (₱1,000,000.00) as moral
damages;
11.3 Five Hundred Thousand Pesos (₱500,000.00)
as exemplary damages;
11.4 Four Hundred Thousand Pesos (₱400,000.00)
as attorney’s fees; and
11.5 One Hundred Thousand Pesos (₱100,000.00)
as litigation expenses.
11.6 The above awards are subject to set off of
plaintiff’s obligation in paragraph 9 hereof.
12. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay Inter-Dimensional Realty, Inc. jointly
and severally the following:
12.1 Eighteen Million Pesos (₱18,000,000.00)
which constitute the amount the former received
from the latter pursuant to their Deed of Absolute
Sale dated 26 October 1994, with legal interest
therefrom;
12.2 One Million Pesos (₱1,000,000.00) as moral
damages;
12.3 Five Hundred Thousand Pesos (₱500,000.00)
as exemplary damages; and
12.4 One Hundred Thousand Pesos (₱100,000.00)
as attorney’s fees.
13. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay costs of suit.
SO ORDERED.14
On appeal, the Court of Appeals affirmed the Malabon RTC’s
decision with modification. The dispositive portion of the Court of
Appeals’ Decision dated 7 July 2005 reads:
WHEREFORE, premises considered, the assailed decision dated April
3, 2001 of the RTC, Branch 74, Malabon is hereby AFFIRMED with
MODIFICATIONS, as follows:
1. The sale of the subject land by defendant Alfredo Gozon
to plaintiff-appellant Siochi is declared null and void for the
following reasons:
a) The conveyance was done without the consent
of defendant-appellee Elvira Gozon;
b) Defendant Alfredo Gozon’s one-half (½)
undivided share has been forfeited in favor of his
daughter, defendant Winifred Gozon, by virtue of
the decision in the legal separation case rendered
by the RTC, Branch 16, Cavite;
2. Defendant Alfredo Gozon shall return/deliver to plaintiff-
appellant Siochi the amount of ₱5 Million which the latter
paid as earnest money in consideration for the sale of the
subject land;
3. Defendants Alfredo Gozon, Winifred Gozon and Gil
Tabije are hereby ordered to pay plaintiff-appellant Siochi
jointly and severally, the following:
a) ₱100,000.00 as moral damages;
 b) ₱100,000.00 as exemplary damages;
c) ₱50,000.00 as attorney’s fees;
d) ₱20,000.00 as litigation expenses; and
e) The awards of actual and compensatory
damages are hereby ordered deleted for lack of
basis.
4. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay defendant-appellant IDRI jointly and
severally the following:
a) ₱100,000.00 as moral damages;
b) ₱100,000.00 as exemplary damages; and
c) ₱50,000.00 as attorney’s fees.
Defendant Winifred Gozon, whom the undivided one-half share of
defendant Alfredo Gozon was awarded, is hereby given the option
whether or not to dispose of her undivided share in the subject
land.
The rest of the decision not inconsistent with this ruling stands.
SO ORDERED.15
Only Mario and IDRI appealed the decision of the Court of Appeals.
In his petition, Mario alleges that the Agreement should be treated
as a continuing offer which may be perfected by the acceptance of
the other spouse before the offer is withdrawn. Since Elvira’s
conduct signified her acquiescence to the sale, Mario prays for the
Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale
over the property upon his payment of ₱9 million to Elvira.
On the other hand, IDRI alleges that it is a buyer in good faith and
for value. Thus, IDRI prays that the Court should uphold the validity
of IDRI’s TCT No. M-10976 over the property.
We find the petitions without merit.
This case involves the conjugal property of Alfredo and Elvira. Since
the disposition of the property occurred after the effectivity of the
Family Code, the applicable law is the Family Code. Article 124 of
the Family Code provides:
Art. 124. The administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. In case of
disagreement, the husband’s decision shall prevail, subject to the
recourse to the court by the wife for a proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the
other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance
which must have the authority of the court or the written consent of
the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or
both offerors. (Emphasis supplied)
In this case, Alfredo was the sole administrator of the property
because Elvira, with whom Alfredo was separated in fact, was
unable to participate in the administration of the conjugal property.
However, as sole administrator of the property, Alfredo still cannot
sell the property without the written consent of Elvira or the
authority of the court. Without such consent or authority, the sale is
void.16 The absence of the consent of one of the spouse renders the
entire sale void, including the portion of the conjugal property
pertaining to the spouse who contracted the sale. 17Even if the other
spouse actively participated in negotiating for the sale of the
property, that other spouse’s written consent to the sale is still
required by law for its validity.18 The Agreement entered into by
Alfredo and Mario was without the written consent of Elvira. Thus,
the Agreement is entirely void. As regards Mario’s contention that
the Agreement is a continuing offer which may be perfected by
Elvira’s acceptance before the offer is withdrawn, the fact that the
property was subsequently donated by Alfredo to Winifred and then
sold to IDRI clearly indicates that the offer was already withdrawn.
However, we disagree with the finding of the Court of Appeals that
the one-half undivided share of Alfredo in the property was already
forfeited in favor of his daughter Winifred, based on the ruling of
the Cavite RTC in the legal separation case. The Court of Appeals
misconstrued the ruling of the Cavite RTC that Alfredo, being the
offending spouse, is deprived of his share in the net profits and the
same is awarded to Winifred.
The Cavite RTC ruling finds support in the following provisions of the
Family Code:
Art. 63. 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 absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned
by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions
of Article 43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article
213 of this Code; and
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
spouse shall be revoked by operation of law.
Art. 43. The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership,
as the case may be, shall be dissolved and liquidated, but if either
spouse contracted said marriage in bad faith, his or her share of the
net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if Winifred was without the consent of Elvira. Under Article 12520 of
there are none, the children of the guilty spouse by a previous the Family Code, a conjugal property cannot be donated by one
marriage or, in default of children, the innocent spouse; (Emphasis spouse without the consent of the other spouse. Clearly, IDRI was
supplied) not a buyer in good faith.1avvphi1

Thus, among the effects of the decree of legal separation is that the
conjugal partnership is dissolved and liquidated and the offending
spouse would have no right to any share of the net profits earned by
the conjugal partnership. It is only Alfredo’s share in the net profits
which is forfeited in favor of Winifred. Article 102(4) of the Family
Code provides that "[f]or purposes of computing the net profits
subject to forfeiture in accordance with Article 43, No. (2) and 63,
No. (2), the said profits shall be the increase in value between the
market value of the community property at the time of the
celebration of the marriage and the market value at the time of its
dissolution." Clearly, what is forfeited in favor of Winifred is not
Alfredo’s share in the conjugal partnership property but merely in
the net profits of the conjugal partnership property.
With regard to IDRI, we agree with the Court of Appeals in holding
that IDRI is not a buyer in good faith. As found by the RTC Malabon
and the Court of Appeals, IDRI had actual knowledge of facts and
circumstances which should impel a reasonably cautious person to
make further inquiries about the vendor’s title to the property. The
representative of IDRI testified that he knew about the existence of
the notice of lis pendens on TCT No. 5357 and the legal separation
case filed before the Cavite RTC. Thus, IDRI could not feign
ignorance of the Cavite RTC decision declaring the property as
conjugal.
Nevertheless, we find it proper to reinstate the order of the
Malabon RTC for the reimbursement of the ₱18 million paid by IDRI
for the property, which was inadvertently omitted in the dispositive
portion of the Court of Appeals’ decision.
WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005
Decision of the Court of Appeals in CA-G.R. CV No. 74447 with the
following MODIFICATIONS:
(1) We DELETE the portions regarding the forfeiture of
Alfredo Gozon’s one-half undivided share in favor of
Winifred Gozon and the grant of option to Winifred Gozon
whether or not to dispose of her undivided share in the
property; and
(2) We ORDER Alfredo Gozon and Winifred Gozon to pay
Inter-Dimensional Realty, Inc. jointly and severally the
Eighteen Million Pesos (₱18,000,000) which was the
amount paid by Inter-Dimensional Realty, Inc. for the
property, with legal interest computed from the finality of
this Decision.
SO ORDERED.

Furthermore, if IDRI made further inquiries, it would have known

that the cancellation of the notice of lis pendens was highly
irregular. Under Section 77 of Presidential Decree No. 1529,19 the
notice of lis pendens may be cancelled (a) upon order of the court,
or (b) by the Register of Deeds upon verified petition of the party
who caused the registration of the lis pendens. In this case, the lis
pendens was cancelled by the Register of Deeds upon the request of
Alfredo. There was no court order for the cancellation of the lis
pendens. Neither did Elvira, the party who caused the registration of
the lis pendens, file a verified petition for its cancellation.

Besides, had IDRI been more prudent before buying the property, it
would have discovered that Alfredo’s donation of the property to
THIRD DIVISION
G.R. NO. 155409 June 8, 2007
VIRGILIO MAQUILAN, petitioner,
vs.
DITA MAQUILAN, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court assailing the Decision1dated August 30, 2002
promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69689,
which affirmed the Judgment on Compromise Agreement dated
January 2, 2002 of the Regional Trial Court (RTC), Branch 3,
Nabunturan, Compostela Valley, and the RTC Orders dated January
21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656.
The facts of the case, as found by the CA, are as follows:
Herein petitioner and herein private respondent are spouses who
once had a blissful married life and out of which were blessed to
have a son. However, their once sugar coated romance turned bitter
when petitioner discovered that private respondent was having
illicit sexual affair with her paramour, which thus, prompted the
petitioner to file a case of adultery against private respondent and
the latter’s paramour. Consequently, both the private respondent
and her paramour were convicted of the crime charged and were
sentenced to suffer an imprisonment ranging from one (1) year,
eight (8) months, minimum of prision correccional as minimum
penalty, to three (3) years, six (6) months and twenty one (21) days,
medium of prision correccional as maximum penalty.
Thereafter, private respondent, through counsel, filed a Petition for
Declaration of Nullity of Marriage, Dissolution and Liquidation of
Conjugal Partnership of Gains and Damages on June 15, 2001 with
the Regional Trial Court, Branch 3 of Nabunturan, Compostela
Valley, docketed as Civil Case No. 656, imputing psychological
incapacity on the part of the petitioner.
During the pre-trial of the said case, petitioner and private
respondent entered into a COMPROMISE AGREEMENT in the
following terms, to wit:
1. In partial settlement of the conjugal partnership of gains, the
parties agree to the following:
a. ₱500,000.00 of the money deposited in the bank jointly in the
name of the spouses shall be withdrawn and deposited in favor and
in trust of their common child, Neil Maquilan, with the deposit in
the joint account of the parties.
The balance of such deposit, which presently stands at
₱1,318,043.36, shall be withdrawn and divided equally by the
parties;
b. The store that is now being occupied by the plaintiff shall be
allotted to her while the bodega shall be for the defendant. The
defendant shall be paid the sum of ₱50,000.00 as his share in the
stocks of the store in full settlement thereof.
The plaintiff shall be allowed to occupy the bodega until the time
the owner of the lot on which it stands shall construct a building
thereon;
c. The motorcycles shall be divided between them such that the
Kawasaki shall be owned by the plaintiff while the Honda Dream
shall be for the defendant;
d. The passenger jeep shall be for the plaintiff who shall pay the
defendant the sum of ₱75,000.00 as his share thereon and in full
settlement thereof;
e. The house and lot shall be to the common child.
2. This settlement is only partial, i.e., without prejudice to the
litigation of other conjugal properties that have not been
mentioned;
xxxx
The said Compromise Agreement was given judicial imprimatur by
the respondent judge in the assailed Judgment On Compromise
Agreement, which was erroneously dated January 2, 2002. 2
However, petitioner filed an Omnibus Motion dated January 15,
2002, praying for the repudiation of the Compromise Agreement
and the reconsideration of the Judgment on Compromise
Agreement by the respondent judge on the grounds that his
previous lawyer did not intelligently and judiciously apprise him of
the consequential effects of the Compromise Agreement.
The respondent Judge in the assailed Order dated January 21, 2002,
denied the aforementioned Omnibus Motion.
Displeased, petitioner filed a Motion for Reconsideration of the
aforesaid Order, but the same was denied in the assailed Order
dated February 7, 2002.3 (Emphasis supplied)
The petitioner filed a Petition for Certiorari and Prohibition with the
CA under Rule 65 of the Rules of Court claiming that the RTC
committed grave error and abuse of discretion amounting to lack or
excess of jurisdiction (1) in upholding the validity of the Compromise
Agreement dated January 11, 2002; (2) when it held in its Order
dated February 7, 2002 that the Compromise Agreement was made
within the cooling-off period; (3) when it denied petitioner’s Motion
to Repudiate Compromise Agreement and to Reconsider Its
Judgment on Compromise Agreement; and (4) when it conducted
the proceedings without the appearance and participation of the
Office of the Solicitor General and/or the Provincial Prosecutor.4
On August 30, 2002, the CA dismissed the Petition for lack of merit.
The CA held that the conviction of the respondent of the crime of
adultery does not ipso facto disqualify her from sharing in the
conjugal property, especially considering that she had only been
sentenced with the penalty of prision correccional, a penalty that
does not carry the accessory penalty of civil interdiction which
deprives the person of the rights to manage her property and to
dispose of such property inter vivos; that Articles 43 and 63 of the
Family Code, which pertain to the effects of a nullified marriage and
the effects of legal separation, respectively, do not apply,
considering, too, that the Petition for the Declaration of the Nullity
of Marriage filed by the respondent invoking Article 36 of the Family
Code has yet to be decided, and, hence, it is premature to apply
Articles 43 and 63 of the Family Code; that, although adultery is a
ground for legal separation, nonetheless, Article 63 finds no
application in the instant case since no petition to that effect was
filed by the petitioner against the respondent; that the spouses
voluntarily separated their property through their Compromise
Agreement with court approval under Article 134 of the Family
Code; that the Compromise Agreement, which embodies the
voluntary separation of property, is valid and binding in all respects
because it had been voluntarily entered into by the parties; that,
furthermore, even if it were true that the petitioner was not duly
informed by his previous counsel about the legal effects of the
Compromise Agreement, this point is untenable since the mistake or
negligence of the lawyer binds his client, unless such mistake or
negligence amounts to gross negligence or deprivation of due
process on the part of his client; that these exceptions are not
present in the instant case; that the Compromise Agreement was
plainly worded and written in simple language, which a person of
ordinary intelligence can discern the consequences thereof, hence,
petitioner’s claim that his consent was vitiated is highly incredible;
that the Compromise Agreement was made during the existence of
the marriage of the parties since it was submitted during the
pendency of the petition for declaration of nullity of marriage; that
the application of Article 2035 of the Civil Code is misplaced; that
the cooling-off period under Article 58 of the Family Code has no
bearing on the validity of the Compromise Agreement; that the
Compromise Agreement is not contrary to law, morals, good
customs, public order, and public policy; that this agreement may
not be later disowned simply because of a change of mind; that the
presence of the Solicitor General or his deputy is not indispensable
to the execution and validity of the Compromise Agreement, since
the purpose of his presence is to curtail any collusion between the
parties and to see to it that evidence is not fabricated, and, with this
in mind, nothing in the Compromise Agreement touches on the very
merits of the case of declaration of nullity of marriage for the court
to be wary of any possible collusion; and, finally, that the
Compromise Agreement is merely an agreement between the
parties to separate their conjugal properties partially without
prejudice to the outcome of the pending case of declaration of
nullity of marriage.
Hence, herein Petition, purely on questions of law, raising the
following issues:
I.
WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE
OR ADULTERY, CAN STILL SHARE IN THE CONJUGAL PARTNERSHIP;
II
WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY
SPOUSES, ONE OF WHOM WAS CONVICTED OF ADULTERY, GIVING
THE CONVICTED SPOUSE A SHARE IN THE CONJUGAL PROPERTY,
VALID AND LEGAL;
III
WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL
SEPARATION IS A PRE-REQUISITE BEFORE A SPOUSE CONVICTED OF
EITHER CONCUBINAGE OR ADULTERY, BE DISQUALIFIED AND
PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY;
IV
WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED
SPOUSE OF ADULTERY FROM SHARING IN A CONJUGAL PROPERTY,
CONSTITUTES CIVIL INTERDICTION.5
The petitioner argues that the Compromise Agreement should not
have been given judicial imprimatur since it is against law and public
policy; that the proceedings where it was approved is null and void,
there being no appearance and participation of the Solicitor General
or the Provincial Prosecutor; that it was timely repudiated; and that
the respondent, having been convicted of adultery, is therefore
disqualified from sharing in the conjugal property.
The Petition must fail.
The essential question is whether the partial voluntary separation of
property made by the spouses pending the petition for declaration
of nullity of marriage is valid.
First. The petitioner contends that the Compromise Agreement is
void because it circumvents the law that prohibits the guilty spouse,
who was convicted of either adultery or concubinage, from sharing
in the conjugal property. Since the respondent was convicted of
adultery, the petitioner argues that her share should be forfeited in
favor of the common child under Articles 43(2)6 and 637 of the
Family Code.
To the petitioner, it is the clear intention of the law to disqualify the
spouse convicted of adultery from sharing in the conjugal property;
and because the Compromise Agreement is void, it never became
final and executory.
Moreover, the petitioner cites Article 20358 of the Civil Code and
argues that since adultery is a ground for legal separation, the
Compromise Agreement is therefore void.
These arguments are specious. The foregoing provisions of the law
are inapplicable to the instant case.
Article 43 of the Family Code refers to Article 42, to wit:
Article 42. The subsequent marriage referred to in the preceding
Article9 shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance
shall be recorded in the civil registry of the residence of the parties
to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage
and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed.
where a subsequent marriage is terminated because of the
reappearance of an absent spouse; while Article 63 applies to the
effects of a decree of legal separation. The present case involves a
proceeding where the nullity of the marriage is sought to be
declared under the ground of psychological capacity.
Article 2035 of the Civil Code is also clearly inapplicable. The
Compromise Agreement partially divided the properties of the
conjugal partnership of gains between the parties and does not deal
with the validity of a marriage or legal separation. It is not among
those that are expressly prohibited by Article 2035.
Moreover, the contention that the Compromise Agreement is
tantamount to a circumvention of the law prohibiting the guilty
spouse from sharing in the conjugal properties is misplaced. Existing
law and jurisprudence do not impose such disqualification.
Under Article 143 of the Family Code, separation of property may be
effected voluntarily or for sufficient cause, subject to judicial
approval. The questioned Compromise Agreement which was
judicially approved is exactly such a separation of property allowed
under the law. This conclusion holds true even if the proceedings for
the declaration of nullity of marriage was still pending. However, the
Court must stress that this voluntary separation of property is
subject to the rights of all creditors of the conjugal partnership of
gains and other persons with pecuniary interest pursuant to Article
136 of the Family Code.
Second. Petitioner’s claim that since the proceedings before the RTC
were void in the absence of the participation of the provincial
prosecutor or solicitor, the voluntary separation made during the
pendency of the case is also void. The proceedings pertaining to the
Compromise Agreement involved the conjugal properties of the
spouses. The settlement had no relation to the questions
surrounding the validity of their marriage. Nor did the settlement
amount to a collusion between the parties.
Article 48 of the Family Code states:
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (Emphasis supplied)
Section 3(e) of Rule 9 of the 1997 Rules of Court provides:
SEC. 3. Default; declaration of.- x x x x
xxxx
(e) Where no defaults allowed.— If the defending party in action for
annulment or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the
parties exists if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated.
(Emphasis supplied
Truly, the purpose of the active participation of the Public
Prosecutor or the Solicitor General is to ensure that the interest of
the State is represented and protected in proceedings for
annulment and declaration of nullity of marriages by preventing
collusion between the parties, or the fabrication or suppression of
evidence.10 While the appearances of the Solicitor General and/or
the Public Prosecutor are mandatory, the failure of the RTC to
require their appearance does not per se nullify the Compromise
Agreement. This Court fully concurs with the findings of the CA:
x x x. It bears emphasizing that the intendment of the law in
requiring the presence of the Solicitor General and/or State
prosecutor in all proceedings of legal separation and annulment or
declaration of nullity of marriage is to curtail or prevent any
possibility of collusion between the parties and to see to it that their
evidence respecting the case is not fabricated. In the instant case,
there is no exigency for the presence of the Solicitor General and/or
the State prosecutor because as already stated, nothing in the
subject compromise agreement touched into the very merits of the
case of declaration of nullity of marriage for the court to be wary of
any possible collusion between the parties. At the risk of being
repetiti[ve], the compromise agreement pertains merely to an
agreement between the petitioner and the private respondent to
separate their conjugal properties partially without prejudice to the
outcome of the pending case of declaration of nullity of marriage.11
Third. The conviction of adultery does not carry the accessory of civil
interdiction. Article 34 of the Revised Penal Code provides for the
consequences of civil interdiction:
Art. 34. Civil Interdiction. – Civil interdiction shall deprive the
offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of
any ward, of marital authority, of the right to manage his property
and of the right to dispose of such property by any act or any
conveyance inter vivos.
Under Article 333 of the same Code, the penalty for adultery is
prision correccional in its medium and maximum periods. Article
333 should be read with Article 43 of the same Code. The latter
provides:
Art. 43. Prision correccional – Its accessory penalties. – The penalty
of prision correccional shall carry with it that of suspension from
public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months.
The offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.
It is clear, therefore, and as correctly held by the CA, that the crime
of adultery does not carry the accessory penalty of civil interdiction
which deprives the person of the rights to manage her property and
to dispose of such property inter vivos.
Fourth. Neither could it be said that the petitioner was not
intelligently and judiciously informed of the consequential effects of
the compromise agreement, and that, on this basis, he may
repudiate the Compromise Agreement. The argument of the
petitioner that he was not duly informed by his previous counsel
about the legal effects of the voluntary settlement is not convincing.
Mistake or vitiation of consent, as now claimed by the petitioner as
his basis for repudiating the settlement, could hardly be said to be
evident. In Salonga v. Court of Appeals,12 this Court held:
[I]t is well-settled that the negligence of counsel binds the client.
This is based on the rule that any act performed by a lawyer within
the scope of his general or implied authority is regarded as an act of
his client. Consequently, the mistake or negligence of petitioners'
counsel may result in the rendition of an unfavorable judgment
against them.
Exceptions to the foregoing have been recognized by the Court in
cases where reckless or gross negligence of counsel deprives the
client of due process of law, or when its application "results in the
outright deprivation of one's property through a technicality." x x x
x13
None of these exceptions has been sufficiently shown in the present
case.
WHEREFORE, the Petition is DENIED. The Decision of the Court of
Appeals is AFFIRMED with MODIFICATION that the subject
Compromise Agreement is VALID without prejudice to the rights of
all creditors and other persons with pecuniary interest in the
properties of the conjugal partnership of gains.

SO ORDERED.
EN BANC
G.R. No. 11263 November 2, 1916
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
Territorial wherein, 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 Doña
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 the public peace and the purity of the wife; as where the husband
wife in every case and on the part of the husband when public makes so base demands upon his wife and indulges in the habit of
scandal or disgrace of the wife results therefrom; personal violence assaulting her. The pro tanto separation resulting from a decree for
actually inflicted or grave insults: violence exercised by the husband separate support is not an impeachment of that public policy by
toward the wife in order to force her to change her religion; the which marriage is regarded as so sacred and inviolable in its nature;
proposal of the husband to prostitute his wife; the attempts of the it is merely a stronger policy overruling a weaker one; and except in
husband or wife to corrupt their sons or to prostitute their so far only as such separation is tolerated as a means of preserving
daughters; the connivance in their corruption or prostitution; and the public peace and morals may be considered, it does not in any
the condemnation of a spouse to perpetual chains or hard labor, respect whatever impair the marriage contract or for any purpose
while in this jurisdiction the only ground for a divorce is adultery. place the wife in the situation of a feme sole.
(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 The foregoing are the grounds upon which our short opinion and
after an exhaustive examination of the entire subject. Although the order for judgment, heretofore filed in this case, rest.
case was appealed to the Supreme Court of the United States and
the judgment rendered by this court was there reversed, the Torres, Johnson and Carson, JJ., concur.
reversal did not affect in any way or weaken the doctrine in
reference to adultery being the only ground for a divorce. And since
Separate Opinions
the decision was promulgated by this court in that case in
December, 1903, no change or modification of the rule has been
MORELAND, J., concurring:
announced. It is, therefore, the well settled and accepted doctrine in
this jurisdiction.
I based my vote in this case upon the ground that a husband cannot,
by his own wrongful acts, relieve himself from the duty to support
But it is argued that to grant support in an independent suit is
his wife imposed by law; and where a husband, by wrongful, illegal,
equivalent to granting divorce or separation, as it necessitates a
and unbearable conduct, drives his wife from the domicile fixed by
determination of the question whether the wife has a good and
him, he cannot take advantage of her departure to abrogate the law
sufficient cause for living separate from her husband; and,
applicable to the marital relation and repudiate his duties
consequently, if a court lacks power to decree a divorce, as in the
thereunder. In law and for all purposes within its purview, the wife
instant case, power to grant a separate maintenance must also be
still remains an inmate of the conjugal domicile; for I regard it as a
lacking. The weakness of this argument lies in the assumption that
principle of law universally recognized that where a person by his
the power to grant support in a separate action is dependent upon a
wrongful and illegal acts creates a condition which under ordinary
power to grant a divorce. That the one is not dependent upon the
circumstances would produce the loss of rights or status pertaining
other is apparent from the very nature of the marital obligations of
to another, the law will, whenever necessary to protect fully the
the spouses. The mere act of marriage creates an obligation on the
rights or status of the person affected by such acts, regard the
part of the husband to support his wife. This obligation is founded
condition by such acts created as not existing and will recur to and
not so much on the express or implied terms of the contract of
act upon the original situation of the parties to determine their
marriage as on the natural and legal duty of the husband; an
relative rights or the status of the person adversely affected.
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 I do not believe, therefore, that the case is properly conceived by
parental home. A judgment for separate maintenance is not due defendant, when the consideration thereof proceeds solely on the
and payable either as damages or as a penalty; nor is it a debt in the theory that the wife is outside the domicile fixed by the husband.
strict legal sense of the term, but rather a judgment calling for the Under the facts alleged in the complainant the wife is legally still
performance of a duty made specific by the mandate of the within the conjugal domicile.
sovereign. This is done from necessity and with a view to preserve
EN BANC
G.R. No. L-17014 August 11, 1921
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; Boyd vs.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. (Evans vs.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 cross-
complaint 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.
FIRST DIVISION
G.R. No. 139789. May 12, 2000
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and
SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
G.R. No. 139808. May 12, 2000
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA
ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to
live with her in conjugal bliss? The answer is no. Marital rights
including coverture and living in conjugal dwelling may not be
enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or
detention,1 or by which the rightful custody of a person is withheld
from the one entitled thereto.2 Slx
"Habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his capture
and detention, to do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that behalf."3
It is a high prerogative, common-law writ, of ancient origin, the
great object of which is the liberation of those who may be
imprisoned without sufficient cause.4 It is issued when one is
deprived of liberty or is wrongfully prevented from exercising legal
custody over another person.5
The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the
Court of Appeals and its resolution8 dismissing the application for
habeas corpus to have the custody of her husband, lawyer
Potenciano Ilusorio and enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio 9 is to annul
that portion of the decision of the Court of Appeals giving Erlinda K.
Ilusorio visitation rights to her husband and to enjoin Erlinda and
the Court of Appeals from enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive
property valued at millions of pesos. For many years, lawyer
Potenciano Ilusorio was Chairman of the Board and President of
Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted
matrimony and lived together for a period of thirty (30) years. In
1972, they separated from bed and board for undisclosed reasons.
Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City
when he was in Manila and at Ilusorio Penthouse, Baguio Country
Club when he was in Baguio City. On the other hand, Erlinda lived in
Antipolo City.
Out of their marriage, the spouses had six (6) children, namely:
Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo
(age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39).
On December 30, 1997, upon Potenciano’s arrival from the United
States, he stayed with Erlinda for about five (5) months in Antipolo
City. The children, Sylvia and Erlinda (Lin), alleged that during this
time, their mother gave Potenciano an overdose of 200 mg instead
of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in
New York, U.S.A. As a consequence, Potenciano’s health
deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court,
Antipolo City a petition10 for guardianship over the person and
property of Potenciano Ilusorio due to the latter’s advanced age,
frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio
City, Potenciano Ilusorio did not return to Antipolo City and instead
lived at Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition
for habeas corpus to have the custody of lawyer Potenciano Ilusorio.
She alleged that respondents11 refused petitioner’s demands to see
and visit her husband and prohibited Potenciano from returning to
Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered
decision the dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is
hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioner’s
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorio’s staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorio’s wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be
recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint or
detention of the subject of the petition.
"SO ORDERED."12
Hence, the two petitions, which were consolidated and are herein
jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of
illegal confinement or detention,13 or by which the rightful custody
of a person is withheld from the one entitled thereto. It is available
where a person continues to be unlawfully denied of one or more of
his constitutional freedoms, where there is denial of due process,
where the restraints are not merely involuntary but are
unnecessary, and where a deprivation of freedom originally valid
has later become arbitrary.14 It is devised as a speedy and effectual
remedy to relieve persons from unlawful restraint, as the best and
only sufficient defense of personal freedom. 15 Jksmä â Ó
The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint, and to relieve a
person therefrom if such restraint is illegal.16
To justify the grant of the petition, the restraint of liberty must be
an illegal and involuntary deprivation of freedom of action. 17 The
illegal restraint of liberty must be actual and effective, not merely
nominal or moral.18
The evidence shows that there was no actual and effective
detention or deprivation of lawyer Potenciano Ilusorio’s liberty that
would justify the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age, or under medication
does not necessarily render him mentally incapacitated. Soundness
of mind does not hinge on age or medical condition but on the
capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no
unlawful restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio
did not request the administrator of the Cleveland Condominium
not to allow his wife and other children from seeing or visiting him.
He made it clear that he did not object to seeing them.
As to lawyer Potenciano Ilusorio’s mental state, the Court of
Appeals observed that he was of sound and alert mind, having
answered all the relevant questions to the satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make
choices. In this case, the crucial choices revolve on his residence and
the people he opts to see or live with. The choices he made may not
appeal to some of his family members but these are choices which
exclusively belong to Potenciano. He made it clear before the Court
of Appeals that he was not prevented from leaving his house or
seeing people. With that declaration, and absent any true restraint
on his liberty, we have no reason to reverse the findings of the
Court of Appeals.
With his full mental capacity coupled with the right of choice,
Potenciano Ilusorio may not be the subject of visitation rights
against his free choice. Otherwise, we will deprive him of his right to
privacy. Needless to say, this will run against his fundamental
constitutional right. Esä m
The Court of Appeals exceeded its authority when it awarded
visitation rights in a petition for habeas corpus where Erlinda never
even prayed for such right. The ruling is not consistent with the
finding of subject’s sanity.
When the court ordered the grant of visitation rights, it also
emphasized that the same shall be enforced under penalty of
contempt in case of violation or refusal to comply. Such assertion of
raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve
the right of a parent to visit a minor child but the right of a wife to
visit a husband. In case the husband refuses to see his wife for
private reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband
to live with his wife. Coverture cannot be enforced by compulsion of
a writ of habeas corpus carried out by sheriffs or by any other
mesne process. That is a matter beyond judicial authority and is best
left to the man and woman’s free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition
for lack of merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the
decision of the Court of Appeals insofar as it gives visitation rights to
respondent Erlinda K. Ilusorio. No costs.
SO ORDERED.
EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
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-in-law, the defendants-appellees, Vicente, Mamerto
and Mena,1 all surnamed "Escaño," 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 Escaño, 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 Escaño 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. 1105-06). The following
morning, the Escaño 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 Escaño 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-Escaño"), but her letters
became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escaño"). 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 Escaño 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. Escaño, her parents, Mamerto
and Mena Escaño, 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
Escaño and Mena Escaño 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. Escaño liable for damages and in
dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano
and the heirs of Doña Mena Escaño 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 Escaño, 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 Escaño 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 non-prosecution.
It is equally clear from the record that the valid marriage between
Pastor Tenchavez and Vicenta Escaño 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
Escaño, 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 Escaño'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 Escaño and his wife, the late Doña Mena Escaño, 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 Escaño'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-
Escaño" 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 Escaño 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 Escaño and his wife, but to the
refusal of Vicenta to proceed with it. That the spouses Escaño 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 Escaño, 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.
(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. Escaño;
(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-
appellant Tenchavez the amount of P25,000 for damages and
attorneys' fees;

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

With regard to the P45,000 damages awarded to the defendants,
Mamerto Escaño and the estate of his wife, the deceased Mena
Dr. Mamerto Escaño and Mena Escaño, by the court below, we
Escaño, P5,000 by way of damages and attorneys' fees.
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 Neither party to recover costs.
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: