GR No.

L-3693 July 29, 1950

MARGARET QUERUBIN, appellant-appellant, v. SILVESTRE QUERUBIN, appealed-appealed.

Silvestre Querubin is from Caoayan, Ilocos Sur, of Filipino parents. In 1926 he left for the United States in order to study
but with the purpose of later returning to his native country. He obtained the title of "Master of Arts and Sciences" at the
"University of Southern California," an institution domiciled in Los Angeles, California, where the respondent began living
in 1934. chanroblesvirtualawlibrary chanrobles virtual law library

On October 20, 1943, Silvestre Querubin married the appellant, Margaret Querubin, in Albuquerque, New Mexico. As a
result of this marriage, Querubina Querubin was born, who, at the time of the hearing of the case in the Ilocos Sur Court
of First Instance, was a little more or less four years old. chanroblesvirtualawlibrary chanrobles virtual law library

In 1948 the appellant filed a divorce action against the defendant, based on "mental cruelty." On February 7, 1948 the
divorce was granted to the husband by virtue of a counterclaim filed by him and based on the infidelity of his wife. On April
5, 1949, at the request of the defendant and counter-plaintiff, (appealed in this habeas corpus action ) the Los Angeles
Superior Court issued an interlocutory order providing the following:

It is therefore ordered, adjudged and decreed that the interlocutory judgment of divorce hereinbefore entered on February
27, 1948, in Book 1891, page 319, be and the same is hereby modified in the following particulars in connection with the
custody of the minor child of the parties only: chanrobles virtual law library

(1) The care, custody and control of the minor child of the parties, Querubina Querubin, is hereby awarded to defendant
and cross-complainants; chanrobles virtual law library

(2) Said child is to be maintained in a neutral home, subject to the right of reasonable visitation on the part of both parties
to this action; chanrobles virtual law library

(3) Each party shall have the right to take said child away from said neutral home but plaintiff and cross-defendant is
restrained from taking said child to her place of residence; chanrobles virtual law library

(4) Each party is restrained from molesting the other, or in any way interfering with the other's right of reasonable visitation
of said child; chanrobles virtual law library

(5) Each party is restrained from removing the child from the State of California without first securing the permission of the
court; said parties are further restrained from keeping the child out of the County of Los Angeles for more than one day
without first securing the consent of the court.

The respondent left San Francisco on November 7, 1949, arriving in Manila on November 25. On the 27th of the
aforementioned month, he arrived in Caoayan, Ilocos Sur, where he currently lives, taking with him the girl Querubina,
whom he brought to the Philippines because, as father, he wanted to prevent her from becoming aware of the indecent
behavior of his own mother. The respondent wanted his daughter to be brought up in an environment of high
morality. chanroblesvirtualawlibrary chanrobles virtual law library

At the request of the appellant Margaret, the Superior Court of Los Angeles, California, on November 30, 1949 modified
its order of April 5, 1949, providing the following:

Under interlocutory decree of March 7, 1949, the child, a girl now 3 1/2 years old, was granted to deft husband, but the
child was to be kept in a neutral home; both parties were given reasonable visitation and both were restrained from
removing the child out of the state. Deft has taken the child with him to the Philippine Islands. At time of trial custody was
apparently denied pft because she was then living with another man. She is now married to this man and they have a well
equipped home. Ptf appears to be a devoted mother. She has one child, the issue of her present marriage, and is also
caring for a child that was abandoned by certain friends of hers. Ptf's husband is regularly and permanently
employed. Witnesses testified on behalf of the ptf in reference to her motherly qualities and the condition of her
home. She visited the child in question sufficiently when the child was in the neutral home and brought her toys and other
articles. Service of the order to show cause was made on deft's attorneys of record.chanroblesvirtualawlibrary chanrobles
virtual law library

The interlocutory decree is modified so as to provide that custody of the child shall be awarded to ptf and deft shall have
the right of reasonable visitation. Deft shall pay ptf for the support of the child $ 30 each month on the 1st day thereof,
commencing Jan. 1950.

On the day of the hearing of this habeas corpus case in Ilocos Sur, the respondent declared that he never tried to change
his citizenship; that when he came to the country he had about P2,000 in savings; that three weeks after his arrival he
received an offer to teach with a monthly P250 salary at the college established by Dr. Sobrepe a in Villasis,
Pangasinan; that he has never been deprived of parental authority by court ruling, nor declared absent from the
Philippines, nor subject to civil interdiction. According to the court a quo , the respondent is of irreproachable
conduct. chanroblesvirtualawlibrary chanrobles virtual law library

On February 10, 1950, the appellant Margaret Querubin, through her lawyer, filed a petition for habeas corpus in the
Ilocos Sur Court of First Instance claiming custody of her daughter Querubina, alleging as a basis the interlocutory decree
of the California court which granted her such custody. After the corresponding hearing, the Court a quo , on February 28,
1950, denied the request. The appellant goes on appeal before this Court. chanroblesvirtualawlibrary chanrobles virtual
law library

The appellant maintains that under Article 48 of Rule 39, Decree Exhibit A-1 of the Court of Los Angeles, California, must
be complied with in the Philippines. Its operative part reads:

The interlocutory decree is modified so as to the provide that custody of the child shall be awarded to ptf and deft shall
have the right to reasonable visitation. Deft shall pay ptf for the support of the child $ 30 each month on the 1st day
thereof, commencing Jan. 1950.

An interlocutory decree on the custody of a minor is not a final decision. By its nature it is not firm. It is subject to change
as circumstances change. In the first decree, the father was given custody of the minor. At the request of the father, the
decree of April 5 was issued prohibiting the mother from taking at least her home because she was once again in
adulterous relations with another man. When the respondent was no longer in Los Angeles, because they had already
come to the Philippines, the last order was amended and it was arranged that custody be entrusted to the appellant,
paying the respondent $ 30 a month for the maintenance of the minor. The pension is not fixed and is increased or
decreased as the needs of the pensioner increase or decrease or as required by the economic conditions of the person
who gives it.chanroblesvirtualawlibrary chanrobles virtual law library

Because the interlocutory decree, Exhibit A-1, does not constitute a final decision, its compliance cannot be requested in
the Philippines. In the same United States, compliance with an interlocutory order cannot be requested in the court of
another state.

The rule is of common knowledge that the definitive judgment of a court of another state between the same parties on the
same cause of action, on the merits of the case is conclusive, but it must be a definitive judgment on the merits
only. Where the judgment is merely interlocutory, the determination of the question by the court which rendered it did not
settle and adjudge finally the rights of the parties. "(National Park Bank vs. Old Colony Trust Co., 186 NYS,
717.) chanrobles virtual law library

As already stated the Minnesota decree, to the extent that it is final and not subject to modification, is entitled to the
protection of the full faith and credit clause of the federal Constitution and must be enforced in this state. If, however, a
part of the Minnesota decree in not final, but is subject to modification by the court which rendered it, then neither the
United States Constitution nor the principle of comity compels the courts of this state to enforce that part of the
decree ; for no court other than the one granting the original decree could undertake to administer relief without bringing
about a conflict of authority. (Levine vs. Levine, 187 Pac., 609.) chanrobles virtual law library

A judgment rendered by a competent court, having jurisdiction in one state, is conclusive on the merits in the courts of
every other state, when made the basis of an action and the merits cannot be reinvestigated. Our own Supreme Court so
holds. Cook vs. Thornhill, 13 Tex. 293, 65 Am. Dec. 63. But before such a judgment rendered in one state is entitled to
acceptance, in the courts of another state, as conclusive on the merits, it must be a final judgment and not merely an
interlocutory decree. Freeman on Judgment, Sec. 575; Baugh vs. Baugh, 4 Bibb (7 Ky.) 556; Brinkley vs. Brinkley, 50 NY
184, 10 Am. Rep. 460; Griggs, vs. Becker, 87 Wis. 313, 58 NW 396. (Walker vs. Garland et al., 235 SW, 1078.)

In general, a divorce decree entrusting the custody of a child of the marriage to one of the spouses is respected by the
courts of other states "at the time and under the circumstances of its rendition but that such a decree has no controlling
effects in another state as to facts or conditions arising subsequently to the date of the decree; and the courts of the latter
state may, in proper proceedings, award the custody otherwise upon proof of matters subsequent to the decree which
justify the change in the interest of the child . " (20 ALR, 815.) chanrobles virtual law library

In the present case the circumstances have changed. Querubina is no longer in Los Angeles but in Caoayan, Ilocos
Sur. He is under the care of his father. There is an enormous distance from Los Angeles and the present address of the
minor and the cost of the passage to that city would be very high, and it is even possible that it is beyond the reach of the
appellant. There is no proof that she is in a position to pay the travel expenses of the minor and of the one who
accompanies her. She is not a pack of cigarettes that can be mailed to Los
Angeles. chanroblesvirtualawlibrary chanrobles virtual law library

There is no record that the circumstances that occurred in November 1949 in Los Angeles prevailed in the same state
until the moment the case was heard in the Ilocos Sur Court of First Instance. There is also no evidence that the appellant
has sufficient funds to pay for the Querubina girl's trip from Caoayan, Ilocos Sur, to Los Angeles, California, and to answer
for her food, care and education, and stating in documents that the father, more than anyone, are interested in the care
and education of her daughter, and has more than P2,000 savings deposited in a bank, we believe that the court a
quo did not err to the deny the request. chanroblesvirtualawlibrary chanrobles virtual law library

The Court could not, without satisfactory evidence, order without remorse of conscience the delivery of the child to the
appellant's lawyer: it is his obligation to ensure her safety and well-being. It is not just a matter of resolving the preferential
right of the father and mother in custody. The vital and transcendental question of the future of the girl is superior to all
consideration. The State watches over its citizens. Article 171 of the Civil Code provides that "The Courts may deprive
parents of parental authority , or suspend the exercise of it, if they treat their children with excessive harshness, or if they
give them orders, advice or corrective examples." In Courts against Castilloand another (41 Jur. Fil., 495), this Court
declared that the Court of first instance did not err in naming the grandmother, as guardian of two minors, instead of her
mother who was convicted of adultery. chanroblesvirtualawlibrary chanrobles virtual law library

Article 154 of the Civil Code provides that "The father, and failing that the mother, have power over their legitimate, non-
emancipated children." However, if this power is improperly exercised, the courts, as we have already said, can deprive it
and entrust the minor's citizen to other institutions, as provided in Article 6 of Rule 100, which is a reproduction of Article
771 of Law No. 190. In the case of Lozano v. Martinez and De Vega (36 Jur. Fil., 1040), in which the former, in a writ
of habeas corpus , claimed against his wife the custody of his minor son of 10 years ago, this Court, on appeal, declared
that the court a quono abuse of the discretion conferred on him by article 771 of the Code of Civil Procedure when
denying the request. This interpretation of the article regarding the due exercise of the discretion of a court of first instance
has been reaffirmed in the case of Pelayo v. Lavin (40 Jur. Fil., 529). chanroblesvirtualawlibrary chanrobles virtual law
library

In the application submitted, there is not even claim that the court a quo has abused its discretion. This Court should not
revoke its action. chanroblesvirtualawlibrary chanrobles virtual law library

At the hearing of the case in the Court of First Instance of Ilocos Sur, the respondent declared that he had brought his
daughter to the Philippines because he wanted to prevent her from becoming aware of the improper conduct and infidelity
committed by the mother, preventing her from seeing her live with the man who had offended his father. The respondent
said that he wanted his daughter to be raised in an environment of high morals, and that his wife's infidelity not be
indirectly punished. Under Divorce Law No. 2710, the guilty spouse does not have the right to custody of minor
children. Current legislation, good customs and the interests of public order advise that the girl should be out of the care of
a mother who has violated the oath of allegiance to her husband.chanroblesvirtualawlibrary chanrobles virtual law library

In the matter of Manuela Barretto Gonzales against Augusto Gonzales(58 Jur. Fil., 72), it was requested by the plaintiff
that the divorce obtained by the defendant in Reno, Nevada, on November 28, 1927, be confirmed and ratified by the
Manila Court of First Instance. This court issued a judgment pursuant to the petition. Taking into account article 9 of the
Civil Code that provides that "Laws relating to family rights and duties, or the status, condition and legal capacity of
people, oblige Spaniards (Filipinos) even if they reside in a foreign country" and Article 11 of the same code that says in
part that "... the prohibitive laws concerning people, their acts or their property, and those that have as their object public
order and good customs, will not be without effect by laws or sentences handed
down,chanroblesvirtualawlibrary chanrobles virtual law library

Foreign court rulings cannot be enforced in the Philippines if they are contrary to the laws, customs and public order. If
said decisions, by the simple theory of reciprocity, judicial courtesy and international civility, are a sufficient basis for our
courts to decide in accordance with them, then our courts would be in the poor position of having to pass sentences
contrary to our laws, customs and public order. This is absurd. chanroblesvirtualawlibrary chanrobles virtual law library

In Ingenohl againstOlsen & Co. (47 Jur. Fil., 199), the scope of international courtesy was discussed. Article 311 of the
Code of Civil Procedure, which is today Article 48, Rule 39, was the basis of the action filed by Ingenohl. In his
application, he requested that the Manila Court of First Instance hand down a sentence in accordance with that handed
down by the Hong Kong Supreme Court. After the corresponding hearing, the court issued a judgment in favor of the
plaintiff with legal interests and costs. On appeal, it was alleged that the lower court erred by failing to declare that the
decision and judgment of the Hong Kong Supreme Court was rendered and recorded as a result of a manifest error of fact
and law. This Court declared that "It is a well-established principle that, in the absence of a treaty or law, and by virtue of
courtesy and international law,chanrobles virtual law library

If the request is granted, the minor would be under the care of her mother who was judicially declared guilty of marital
infidelity; he would live under a roof together with the man who dishonored his mother and offended his father; he would
play and grow with the fruit of his mother's adulterous love; would reach puberty with the idea that a woman who was
unfaithful to her husband has the right to guard her daughter. In such an environment a girl cannot be raised properly: if
she were to learn during her adolescence that her father had been betrayed by her mother with the man with whom she
lives, that girl would live under an impression of inferiority moral of incalculable consequences, and therefore would never
be happy; and if, under the influence of his mother, Come to believe that the infidelity of a wife is just an incident as
temporary as changing headdress, the girl would go down the path of perdition. And the moral education that your
stepfather can give you can hardly be better.chanroblesvirtualawlibrary chanrobles virtual law library

If the application is denied, the girl would live with her father with the benefit of exclusive parental care, and not with the
divided care of a mother who has to care for her husband, her two daughters, and a third child. , the protected. For the
welfare of the minor Cherubina, which is what matters most in the present case, her custody by the father should be
considered preferential. chanroblesvirtualawlibrary chanrobles virtual law library

In the United States itself, the cardinal point that the courts take into account is not the claim of the parties or the force of
the interlocutory decree, but the well-being of the minor.

A consideration of all the facts and circumstances leads to the conclusion that comity does not require the courts of this
state, regardless of the well-being of the child, to lend their aid to the enforcement of the Iowa decree by returning
Winifred to the custody of her grandmother. A child is not a chattel to which title and the right of possession may be
secured by the decree of any court. If the decree had been rendered by a domestic court of competent jurisdiction, it
would not have conclusively established the right to the custody of the child. In a contest between rival claimants, this
court would have been free, notwithstanding the decree, to award the custody solely with an eye to the child's
welfare. (State ex rel. Aldridge v. Aldridge, 204 NW 324.)chanrobles virtual law library

On habeas corpus by the mother to obtain possession from the father of two children aged four and six years, whose
custody she alleged had been awarded her in divorce proceedings in another state, it appeared that the mother was
without property, and had no means of support save her personal earnings of $ 15 per month, was in poor health, and
lived with her mother, in immoral surroundings, and that the father was an industrious and sober man, earnings $ 100 per
month. Held, that the welfare of the children was the only thing to be considered, and a judgment awarding their custody
to the mother should be reversed. (Kentzler vs. Kentzler, 28 Pac., 370.)

The appellant, as a last resort, invokes the comity of nations . Reciprocity, courtesy between nations is not absolute. It
governs when there is a treaty and there is equality of legislation. The doctrine of reciprocity is adopted when the foreign
court has jurisdiction to hear the case, the parties have appeared and discussed the matter on the merits. Sometimes it is
granted as a privilege but not as a strict right. The courtesy requested has not been recognized by this Court when I
declare that the rights and duties of the family, state, condition and legal capacity of persons are governed by the laws of
the Philippines and not by those of America (Gonzales v. Gonzales, supra) and did not validate the Hong Kong Supreme
Court decision because it was wrong in its findings of fact and law (Ingenohl v. Olsen and
Co., supra ). chanroblesvirtualawlibrary chanrobles virtual law library

Reciprocity between the states of the American Union is not absolute. It is not an unbreakable rule. The various cases
cited above demonstrate this. There is another case:

On the question of comity, this court said in the habeas corpus case of In re Stockman, 71 Mich. 180, 38 NW
876: chanrobles virtual law library

"Comity cannot be considered in a case like this, when the future welfare of the child is the vital question in the case. The
good of the child is superior to all other considerations. It is the polar star to guide to the conclusion in all cases of infants,
whether the question is raised upon a writ of habeas corpus or in a court of chancery. " ( Ex parte Leu, 215 NW, 384.)

We have already seen that the interlocutory order transferring custody of the minor to the appellant is in conflict with the
express provisions of the legislation in force in the Philippines. In the first decree and in the amendment, the custody of
the minor was entrusted to the father and, in the amended order, the mother was prohibited from taking the minor home
because she was again in illegal relationships with another man. But the last amending decree, contrary to the sense of
justice, the law, and good customs, entrusted the custody of the minor to whom he was an unfaithful wife because she
was already married to the person who committed adultery. And under the doctrine of the comity of nations, the appellant
contends that this decree must be complied with in the Philippines. We believe that for the various reasons outlined
above, the claim is untenable. chanroblesvirtualawlibrary chanrobles virtual law library

The appealed sentence is confirmed. The appellant will pay the costs.