Perido v.

Perido, 63 SCRA 97
FACTS: Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His
first wife was Benita Talorong, with whom he begot 3 children: Felix, Ismael, and Margarita.
After Benita died Lucio married Marcelina Baliguat, with whom he had 5 children: Eusebio,
Juan, Maria, Sofronia and Gonzalo. Lucio died in 1942, while his second wife died in 1943.
Margarita is the only living child of the first marriage. The children and grandchildren of the first
marriage and second marriage filed a case regarding the partition of the properties of Lucio
Perido. Margarita et al asserted that the children and grandchildren of the second marriage were
illegitimate.

ISSUE: W/N the children and grandchildren of the second marriage of Lucio Perido were
legitimate, entitling them for the partition of lands

HELD: Yes. A person who was not at the marriage ceremony cannot testify as an eyewitness
that the marriage did not take place. In the absence of proof that marriage did not take place a
man and a woman living together as husband and wife are presumed married.

Cariño vs Cariño
In 1969 SPO4 Santiago Cariño married Susan Nicdao Cariño. He had 2 children with her. In
1992, SPO4 contracted a second marriage, this time with Susan Yee Cariño. In 1988, prior to
his second marriage, SPO4 is already bedridden and he was under the care of Yee. In 1992, he
died 13 days after his marriage with Yee. Thereafter, the spouses went on to claim the benefits
of SPO4. Nicdao was able to claim a total of P140,000.00 while Yee was able to collect a total
of P21,000.00. In 1993, Yee filed an action for collection of sum of money against Nicdao. She
wanted to have half of the P140k. Yee admitted that her marriage with SPO4 was solemnized
during the subsistence of the marriage b/n SPO4 and Nicdao but the said marriage between
Nicdao and SPO4 is null and void due to the absence of a valid marriage license as certified by
the local civil registrar. Yee also claimed that she only found out about the previous marriage on
SPO4’s funeral.
ISSUE: Whether or not the absolute nullity of marriage may be invoked to claim presumptive
legitimes.
HELD: The marriage between Nicdao and SPO4 is null and void due the absence of a valid
marriage license. The marriage between Yee and SPO4 is likewise null and void for the same
has been solemnized without the judicial declaration of the nullity of the marriage between
Nicdao and SPO4. Under Article 40 of the FC, 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. Meaning, 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 to be free from legal infirmity, is a final judgment declaring the previous
marriage void. However, for purposes other than remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass upon the validity of
marriage even after the death of the parties thereto, and even in a suit not directly instituted to
question the validity of said marriage, so long as it is essential to the determination of the case.
In such instances, evidence 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.
The SC ruled that Yee has no right to the benefits earned by SPO4 as a policeman for their
marriage is void due to bigamy; she is only entitled to properties, money etc owned by them in
common in proportion to their respective contributions. Wages and salaries earned by each
party shall belong to him or her exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits
earned by SPO4 as a cop even if their marriage is likewise void. This is because the two were
capacitated to marry each other for there were no impediments but their marriage was void due
to the lack of a marriage license; in their situation, their property relations is governed by Art 147
of the FC which provides that everything they earned during their cohabitation is presumed to
have been equally contributed by each party – this includes salaries and wages earned by each
party notwithstanding the fact that the other may not have contributed at all.

CHING HUAT v. CO HEONG

77 Phil. 988

HILADO, J.:
Petitioner prays for the issuance of a writ of habeas corpus directing any lawful officer to take
from respondent and produce before this Court the person of Maria Ching alias Avelina Ching,
allegedly aged 15 years, and requiring the respondent to justify his right to the custody of said
minor, and, after hearing, to award said custody to petitioner.
It is alleged in the petition, verified by petitioner's oath, among other things, that the said minor is
his legitimate daughter; that up to June 21, 1946, said minor had been living with and had been
under the custody of petitioner; that respondent, taking advantage of his confidential and
spiritual relation with Maria Ching as her godfather, persuaded and induced her by means of
trick, promises and cajolery, to leave the parental home and to elope with him in the night of
June 21, 1946, to Plaridel, Bulacan, where they were married on the following day before the
Justice of the Peace of said municipality, said Maria Ching being at the time 15 years old; and
that ever since respondent has had the minor Maria Ching under his custody in Malolos,
Bulacan, and has restrained her of her liberty.
It is further alleged that respondent had been previously married in China to Gue Min, said
marriage being said to be subsisting at the time respondent married Maria Ching. Petitioner
further avers that Gue Min has never been declared an absentee nor generally considered as
dead and believed to be so by respondent at the time he married Maria Ching.
Respondent, in his answer, among other things, asserts that on June 21, 1946, he and Maria
Ching alias Avelina Ching were legally married before the Justice of the Peace of Plaridel,
Bulacan. He has attached to his answer a certificate (Appendix 1) of the Local Civil Registrar of
Plaridel, Bulacan, dated July 9, 1946, attesting the celebration of the marriage above mentioned
between the parties above named on June 21, 1946, and alleges that the essential requisites for
such marriage were complied with.
The question to be decided is whether petitioner still retains his right to the custody of his minor
daughter Maria Ching alias Avelina Ching.
The fact of the civil marriage between respondent and Maria Ching having been solemnized by
the Justice of the Peace of Plaridel, Bulacan, on June 21, 1946, is not disputed. Petitioner
himself alleges in his petition that respondent is of legal age, meaning 21 years or more old
upon the date of the petition, November 28, 1946. June 21, 1946, date of the marriage, was only
5 months and one week earlier. Both man and woman were, therefore, of marriageable age
under section 2 of Act No. 3613.
The alleged marriage of respondent to Gue Min in China has not been proven. There is no
allegation in the petition, much less is there evidence, to show that the said supposed marriage
was performed in accordance with the laws of China in force at the time of its supposed
performance, nor even what those laws were (Act No. 3613, section 19). The cited section of
the existing Marriage Law provides:
"SEC. 19. Marriages performed abroad. All marriages performed outside of the Philippine
Islands in accordance with the laws in force in the country where they were performed and valid
there as such, shall also be valid in these Islands."
This provision is substantially the same as that contained upon the same subject in the former
Philippine Marriage Law, General Orders No. 68, which is as follows:
"SEC. IV. All marriages contracted without these Islands, which would be valid by the laws of
the country in which the same were contracted, are valid in these Islands."
In the case of Adong vs. Cheong Seng Gee (43 Phil., 43 49), this Court held, after quoting the
aforesaid provision of the former Marriage Law:
"* * * To establish a valid foreign marriage pursuant to this comity provision, it is first necessary
to prove before the courts of the Islands the existence of the foreign law as a question of fact,
and it is then necessary to prove the alleged foreign marriage by convincing evidence."
In the same case of Adong vs. Cheong Seng Gee, this Court said (p. 50):
"In the case at bar there is no competent testimony as to what the laws of China in the Province
of Amoy concerning marriage were in 1895. As in the Encarnacion case (Sy Joc Lieng vs.
Encarnacion, 16 Phil., 137; 228 U. S., 335), there is lacking proof so clear, strong, and
unequivocal as to produce a moral conviction of the existence of the alleged prior Chinese
marriage. * * *"
Again in that case the United States Supreme Court (228 U. S., 335, 338-339) held:
"In these circumstances every presumption was in favor of the validity and good faith of the
Philippine marriage, and sound reason required that it be not impugned and discredited through
the alleged prior marriage save upon proof so clear, strong, and unequivocal as to produce a
moral conviction of the existence of that impediment. * * *"
On the other hand, the Philippine marriage between said respondent and Maria Ching before
the Justice of the Peace of Plaridel, Bulacan, is undisputed. It is also beyond question that that
marriage was contracted by a man much over 16 years old with a girl 15 years old (Act No.
3613, section 2), neither of whom was included in any of the exceptions mentioned in section 28
of the same Act; nor in those stated in section 29 thereof for the reason that the alleged prior
Chinese marriage has not been established.
If the supposed prior Chinese marriage had been sufficiently proven, then in order that the
subsequent Philippine marriage could be valid, it would have been necessary either (a) that the
Chinese marriage should have been previously annulled or dissolved: or (b) that the first wife of
respondent should have been absent for 7 consecutive years at the time of the second marriage
without the rer spondent having news of the absentee being alive; or (c) that the absentee
should have been generally considered as dead and believed to be so by respondent at the time
of contracting the subsequent marriage, in either of which last two cases the subsequent
marriage will be valid until declared null and void by a competent court, while in the first it will be
valid without this limitation. (Act No. 3613, section 29 [a] and [b]; section 30 [b].) But, as already
adverted to, the complete absence of proof of the supposed former Chinese marriage makes
sections 29 and 30 of the Marriage Law inapplicable.
Maria Ching having been validly married on June 21, 1946, she became emancipated on that
same date (arts. 314 [1] and 315, Civil Code). This emancipation brought about the loss by the
father of the parental authority that he claims. On the other hand, by article 48 of Chapter V of
the Spanish Marriage Law of 1870, whose articles 44 to 78 were, and are now partly, in force in
the Philippines (Benedicto vs. De la Rama, 3 Phil., 34), the wife has the duty, among others, of
living in her husband's company and of following him to wherever he transfers his domicile or
residence. (Yañez de Barnuevo vs. Fuster, 29 Phil., 606, 612.)
For all the foregoing considerations, we are of opinion that the petition should be, as it is hereby,
dismissed, with costs to petitioner. So ordered.
Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and Tuason, JJ.,
concur.
MORAN, C. J.:
I certify that Mr. Justice Padilla concurred in this decision.

Valdes vs. RTC

Valdes vs. RTC
260 SCRA 221
FACTS:
Antonio Valdez and Consuelo Gomez were married in 1971 and begotten 5 children. Valdez
filed a petition in 1992 for a declaration of nullity of their marriage pursuant to Article 36 of the
Family Code, which was granted hence, marriage is null and void on the ground of their mutual
psychological incapacity. Stella and Joaquin are placed under the custody of their mother while
the other 3 siblings are free to choose which they prefer.
*Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage , shall
likewise be void even if such incapacity becomes manifest only after its solemnization.( As
amended by E.O. No.227, dated July 17, 1987)
Gomez sought a clarification of that portion in the decision regarding the procedure for the
liquidation of common property in “unions without marriage”. During the hearing on the motion,
the children filed a joint affidavit expressing desire to stay with their father.
HELD:
The Supreme Court ruled that in a void marriage, regardless of the cause thereof, the property
relations of the parties are governed by the rules on co-ownership. Any property acquired
during the union is prima facie presumed to have been obtained through their joint efforts. A
party who did not participate in the acquisition of the property shall be considered as having
contributed thereto jointly if said party’s efforts consisted in the care and maintenance of the
family.
*prima facie- based on the first impression; accepted as correct until proved otherwise

SSS vs Teresita Jarque vda de Bailon

In 1955 Clemente Bailon and Alice Diaz married in Barcelona, Sorsogon. 15+ years later,
Clemente filed an action to declare the presumptive death of Alice she being an
absentee. The petition was granted in 1970. In 1983, Clemente married Jarque. The two
live together untile Clemente’s death in 1998. Jarque then sought to claim her husband’s
SSS benefits and the same were granted her. On the other hand, a certain Cecilia Baion-
Yap who claimed that she is the daughter of Bailon to a certain Elisa Jayona petitioned
before the SSS that they be given the reimbursement for the funeral spending for it was
actually them who shouldered the burial expenses of Clemente. They further claim that
Clemente contracted three marriages; one with Alice, another with Elisa and the other
with Jarque. Cecilia also averred that Alice is alive and kicking and Alice subsequently
emerged; Cecilia claimed that Clemente obtained the declaration of Alice’s
presumptive death in bad faith for he was aware of the whereabouts of Alice or if not he
could have easily located her in her parent’s place. She was in Sorsogon all along in her
parents’ place. She went there upon learning that Clemente had been having extra-
marital affairs. SSS then ruled that Jarque should reimburse what had been granted her
and to return the same to Cecilia since she shouldered the burial expenses and that the
benefits should go to Alice because her reappearance had terminated Clemente’s
marriage with Harque. Further, SSS ruled that the RTC’s decision in declaring Alice to be
presumptively death is erroneous. Teresita appealed the decision of the SSS before the
Social Security Comission and the SSC affirmed SSS. The CA however ruled the contrary.
ISSUE: Whether or not the mere appearance of the absent spouse declared
presumptively dead automatically terminates the subsequent marriage.
HELD: There is no previous marriage to restore for it is terminated upon Clemente’s death.
Likewise there is no subsequent marriage to terminate for the same is terminated upon
Clemente’s death. SSS is correct in ruling that it is futile for Alice to pursue the recording
of her reappearance before the local civil registrar through an affidavit or a court action.
But it is not correct for the SSS to rule upon the declaration made by the RTC. The SSC or
the SSS has no judicial power to review the decision of the RTC. SSS is indeed empowered
to determine as to who should be the rightful beneficiary of the benefits obtained by a
deceased member in case of disputes but such power does not include the appellate
power to review a court decision or declaration. In the case at bar, the RTC ruling is
binding and Jarque’s marriage to Clemente is still valid because no affidavit was filed by
Alice to make known her reappearance legally. Alice reappeared only after Clemente’s
death and in this case she can no longer file such an affidavit; in this case the bad faith
[or good faith] of Clemente can no longer be raised – the marriage herein is considered
voidable and must be attacked directly not collaterally – it is however impossible for a
direct attack since there is no longer a marriage to be attacked for the same has been
terminated upon Clemente’s death.

Arsenio de Loria vs Felipe Felix

G R No. L- 9005, June 20, 1958

Bengzon, J.:
FACTS: Matea dela Cruz and Felipe Felix lived together as wife and husband in Pasay
City. They acquired properties but had no children. Matea became seriously ill. Knowing
her critical condition, Carmen Ordiales and Judith Vizcarra visited and convinced her
to go for confession. They fetched Father Bautista, Catholic priest of Pasay and the
latter upon hearing the confession of the bed-ridden Matea and knowing that she is
living with Felipe without the benefit of marriage then ratified the union of the two by
solemnizing their marriage in articulo mortis with the consent of Felix. Matea recovered
from her illnes but died subsequently after few months. Arsenio and Ricarda de Loria,
granchildren of Matea’s sister filed a complaint and complete delivery of the property
of the deceased contending that they are the succeeding heirs of the deceased and
that the marriage of the latter is not valid because of lack of marriage contract signed
by the contracting parties. Felix resisted the action standing his rights as the widower.
CFI ruled in favor of the complainants but was reversed by the CA.

ISSUE:

Whether or not the marriage of Matea to Felix in articulo mortis is valid.

HELD:

YES. The marriage is valid. Its celebration in articulo mortis, where all the requisites are
present renders its validity. The failure of the solemnizing priest to make and file an
affidavit as required under Sec 20 and 21 of the Marriage Law does not affect the
validity nor renders the nullity of said marriage. Hence, CA’s devision is affirmed.

Republic vs CA and Castro

GR No. 103047, September 12, 1994

FACTS:

Angelina Castro, with her parents unaware, contracted a civil marriage with Edwin
Cardenas. They did not immediately live together and it was only upon Castro found
out that she was pregnant that they decided to live together wherein the said
cohabitation lasted for only 4 months. Thereafter, they parted ways and Castro gave
birth that was adopted by her brother with the consent of Cardenas.

The baby was brought in the US and in Castro’s earnest desire to follow her daughter
wanted to put in order her marital status before leaving for US. She filed a petition
seeking a declaration for the nullity of her marriage. Her lawyer then found out that
there was no marriage license issued prior to the celebration of their marriage proven
by the certification issued by the Civil Registrar of Pasig.

ISSUE: Whether or not the documentary and testimonial evidence resorted to by Castro
is sufficient to establish that no marriage license was issued to the parties prior to the
solemnization of their marriage.

HELD:
The court affirmed the decision of CA that the certification issued by the Civil Registrar
unaccompanied by any circumstances of suspicion sufficiently prove that the office did
not issue a marriage license to the contracting parties. Albeit the fact that the
testimony of Castro is not supported by any other witnesses is not a ground to deny her
petition because of the peculiar circumstances of her case. Furthermore, Cardenas
was duly served with notice of the proceedings, which he chose to ignore.

Under the circumstances of the case, the documentary and testimonial evidence
presented by private respondent Castro sufficiently established the absence of the
subject marriage license.

Chi Ming Tsoi vs CA

Chi Ming Tsoi vs. CA
GR No. 119190, January 16, 1997

FACTS:

Chi Ming Tsoi and Gina Lao Tsoi was married in 1988. After the celebration of their
wedding, they proceed to the house of defendant’s mother. There was no sexual
intercourse between them during their first night and same thing happened until their
fourth night. In an effort to have their honeymoon in a private place, they went to
Baguio but Gina’s relatives went with them. Again, there was no sexual intercourse
since the defendant avoided by taking a long walk during siesta or sleeping on a
rocking chair at the living room. Since May 1988 until March 1989 they slept together in
the same bed but no attempt of sexual intercourse between them. Because of this,
they submitted themselves for medical examination to a urologist in Chinese General
Hospital in 1989. The result of the physical examination of Gina was disclosed, while that
of the husband was kept confidential even the medicine prescribed. There were
allegations that the reason why Chi Ming Tsoi married her is to maintain his residency
status here in the country. Gina does not want to reconcile with Chi Ming Tsoi and want
their marriage declared void on the ground of psychological incapacity. On the other
hand, the latter does not want to have their marriage annulled because he loves her
very much, he has no defect on his part and is physically and psychologically capable
and since their relationship is still young, they can still overcome their differences. Chi
Ming Tsoi submitted himself to another physical examination and the result was there is
not evidence of impotency and he is capable of erection.

ISSUE: Whether Chi Ming Tsoi’s refusal to have sexual intercourse with his wife constitutes
psychological incapacity.
HELD:

The abnormal reluctance or unwillingness to consummate his marriage is strongly

indicative of a serious personality disorder which to the mind of the Supreme Court
clearly demonstrates an utter insensitivity or inability to give meaning and significance
tot the marriage within the meaning of Article 36 of the Family Code.

If a spouse, although physically capable but simply refuses to perform his or her essential
marital obligations and the refusal is senseless and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity than to stubborn refusal. Furthermore,
one of the essential marital obligations under the Family Code is to procreate children
thus constant non-fulfillment of this obligation will finally destroy the integrity and
wholeness of the marriage.

THIRD DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 165545

Petitioner,
Present:

QUISUMBING, Chairperson,*
-versus- CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

TERESITA JARQUE VDA. DE BAILON,

Respondent. Promulgated:

March 24, 2006

x----------------------------------------------x

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision[1] dated June 23, 2004[2] and Resolution dated
September 28, 2004[3] reversing the Resolution dated April 2, 2003[4] and Order dated
June 4, 2003[5] of the Social Security Commission (SSC) in SSC Case No. 4-15149-01 are
challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted
marriage in Barcelona, Sorsogon.[6]
 More than 15 years later or on October 9, 1970, Bailon filed before the then Court
of First Instance (CFI) of Sorsogon a petition[7] to declare Alice presumptively dead.

By Order of December 10, 1970,[8] the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition

notwithstanding the publication of the Notice of Hearing in a newspaper of
general circulation in the country, Alice Diaz is hereby declared to [sic] all
legal intents and purposes, except for those of succession, presumptively
dead.

SO ORDERED.[9] (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or
on August 8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in
Casiguran, Sorsogon.[10]

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS)
since 1960 and a retiree pensioner thereof effective July 1994, died.[11]

Respondent thereupon filed a claim for funeral benefits, and was

granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for death

benefits[13] which was also granted by the SSS on April 6, 1998.[14]

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa
Jayona (Elisa) contested before the SSS the release to respondent of the death and
funeral benefits. She claimed that Bailon contracted three marriages in his lifetime, the
first with Alice, the second with her mother Elisa, and the third with respondent, all of
whom are still alive; she, together with her siblings, paid for Bailons medical and funeral
expenses; and all the documents submitted by respondent to the SSS in support of her
claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma)
submitted an Affidavit dated February 13, 1999[15] averring that they are two of nine
children of Bailon and Elisa who cohabited as husband and wife as early as 1958; and
they were reserving their right to file the necessary court action to contest the marriage
between Bailon and respondent as they personally know that Alice is still very much
alive.[16]

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the

brother and guardian of Aliz P. Diaz, filed before the SSS a claim for death benefits
accruing from Bailons death,[17] he further attesting in a sworn statement[18] that it was
Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children[19] subsequently filed claims for death benefits as
Bailons beneficiaries before the SSS.[20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City
recommended the cancellation of payment of death pension benefits to respondent
and the issuance of an order for the refund of the amount paid to her from February 1998
to May 1999 representing such benefits; the denial of the claim of Alice on the ground
that she was not dependent upon Bailon for support during his lifetime; and the payment
of the balance of the five-year guaranteed pension to Bailons beneficiaries according
to the order of preference provided under the law, after the amount erroneously paid to
respondent has been collected. The pertinent portions of the Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled
by misrepresentation in declaring the first wife, Aliz [sic] Diaz, as
presumptively dead.

xxxx

x x x the Order of the court in the Petition to Declare Alice Diaz

Presumptively Dead, did not become final. The presence of Aliz [sic] Diaz, is
contrary proof that rendered it invalid.
xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic]
Diaz. He, being in bad faith, and is the deserting spouse, his remarriage is
void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse
and who remarried, thus his marriage to Teresita Jarque, for the second time
was void as it was bigamous. To require affidavit of reappearance to
terminate the second marriage is not necessary as there is no
disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic],
to speak of.[21] (Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,[22] advised
respondent that as Cecilia and Norma were the ones who defrayed Bailons funeral
expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999,[23] the SSS advised respondent of the
cancellation of her monthly pension for death benefits in view of the opinion rendered
by its legal department that her marriage with Bailon was void as it was contracted while
the latters marriage with Alice was still subsisting; and the December 10, 1970 CFI Order
declaring Alice presumptively dead did not become final, her presence being contrary
proof against the validity of the order. It thus requested respondent to return the amount
of P24,000 representing the total amount of monthly pension she had received from the
SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death benefits
by letter to the SSS dated October 12, 1999.[24] In a subsequent letter dated November
27, 1999[25] to the SSC, she reiterated her request for the release of her monthly pension,
asserting that her marriage with Bailon was not declared before any court of justice as
bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and
purposes as in fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000,[26] maintained
the denial of her claim for and the discontinuance of payment of monthly pension. It
advised her, however, that she was not deprived of her right to file a petition with the
SSC.

Respondent thus filed a petition[27] against the SSS before the SSC for the restoration
to her of her entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under
protest, the amount of P12,000 representing the funeral benefits she received, she
alleging that Norma and her siblings forcibly and coercively prevented her from spending
any amount during Bailons wake.[28]

After the SSS filed its Answer[29] to respondents petition, and the parties filed their
respective Position Papers, one Alicia P. Diaz filed an Affidavit[30] dated August 14, 2002
with the SSS Naga Branch attesting that she is the widow of Bailon; she had only recently
come to know of the petition filed by Bailon to declare her presumptively dead; it is not
true that she disappeared as Bailon could have easily located her, she having stayed at
her parents residence in Barcelona, Sorsogon after she found out that Bailon was having
an extramarital affair; and Bailon used to visit her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to
Bailon was void and, therefore, she was just a common-law-wife. Accordingly it disposed
as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner

Teresita Jarque-Bailon is not the legitimate spouse and primary beneficiary
of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the

amount of P24,000.00 representing the death benefit she received
therefrom for the period February 1998 until May 1999 as well as P12,000.00
representing the funeral benefit.
 The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the
appropriate death benefit arising from the demise of SSS member Clemente
Bailon in accordance with Section 8(e) and (k) as well as Section 13 of the
SS Law, as amended, and its prevailing rules and regulations and to inform
this Commission of its compliance herewith.

SO ORDERED.[31] (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this

Commission comes to the inevitable conclusion that the petitioner is not the
legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to the

declaration of the then CFI of Sorsogon (10th Judicial District), the first wife
never disappeared as the deceased member represented in bad faith. This
Commission accords credence to the findings of the SSS contained in its
Memorandum dated August 9, 1999,[32] revealing that Alice (a.k.a. Aliz) Diaz
never left Barcelona, Sorsogon, after her separation from Clemente Bailon
x x x.
As the declaration of presumptive death was extracted by the
deceased member using artifice and by exerting fraud upon the
unsuspecting court of law, x x x it never had the effect of giving the
deceased member the right to marry anew. x x x [I]t is clear that the
marriage to the petitioner is void, considering that the first marriage on April
25, 1955 to Alice Diaz was not previously annulled, invalidated or otherwise
dissolved during the lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the

petitioner was just a common-law wife of the deceased member, it
necessarily follows that she is not entitled as a primary beneficiary, to the
latters death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate
surviving spouse and primary beneficiary of Clemente Bailon, it behooves
her to refund the total amount of death benefit she received from the SSS
for the period from February 1998 until May 1999 pursuant to the principle
of solutio indebiti x x x
 Likewise, it appearing that she was not the one who actually defrayed
the cost of the wake and burial of Clemente Bailon, she must return the
amount of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.[33] (Underscoring supplied)

Respondents Motion for Reconsideration[34] having been denied by Order of June

4, 2003, she filed a petition for review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2,
2003 Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to pay
respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of

whether or not the decision of the then CFI, now RTC, declaring Alice Diaz
presumptively dead has attained finality but, more importantly, whether or
not the respondents SSS and Commission can validly re-evaluate the findings
of the RTC, and on its own, declare the latters decision to be bereft of any
basis. On similar import, can respondents SSS and Commission validly
declare the first marriage subsisting and the second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person presumptively

dead never attains finality as the finding that the person is unheard of in
seven years is merely a presumption juris tantum, the second marriage
contracted by a person with an absent spouse endures until annulled. It is
only the competent court that can nullify the second marriage pursuant to
Article 87 of the Civil Code and upon the reappearance of the missing
spouse, which action for annulment may be filed. Nowhere does the law
contemplates [sic] the possibility that respondent SSS may validly declare
the second marriage null and void on the basis alone of its own investigation
and declare that the decision of the RTC declaring one to be presumptively
dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to review the
decision of the regular courts under the pretext of determining the actual
and lawful beneficiaries of its members.Notwithstanding its opinion as to the
soundness of the findings of the RTC, it should extend due credence to the
decision of the RTC absent of [sic] any judicial pronouncement to the
contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the

authority to declare the decision of the RTC to be without basis, the
procedure it followed was offensive to the principle of fair play and thus its
findings are of doubtful quality considering that petitioner Teresita was not
given ample opportunity to present evidence for and her behalf.
 xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of

Reappearance with the Civil Registry is no longer practical under the
premises. Indeed, there is no more first marriage to restore as the marital
bond between Alice Diaz and Clemente Bailon was already terminated
upon the latters death. Neither is there a second marriage to terminate
because the second marriage was likewise dissolved by the death of
Clemente Bailon.

However, it is not correct to conclude that simply because the filing of

the Affidavit of Reappearance with the Civil Registry where parties to the
subsequent marriage reside is already inutile, the respondent SSS has now
the authority to review the decision of the RTC and consequently declare
the second marriage null and void.[36] (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration [37] which
were both denied for lack of merit.

Hence, the SSS present petition for review on certiorari[38] anchored on the
following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION

AMOUNTING TO LACK OF JURISDICTION.[39]

The SSS faults the CA for failing to give due consideration to the findings of facts of
the SSC on the prior and subsisting marriage between Bailon and Alice; in disregarding
the authority of the SSC to determine to whom, between Alice and respondent, the
death benefits should be awarded pursuant to Section 5[40] of the Social Security Law;
and in declaring that the SSS did not give respondent due process or ample opportunity
to present evidence in her behalf.

The SSS submits that the observations and findings relative to the CFI proceedings
are of no moment to the present controversy, as the same may be considered only
as obiter dicta in view of the SSCs finding of the existence of a prior and subsisting
marriage between Bailon and Alice by virtue of which Alice has a better right to the
death benefits.[41]
 The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage,
benefits and contributions, there is no doubt. In so exercising such power, however, it
cannot review, much less reverse, decisions rendered by courts of law as it did in the case
at bar when it declared that the December 10, 1970 CFI Order was obtained through
fraud and subsequently disregarded the same, making its own findings with respect to
the validity of Bailon and Alices marriage on the one hand and the invalidity of Bailon
and respondents marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as an
appellate court. The law does not give the SSC unfettered discretion to trifle with orders
of regular courts in the exercise of its authority to determine the beneficiaries of the SSS.

The two marriages involved herein having been solemnized prior to the effectivity
on August 3, 1988 of the Family Code, the applicable law to determine their validity is the
Civil Code which was the law in effect at the time of their celebration.[42]

Article 83 of the Civil Code[43] provides:

Art. 83. Any marriage subsequently contracted by any person during

the lifetime of the first spouse of such person with any person other than such
first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at
the time of the second marriage without the spouse present having news of
the absentee being alive, or if the absentee, though he has been absent for
less than seven years, is generally considered as dead and believed to be
so by the spouse present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead according to Articles 390 and
391. The marriage so contracted shall be valid in any of the three cases until
declared null and void by a competent court. (Emphasis and underscoring
supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage

contracted during the lifetime of the first spouse is illegal and void ab initio unless the
prior marriage is first annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage under any of these
exceptional cases is deemed valid until declared null and void by a competent court. It
follows that the onus probandi in these cases rests on the party assailing the second
marriage.[44]

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive
years[45] when Bailon sought the declaration of her presumptive death, which judicial
declaration was not even a requirement then for purposes of remarriage.[46]

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a

presumption arises in favor of the validity of the second marriage, and the
burden is on the party attacking the validity of the second marriage to prove
that the first marriage had not been dissolved; it is not enough to prove the
first marriage, for it must also be shown that it had not ended when the
second marriage was contracted. The presumption in favor of the innocence
of the defendant from crime or wrong and of the legality of his second
marriage, will prevail over the presumption of the continuance of life of the
first spouse or of the continuance of the marital relation with such first
spouse.[47] (Underscoring supplied)

Under the Civil Code, a subsequent marriage being voidable,[48] it is terminated

by final judgment of annulment in a case instituted by the absent spouse who reappears
or by either of the spouses in the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent marriage is

necessary. Thus Article 42 thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article

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. (Emphasis and underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-

quoted provision of the Family Code does not preclude the filing of an action in court to
prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage.[49]

If the absentee reappears, but no step is taken to terminate the subsequent

marriage, either by affidavit or by court action, such absentees mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate such
marriage.[50] Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of the
spouses physical reappearance, and by fiction of law, he or she must still be regarded
as legally an absentee until the subsequent marriage is terminated as provided by
law.[51]

If the subsequent marriage is not terminated by registration of an affidavit of

reappearance or by judicial declaration but by death of either spouse as in the case at
bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of

either spouse, the effects of dissolution of valid marriages shall arise. The
good or bad faith of either spouse can no longer be raised, because, as in
annullable or voidable marriages, the marriage cannot be questioned
except in a direct action for annulment.[52] (Underscoring supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

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.[54] (Emphasis and underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except

in a direct proceeding. Consequently, such marriages can be assailed only during the
lifetime of the parties and not after the death of either, in which case the parties and their
offspring will be left as if the marriage had been perfectly valid.[55] Upon the death of
either, the marriage cannot be impeached, and is made good ab initio.[56]

In the case at bar, as no step was taken to nullify, in accordance with law, Bailons
and respondents marriage prior to the formers death in 1998, respondent is rightfully the
dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised has been
rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE)

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

DANTE O. TINGA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Acting Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9005 June 20, 1958

ARSENIO DE LORIA and RICARDA DE LORIA, petitioners,

vs.
FELIPE APELAN FELIX, respondent.

Guido Advincula and Nicanor Lapuz for petitioners.

Nicodemus L. Dasig for respondent.

BENGZON, J.:

Review of a decision of the Court of Appeals, involving the central issue of the validity of
the marriage in articulo mortis between Matea de la Cruz and Felipe Apelan Felix.

It appears that long before, and during the War of the Pacific, these two persons lived
together as wife and husband at Cabrera Street, Pasay City. They acquired properties
but had no children. In the early part of the liberation of Manila and surrounding territory,
Matea be came seriously ill. Knowing her critical condition, two young ladies of legal age
dedicated to the service of God, named Carmen Ordiales and Judith Vizcarra1 visited
and persuaded her to go to confession. They fetched Father Gerardo Bautista, Catholic
parish priest of Pasay. The latter, upon learning that the penitent had been living with
Felipe Apelan Felix without benefit of marriage, asked both parties to ratify their union
according to the rites of his Church. Both agreed. Whereupon the priest heard the
confession of the bed-ridden old woman, gave her Holy Communion, administered the
Sacrament of Extreme Unction and then solemnized her marriage with Felipe Apelan
Felix in articulo mortis,2 Carmen Ordiales and Judith Vizcarra acting as sponsors or
witnesses. It was then January 29 or 30, 1945.

After a few months, Matea recovered from her sickness; but death was not to be denied,
and in January 1946, she was interred in Pasay, the same Fr. Bautista performing the burial
ceremonies.

On May 12, 1952, Arsenio de Loria and Ricarda de Loria filed this complaint to compel
defendant to an accounting and to deliver the properties left by the deceased. They are
grandchildren of Adriana de la Cruz, sister of Matea, and claim to be the only surviving
forced heirs of the latter. Felipe Apelan Felix resisted the action, setting up his rights as
widower. They obtained favorable judgment in the court of first instance, but on appeal
the Court of Appeals reversed and dismissed the complaint.

Their request for review here was given due course principally to consider the legal
question-which they amply discussed in their petition and printed brief — whether the
events which took place in January 1945 constituted, in the eyes of the law, a valid and
binding marriage.

According to the Court of Appeals:

There is no doubt at all in the mind of this Court, that Fr. Gerardo Bautista, solemnized the
marriage in articulo mortis of Defendant Apelan Felix and Matea de la Cruz, on January
29 and 30, 1945, under the circumstances set forth in the reverend's testimony in court. Fr.
Bautista, a respectable old priest of Pasay City then, had no reason to side one or the
other. . . . Notwithstanding this positive evidence on the celebration or performance of
the marriage in question, Plaintiffs-Appellees contend that the same was not in articulo
mortis, because Matea de la Cruz was not then on the point of death. Fr. Bautista clearly
testified, however, that her condition at the time was bad; she was bed-ridden; and
according to his observation, she might die at any moment (Exhibit 1), so apprehensive
was he about her condition that he decided in administering to her the sacrament of
extreme unction, after hearing her confession. . . . .The greatest objection of the
Appellees and the trial court against the validity of the marriage under consideration, is
the admitted fact that it was not registered.

The applicable legal provisions are contained in the Marriage Law of 1929 (Act No. 3613)
as amended by Commonwealth Act No. 114 (Nov. 1936) specially sections 1, 3, 20 and
21.

There is no question about the officiating priest's authority to solemnize marriage. There is
also no question that the parties had legal capacity to contract marriage, and that both
declared before Fr. Bautista and Carmen Ordiales and Judith Vizcarra that "they took
each other as husband and wife."

The appellants' contention of invalidity rests on these propositions:

(a) There was no "marriage contract" signed by the wedded couple the witnesses and
the priest, as required by section 3 of the Marriage Law; and

(b) The priest filed no affidavit, nor recorded the marriage with the local civil registry.

The factual basis of the first proposition — no signing — may seriously be doubted. The
Court of Appeals made no finding thereon. Indeed if anything, its decision impliedly held
such marriage contract to have been executed, since it said "the marriage in articulo
mortis was a fact", and the only question at issue was whether "the failure of Fr. Bautista
to send copies of the certificate of marriage in question to the Local Civil Registrar and
to register the said marriage in the Record of Marriages of the Pasay Catholic Church . . .
renders the said marriage invalid." And such was the only issue tendered in the court of
first instance. (See p. 14, 34, Record on Appeal.)

However, we may as well face this second issue: Does the failure to sign the "marriage
certificate or contract" constitute a cause for nullity?

Marriage contract is the "instrument in triplicate" mentioned in sec. 3 of the Marriage Law
which provides:

Sec. 3. Mutual Consent. — No particular form for the ceremony of marriage is required,
but the parties with legal capacity to contract marriage must declare, in the presence
of the person solemnizing the marriage and of two witnesses of legal age, that they take
each other as husband and wife. This declaration shall be set forth in an instrument in
triplicate, signed by signature or mark by the contracting parties and said two witnesses
and attested by the person solemnizing the marriage. . . . (Emphasis ours).

In the first place, the Marriage Law itself, in sections 28, 29 and 30 enumerates the causes
for annulment of marriage. Failure to sign the marriage contract is not one of them.

In the second place, bearing in mind that the "essential requisites for marriage are the
legal capacity of the contracting parties and their consent" (section 1), the latter being
manifested by the declaration of "the parties" "in the presence of the person solemnizing
the marriage and of two witnesses of legal age that they take each other as husband
and wife" — which in this case actually occurred.3 We think the signing of the marriage
contract or certificate was required by the statute simply for the purpose of evidencing
the act.4 No statutory provision or court ruling has been cited making it
an essential requisite — not the formal requirement of evidentiary value, which we
believe it is. The fact of marriage is one thing; the proof by which it may be established is
quite another.

Certificate and Record. — Statutes relating to the solemnization of marriage usually

provide for the issuance of a certificate of marriage and for the registration or recording
of marriage . . . Generally speaking, the registration or recording of a marriage is not
essential to its validity, the statute being addressed to the officials issuing the license,
certifying the marriage, and making the proper return and registration or recording. (Sec.
27 American Jurisprudence "Marriage" p. 197-198.)

Formal Requisites. — . . . The general rule, however, is that statutes which direct that a
license must be issued and procured, that only certain persons shall perform the
ceremony, that a certain number of witnesses shall be present, that a certificate of the
marriage shall be signed, returned, and recorded, and that persons violating the
conditions shall be guilty of a criminal offense, are addressed to persons in authority to
secure publicity and to require a record to be made of the marriage contract. Such
statutes do not void common-law marriages unless they do so expressly, even where such
marriage are entered into without obtaining a license and are not recorded. It is the
purpose of these statutes to discourage deception and seduction, prevent illicit
intercourse under the guise of matrimony, and relieve from doubt the status of parties
who live together as man and wife, by providing competent evidence of the
marriage. . . . (Section 15 American Jurisprudence "Marriage" pp. 188-189.) Emphasis Ours.
(See also Corpus Juris Secundum "Marriage" Sec. 33.)

And our law says, "no marriage shall be declared invalid because of the absence of one
or several formal requirements of this Act . . . ." (Section 27.)

In the third place, the law, imposing on the priest the duty to furnish to the parties copies
of such marriage certificate (section 16) and punishing him for its omission (section 41)
implies his obligation to see that such "certificate" is executed accordingly. Hence, it
would not be fair to visit upon the wedded couple in the form of annulment, Father
Bautista's omission, if any, which apparently had been caused by the prevailing disorder
during the liberation of Manila and its environs.

Identical remarks apply to the priest's failure to make and file the affidavit required by
sections 20 and 21. It was the priest's obligation; non-compliance with it, should bring no
serious consequences to the married pair, specially where as in this case, it was caused
by the emergency.

The mere fact that the parish priest who married the plaintiff's natural father and mother,
while the latter was in articulo mortis, failed to send a copy of the marriage certificate to
the municipal secretary, does not invalidate said marriage, since it does not appear that
in the celebration thereof all requisites for its validity were not present, the forwarding of
a copy of the marriage certificate not being one of the requisites. (Jones vs. Hortiguela,
64 Phil. 179.) See also Madridejo vs. De Leon, 55 Phil. 1.

The law permits in articulo mortis marriages, without marriage license; but it requires the
priest to make the affidavit and file it. Such affidavit contains the data usually required
for the issuance of a marriage license. The first practically substitutes the latter. Now then,
if a marriage celebrated without the license is not voidable (under Act 3613), 5 this
marriage should not also be voidable for lack of such affidavit.

In line with the policy to encourage the legalization of the union of men and women who
have lived publicly in a state of concubinage6, (section 22), we must hold this marriage
to be valid.
The widower, needless to add, has better rights to the estate of the deceased than the
plaintiffs who are the grandchildren of her sister Adriana. "In the absence of brothers or
sisters and of nephews, children of the former, . . . the surviving spouse . . . shall succeed
to the entire estate of the deceased. (Art 952, Civil Code.)

Wherefore, the Court of Appeals' decision is affirmed, with costs. So ordered.

Paras, C. J., Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L.,
Endencia, and Felix, JJ.,concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103047 September 2, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.

Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

PUNO, J.:

The case at bench originated from a petition filed by private respondent Angelina M.
Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of nullity
of her marriage to Edwin F. Cardenas.1 As ground therefor, Castro claims that no
marriage license was ever issued to them prior to the solemnization of their marriage.

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he
was declared in default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil
ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The
marriage was celebrated without the knowledge of Castro's parents. Defendant
Cardenas personally attended to the processing of the documents required for the
celebration of the marriage, including the procurement of the marriage, license. In fact,
the marriage contract itself states that marriage license no. 3196182 was issued in the
name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since the marriage
was unknown to Castro's parents. Thus, it was only in March 1971, when Castro discovered
she was pregnant, that the couple decided to live together. However, their cohabitation
lasted only for four (4) months. Thereafter, the couple parted ways. On October 19, 1971,
Castro gave birth. The baby was adopted by Castro's brother, with the consent of
Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted to
put in order her marital status before leaving for the States. She thus consulted a lawyer,
Atty. Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through her
lawyer's efforts, they discovered that there was no marriage license issued to Cardenas
prior to the celebration of their marriage.

As proof, Angelina Castro offered in evidence a certification from the Civil Register of
Pasig, Metro Manila. It reads:

February 20, 1987

TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO who were
allegedly married in the Pasay City Court on June 21, 1970 under an alleged
(s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located as
said license no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio.

(Sgd) CENONA D. QUINTOS

Senior Civil Registry Officer

Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970
in order to apply for a license. Neither did she sign any application therefor. She affixed
her signature only on the marriage contract on June 24, 1970 in Pasay City.

The trial court denied the petition. 2 It held that the above certification was inadequate
to establish the alleged non-issuance of a marriage license prior to the celebration of the
marriage between the parties. It ruled that the "inability of the certifying official to locate
the marriage license is not conclusive to show that there was no marriage license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She
insisted that the certification from the local civil registrar sufficiently established the
absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial court. 3 It
declared the marriage between the contracting parties null and void and directed the
Civil Registrar of Pasig to cancel the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when
it ruled that the certification issued by the civil registrar that marriage license no. 3196182
was not in their record adequately proved that no such license was ever issued. Petitioner
also faults the respondent court for relying on the self-serving and uncorroborated
testimony of private respondent Castro that she had no part in the procurement of the
subject marriage license. Petitioner thus insists that the certification and the
uncorroborated testimony of private respondent are insufficient to overthrow the legal
presumption regarding the validity of a marriage.

Petitioner also points that in declaring the marriage between the parties as null and void,
respondent appellate court disregarded the presumption that the solemnizing officer,
Judge Pablo M. Malvar, regularly performed his duties when he attested in the marriage
contract that marriage license no. 3196182 was duly presented to him before the
solemnization of the subject marriage.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and
testimonial evidence presented by private respondent are sufficient to establish that no
marriage license was issued by the Civil Registrar of Pasig prior to the celebration of the
marriage of private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing
marital relations was the New Civil Code. The law 4 provides that no marriage shall be
solemnized without a marriage license first issued by a local civil registrar. Being one of
the essential requisites of a valid marriage, absence of a license would render the
marriage void ab initio. 5

Petitioner posits that the certification of the local civil registrar of due search and inability
to find a record or entry to the effect that marriage license no. 3196182 was issued to the
parties is not adequate to prove its non-issuance.

We hold otherwise. The presentation of such certification in court is sanctioned by Section

29, Rule 132 of the Rules of Court, viz.:

Sec. 29. Proof of lack of record. — A written statement signed by an officer having
custody of an official record or by his deputy, that after diligent search, no record or entry
of a specified tenor is found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that the records of his office
contain no such record or entry.

The above Rule authorized the custodian of documents to certify that despite diligent
search, a particular document does not exist in his office or that a particular entry of a
specified tenor was not to be found in a register. As custodians of public documents, civil
registrars are public officers charged with the duty, inter alia, of maintaining a register
book where they are required to enter all applications for marriage licenses, including
the names of the applicants, the date the marriage license was issued and such other
relevant data. 6
The certification of "due search and inability to find" issued by the civil registrar of Pasig
enjoys probative value, he being the officer charged under the law to keep a record of
all data relative to the issuance of a marriage license. Unaccompanied by any
circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a
certificate of "due search and inability to find" sufficiently proved that his office did not
issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her
petition is, in itself, not a ground to deny her petition. The failure to offer any other witness
to corroborate her testimony is mainly due to the peculiar circumstances of the case. It
will be remembered that the subject marriage was a civil ceremony performed by a
judge of a city court. The subject marriage is one of those commonly known as a "secret
marriage" — a legally non-existent phrase but ordinarily used to refer to a civil marriage
celebrated without the knowledge of the relatives and/or friends of either or both of the
contracting parties. The records show that the marriage between Castro and Cardenas
was initially unknown to the parents of the former.

Surely, the fact that only private respondent Castro testified during the trial cannot be
held against her. Her husband, Edwin F. Cardenas, was duly served with notice of the
proceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the
same. For failure to answer, he was properly declared in default. Private respondent
cannot be faulted for her husband's lack of interest to participate in the proceedings.
There was absolutely no evidence on record to show that there was collusion between
private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage
between the contracting parties is null and void for lack of a marriage license does not
discount the fact that indeed, a spurious marriage license, purporting to be issued by the
civil registrar of Pasig, may have been presented by Cardenas to the solemnizing officer.

In fine, we hold that, under the circumstances of the case, the documentary and
testimonial evidence presented by private respondent Castro sufficiently established the
absence of the subject marriage license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error
committed by respondent appellate court.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

BEDDOW
v.
BEDDOW'S ADM'R

STEWART, Justice.
This appeal involves the legality of the appointment of the surviving widow's nominee as
administrator of the estate of Robert L. Beddow, deceased.

The background of this case is that Robert L. Beddow died intestate, a resident of Boyle
County, on June 15, 1951, leaving a substantial estate of real and personal property.
Besides his wife, Josephine Epperson Beddow, he was survived by a brother, Thomas
Beddow, a sister, Mrs. Mary Griffin, and a nephew, Charles Beddow, the son of a
deceased sister. On April 28, 1952, James H. Sparrow, Jr., filed a verified application in
the Boyle County Court, seeking appointment as administrator of the decedent's estate
and, at the same time, the surviving wife waived her right to act in this capacity and
requested the court to name Sparrow for the trust. On the same day a like application
was made by the Citizens National Bank of Danville. Eight days later, or on May 6, 1952,
Thomas Beddow filed his application for the appointment.

Upon the disqualification of the regular county judge, the Honorable Edgar C. Newlin,
appointed specially to try this case, after proper notice, held a hearing on the various
applications and rendered a decision by appointing Sparrow as the administrator and
dismissing the other two applications. Thomas L. Beddow immediately superseded the
order entered in the county court and appealed therefrom to the Boyle Circuit Court
where on September 20, 1952, his case was dismissed. He has brought his appeal to this
Court for a final adjudication.

The foregoing development is a sequel to the litigation reported in Beddow v. Beddow,

Ky., 257 S.W.2d 45, wherein the validity of the marriage of the decedent and his wife
was and still is under attack. The petition in the former appeal alleged, in part, that
when the above marriage was consummated on January 30, 1950, at Columbus,
Mississippi, Robert L. Beddow was insane. A demurrer was filed to the petition and
sustained, which we held to be error. In the opinion we handed down we declared that
if the decedent were in reality insane at the time of the marriage the union would be
void as against the public policy of this Commonwealth, in spite of the fact that such a
marriage is only voidable in the state of Mississippi. Up to now, in so far as we have been
able to ascertain, the question of the decedent's insanity as of the date of his marriage
is still an issue awaiting determination in the lower court.

Appellant argues at the outset that because the widow may, in the action we have
just discussed, be eventually adjudged not to be the wife of the decedent, she is
thereby deprived of her first preference to qualify or in the alternative to designate a
suitable administrator in her stead, pursuant to KRS 395.040. This same contention was
made and answered in Hood v. Higgins' Curator, 225 Ky. 718,9 S.W.2d 1078, 1080. In that
case, the decedent died intestate and his adopted daughter made timely application
for appointment as administratrix. Neither a widow nor a natural child survived. Certain
relatives and creditors objected to the appointment on the ground that a suit was
pending to vacate the judgment of adoption and that until such suit had been
decided the adopted daughter should not be permitted to exercise any rights she had
acquired by reason of her adoption. The county court refused to honor her application
and the circuit court affirmed this action. On appeal, this Court reversed the lower
court, holding that until the judgment of adoption was voided no other court could
refuse to recognize it or defeat the right conferred by it. In that case we gave this
cogent reason for our decision: "* * * Otherwise, the rights of such person could be
indefinitely suspended by a mere action assailing his rights, leaving him without remedy
if the suit ultimately failed of its purpose." The result is we must accept the marriage in
question as being in full force and effect and we cannot ignore the legal implications
that flow from this relationship.

Appellant next poses this question: Shall the widow, whom he contends is hostile to the
decedent's heirs, be allowed to dictate the appointment of the administrator when her
petition was not filed within two county court terms after her husband's death?

KRS 395.040 provides:

"(1) The court shall grant administration to the relations of the deceased who apply for
administration, preferring the surviving husband or wife, and then such others as are
next entitled to distribution, or one or more of them whom the court judges will best
manage the estate.

"(2) If no person mentioned in subsection (1) applies for administration at the second
county court from the death of an intestate, the court may grant administration to a
creditor, or to any other person, in its discretion."

Sparrow maintains subsection (1) compelled the court to observe the precedence
prescribed therein, although the making of his application was delayed beyond the
second county court term. To support his position he cites Hunt v. Crocker, 246 Ky.
338, 55 S.W.2d 20, wherein we declared that the order of preference set forth in
subsection (1) must be followed, and Treas v. Treas, Ky., 240 S.W.2d 593, wherein we
held that the widow, having waived her right to the appointment, could designate a
stranger in lieu of a relative of the decedent. In each of these cases a timely
application was made, so that subsection (2) did not enter into the picture. In the case
at bar, it is apparent the wife's preference to act or to designate had lapsed;
nevertheless, the court respected her choice of a personal representative and this it
had the right to do "in its discretion" under subsection (2).

Appellant, relying upon Mullins v. Mullins, 307 Ky. 748, 212 S.W.2d 272, claims the instant
appointment amounts to an abuse of discretion. That opinion was to the effect that the
county court need not extend preference to a surviving wife who failed to meet the
statutory requirements, and it also involved the application of a wife and not, as here,
her nomination of a stranger for letters of administration. Moreover, the court's
appointment there, just as the appointment in issue in this litigation, was bottomed upon
its sound discretion. Thus we have no conflict between that case and the one under
consideration.

This brings us to the question of whether the county court, which is vested with exclusive
jurisdiction in the granting of letters of administration, abused its discretion in making the
appointment of Sparrow as the herein personal representative. We are limited only to a
review of the action of the court in making such an appointment and we may not
interfere therewith except where the court has exceeded or misused its powers.
Gresham v. Stacy, 287 Ky. 114, 152 S.W.2d 290. Appellant has utterly failed to show any
act of the court as regards the appointment which in any way transcends its powers or
constitutes an abuse of its discretion. Appellee is employed by the Farmers National
Bank of Danville as its trust officer and in this capacity he handles practically all the
bank's fiduciary accounts. He has been in the banking business since 1925. Upon his
being appointed as administrator he was able to execute the bond required of him in
the penal sum of $190,000, signed by an approved surety. Nor has appellant been able
to establish any antagonistic attitude on his part toward any of the heirs of the
decedent nor any other reason that might disqualify him. Thus it appears that Sparrow is
a suitable person to perform the responsibility imposed upon him.

Wherefore, the judgment is affirmed.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate. Over time, much reliance has been
placed in the works of the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband
in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of
the marriage on the ground of psychological incapacity. Petitioner appealed the
decision of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which
affirmed the Trial Court's decision November 29, 1994 and correspondingly denied the
motion for reconsideration in a resolution dated February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by
the Court of Appeals1 its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila
Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")
After the celebration of their marriage and wedding reception at the South Villa, Makati,
they went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their
married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they
were supposed to enjoy making love, or having sexual intercourse, with each other, the
defendant just went to bed, slept on one side thereof, then turned his back and went to
sleep . There was no sexual intercourse between them during the first night. The same
thing happened on the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together
during their first week as husband and wife, they went to Baguio City. But, they did so
together with her mother, an uncle, his mother and his nephew. They were all invited by
the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this
period, there was no sexual intercourse between them, since the defendant avoided her
by taking a long walk during siesta time or by just sleeping on a rocking chair located at
the living room. They slept together in the same room and on the same bed since May
22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not: even see her husband's private
parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband
which was also kept confidential. No treatment was given to her. For her husband, he
was asked by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not
show his penis. She said, that she had observed the defendant using an eyebrow pencil
and sometimes the cleansing cream of his mother. And that, according to her, the
defendant married her, a Filipino citizen, to acquire or maintain his residency status here
in the country and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled
by reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he
is physically and psychologically capable; and, (3) since the relationship is still very young
and if there is any differences between the two of them, it can still be reconciled and
that, according to him, if either one of them has some incapabilities, there is no certainty
that this will not be cured. He further claims, that if there is any defect, it can be cured by
the intervention of medical technology or science.
The defendant admitted that since their marriage on May 22, 1988, until their separation
on March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse
with his wife, she always avoided him and whenever he caresses her private parts, she
always removed his hands. The defendant claims, that he forced his wife to have sex with
him only once but he did not continue because she was shaking and she did not like it.
So he stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces
of jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.

The defendant insisted that their marriage will remain valid because they are still very
young and there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by
Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result
thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that
there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not
he has an erection and he found out that from the original size of two (2) inches, or five
(5) centimeters, the penis of the defendant lengthened by one (1) inch and one
centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his
penis is not in its full length. But, still is capable of further erection, in that with his soft
erection, the defendant is capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the
parties and that the evidence is not fabricated."2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered

into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica
of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio
de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of
Quezon City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

in affirming the conclusions of the lower court that there was no sexual intercourse
between the parties without making any findings of fact.
 II

in holding that the refusal of private respondent to have sexual communion with
petitioner is a psychological incapacity inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and the private respondent to
have sex with each other constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower
court without fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private
respondent has the burden of proving the allegations in her complaint; that since there
was no independent evidence to prove the alleged non-coitus between the parties,
there remains no other basis for the court's conclusion except the admission of petitioner;
that public policy should aid acts intended to validate marriage and should retard acts
intended to invalidate them; that the conclusion drawn by the trial court on the
admissions and confessions of the parties in their pleadings and in the course of the trial
is misplaced since it could have been a product of collusion; and that in actions for
annulment of marriage, the material facts alleged in the complaint shall always be
proved.3

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may,
on motion of that party, direct judgment on such pleading. But in actions for annulment
of marriage or for legal separation the material facts alleged in the complaint shall always
be proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision
seeks to prevent is annulment of marriage without trial. The assailed decision was not
based on such a judgment on the pleadings. When private respondent testified under
oath before the trial court and was cross-examined by oath before the trial court and
was cross-examined by the adverse party, she thereby presented evidence in form of a
testimony. After such evidence was presented, it be came incumbent upon petitioner to
present his side. He admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner,
the Civil Code provides that no judgment annulling a marriage shall be promulgated
upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the
Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be
annulled. This only shows that there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have never had sexual contact with
each other, he must have been only telling the truth. We are reproducing the relevant
portion of the challenged resolution denying petitioner's Motion for Reconsideration,
penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a
stipulation of facts. The issue of whether or not the appellant is psychologically
incapacitated to discharge a basic marital obligation was resolved upon a review of
both the documentary and testimonial evidence on record. Appellant admitted that he
did not have sexual relations with his wife after almost ten months of cohabitation, and it
appears that he is not suffering from any physical disability. Such abnormal reluctance or
unwillingness to consummate his marriage is strongly indicative of a serious personality
disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or
inability to give meaning and significance to the marriage' within the meaning of Article
36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4,
1995).4

Petitioner further contends that respondent court erred in holding that the alleged refusal
of both the petitioner and the private respondent to have sex with each other constitutes
psychological incapacity of both. He points out as error the failure of the trial court to
make "a categorical finding about the alleged psychological incapacity and an in-
depth analysis of the reasons for such refusal which may not be necessarily due to
physchological disorders" because there might have been other reasons, — i.e., physical
disorders, such as aches, pains or other discomforts, — why private respondent would not
want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of
10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding
on who between petitioner and private respondent refuses to have sexual contact with
the other. The fact remains, however, that there has never been coitus between them.
At any rate, since the action to declare the marriage void may be filed by either
party, i.e., even the psychologically incapacitated, the question of who refuses to have
sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of
the parties is suffering from phychological incapacity. Petitioner also claims that he
wanted to have sex with private respondent; that the reason for private respondent's
refusal may not be psychological but physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private
respondent or asked her what is ailing her, and why she balks and avoids him everytime
he wanted to have sexual intercourse with her. He never did. At least, there is nothing in
the record to show that he had tried to find out or discover what the problem with his
wife could be. What he presented in evidence is his doctor's Medical Report that there is
no evidence of his impotency and he is capable of erection.5 Since it is petitioner's claim
that the reason is not psychological but perhaps physical disorder on the part of private
respondent, it became incumbent upon him to prove such a claim.
If a spouse, although physically capable but simply refuses to perform his or her essential
marriage obligations, and the refusal is senseless and constant, Catholic marriage
tribunals attribute the causes to psychological incapacity than to stubborn refusal.
Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the
prolonged refusal of a spouse to have sexual intercourse with his or her spouse is
considered a sign of psychological incapacity.6

Evidently, one of the essential marital obligations under the Family Code is "To procreate
children based on the universal principle that procreation of children through sexual
cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will
finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless
and protracted refusal of one of the parties to fulfill the above marital obligation is
equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did
not want carnal intercourse with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the entire time (from May 22,
1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of
symphaty for her feelings, he deserves to be doubted for not having asserted his right
seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code,
at p. 330). Besides, if it were true that it is the wife was suffering from incapacity, the fact
that defendant did not go to court and seek the declaration of nullity weakens his claim.
This case was instituted by the wife whose normal expectations of her marriage were
frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino
woman, it is hard to believe that she would expose her private life to public scrutiny and
fabricate testimony against her husband if it were not necessary to put her life in order
and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not phychological
incapacity, and which can be achieved "through proper motivation." After almost ten
months of cohabitation, the admission that the husband is reluctant or unwilling to
perform the sexual act with his wife whom he professes to love very dearly, and who has
not posed any insurmountable resistance to his alleged approaches, is indicative of a
hopeless situation, and of a serious personality disorder that constitutes psychological
incapacity to discharge the basic marital covenants within the contemplation of the
Family Code.7

While the law provides that the husband and the wife are obliged to live together,
observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is
actually the "spontaneous, mutual affection between husband and wife and not any
legal mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless
unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner
in marriage is to say "I could not have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy
which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation
in the mystery of creation. It is a function which enlivens the hope of procreation and
ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent.
That is — a shared feeling which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense of spiritual communion.
Marital union is a two-way process. An expressive interest in each other's feelings at a
time it is needed by the other can go a long way in deepening the marital relationship.
Marriage is definitely not for children but for two consenting adults who view the
relationship with love amor gignit amorem, respect, sacrifice and a continuing
commitment to compromise, conscious of its value as a sublime social institution.

This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent appellate
court.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals
dated November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby
DENIED for lack of merit.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

(not sure if this is HOOD vs. ROLESON)

People v. Hood
Citation. C066289, 2011 BL 323913 (Cal. Ct. App. Dec. 21, 2011)

Brief Fact Summary. The intoxicated Defendant, Hood (Defendant), was resisting arrest and
during the course of the struggle with the officer, took the officer’s gun and shot him in the legs.
The Defendant was convicted of assault with a deadly weapon upon a peace officer and assault
with intent to murder the officer. The convictions were reversed due to a lack of proper instruction
by the court and because the trial court gave conflicting instructions on intoxication.

Synopsis of Rule of Law. Voluntary intoxication is not a defense to the crime of assault.

Facts. The Defendant, who was drinking heavily, resisted efforts by the police to arrest him.
During the course of the struggle, the Defendant took the police officer’s gun and shot him in the
legs. The Defendant was convicted of assault with a deadly weapon upon a peace officer and
assault with intent to murder the officer. These convictions were reversed by the Supreme Court
of California due to a lack of proper instruction on the lesser included crime of simple assault and
because the trial court gave conflicting instructions on the effect of intoxication. The Court
considered the effect of intoxication on the crime of assault with a deadly weapon in order to assist
the trial court on retrial.

Issue. Can voluntary intoxication be used to negate the necessary mens rea for the crime of
assault?

Bell v. Hood

Citation. 327 U.S. 678 (1946).

Brief Fact Summary.

Bell (Plaintiff) and others sued Hood (Defendant) and other federal agents for damages for
violation of Plaintiff’s Fourth and Fifth Amendment rights. The suit was dismissed by the federal
district court for lack of jurisdiction.

Synopsis of Rule of Law.

When a complaint seeks recovery under federal law or the Constitution, a federal court must first
assume jurisdiction before determining whether the complaint states a cause of action upon which
relief may be granted.

Facts.

Plaintiff and others brought an action in federal court against Defendant and other FBI agents
seeking more than $3000 for violations of the Fourth and Fifth Amendments to the Constitution.
The district court dismissed the complaint as one not arising under the Constitution or federal law.
Plaintiff appealed.

Issue.

Does a federal court have jurisdiction over a complaint alleging a federal question when no
remedy appears to exist?

U.S. Supreme Court

Gaines v. New Orleans, 73 U.S. 6 Wall. 642 642 (1867)

Gaines v. New Orleans

73 U.S. (6 Wall.) 642

APPEAL FROM THE CIRCUIT COURT

OF THE DISTRICT OF LOUISIANA

Syllabus

1. By the law of Louisiana, if a man bona fide believe a woman free to marry him on account of
the invalidity of a former marriage, and with such a belief of this, does marry her, such marriage
has its civil effects, and the child born of it is legitimate, and can inherit its father's estate.

2. The fact of marriage being proved, the presumptions of law are all in favor of good faith.

The Court finds as a fact that there was a marriage in good faith between the late Daniel Clark,
of New Orleans, and Marie Julie (Zulime) Carriere, of the same place, sometime before the birth
of the present Myra Clark Gaines.

The said Myra can therefore take the estate of Clark left to his said daughter by an olographic
will made in 1813, the same having been the last will made by hire, and having been duly
admitted as such to probate by the courts of Louisiana having competent jurisdiction.

3. The probate of a will duly received to probate by a state court of competent jurisdiction is
conclusive of the validity find contents of the will in his Court.
4. A will made a short time before a testator's death acknowledging a child as his legitimate and
only daughter is to be regarded, on a question of legitimacy, as an affirmative evidence of great
weight and in the nature of a dying testimony of the testator to the fact.

5. The probate of a will of later date necessarily and by the mere fact of its probate annuls a
prior will so far as the provisions of the two are inconsistent and so far as the estate was not
legally administered under the earlier will.

Accordingly, Clark's will of 1811 was annulled by his will of 1813.

6. The power of executors in Louisiana to make sale of real estate there terminated by the code
in force in 1813 in that state at the end of a year from their appointment unless there was an
order of court to sell. A sale made after the expiration of the year, in a case where no order of
court was shown and where the will itself gave no power of sale was a nullity.

Accordingly, sales made in 1819-1821 &c., by Relf & Chew, as executors of Clark's will of 1811,
proved in that year, passed no title.

7. The deed of a sole instituted heir gives no title by the law of Louisiana as against the real and
paramount heir.

Accordingly, deeds of Mrs. Mary Clark, mother of Daniel Clark, did not pass his property as
against Mrs. Gaines, his only legitimate daughter.

8. On suit brought by such real and paramount heir claiming under a will of one date to recover
possession, it is no defense by a party in possession under sales made by the executors or
alleged instituted heir under an earlier and now annulled will that the estate of the testator

Page 73 U. S. 643

was insolvent -- a fact, however, which the court considers not to be predicable of Clark's at his
death.

9. Testamentary accounts confirmed by a probate court "in all respects in which they are not
opposed" cannot be regarded as "duly homologated," so as to conclude persons whose
opposition has never been withdrawn, but is still active.

Of this character has been the opposition of Mrs. Gaines to the accounts filed by Relf & Chew,
executors of the will of Clark made in 1811.

10. A probate court cannot by subsequent order give validity to sales of real estate made by
executors which were void by the laws of the state where made.

11. Where each of two parties claim title from one person as a common source, neither, by the
law of Louisiana, is at liberty to deny that such person had title.

Accordingly, where Mrs. Gaines, out of possession, claimed under a will of Clark made in 1813,
and adverse parties claimed under an earlier will of the same person, it was not competent for
these last to show that as to two-thirds of the property in contest, the equitable title was not in
Clark at all at his death, but in his partners in trade, Chew & Relf.

Independently of this, the Court expresses itself as not at all disposed to regard as a "valid and
executed contract" a partnership agreement by which it was sought to prove such ownership
out of a testator at his death, and in his partners (who were the executors also of one will of his),
the agreement itself having for twenty-five years not been made known either to creditors,
purchasers, or the Court of Probate, and only now produced to be used in a collateral way, and
one which in effect would show that neither party to a suit wherein each claimed title had it.

12. Although, when a claimant is endeavoring to establish an equitable title, a court of equity
may refuse the use of its peculiar powers in aiding to establish it against the purchaser of the
legal estate who has acquired it fairly and honestly, yet where the complainant is not doing this,
but is asserting a right to the legal estate, it does not follow that he loses that right, because the
defendant may have purchased in good faith what he supposed was the legal title.

13. The case of Gaines v. Hennen, 24 How. 615, concludes question upon the sufficiency of any
plea of prescription similar to the one set up in that case. The one in the present case being
similar, the Court treats its sufficiency as a question not open for argument.

14. The questions of law and fact applicable to the rights of Mrs. Gaines in the estate of her
father, Daniel Clark, were determined in the case of Gaines v. Hennen, a case here solemnly
affirmed.

The case was a bill in equity filed by Mrs. Myra Clark Gaines

Page 73 U. S. 644

December 22, 1856, against certain defendants in which she sought to recover very valuable real
estate situated in New Orleans which belonged, as she alleged, to Daniel Clark, her father, who
died in New Orleans in August, 1813, Mrs. Gaines claiming title as universal legatee under a last
will of his made in 1813.

The bill alleged:

1st. That the complainant was the only legitimate child of Clark.

2d. That all the property sought to be recovered belonged to Clark at his decease.

3d. That at his death he left a valid last will and testament in which the complainant was
declared his only legitimate child and made his universal legatee, subject to certain payments.

4th. That this will of 1813 having been lost or destroyed, it was duly recognized and admitted to
probate by the Supreme Court of Louisiana in 1856 and ordered to be executed.

5th. That Clark had made a provisional will in 1811 in which he made his mother, Mary Clark, his
universal legatee and sole heir and appointed Richard Relf and Beverly Chew the testamentary
executors thereof, which will of 1811 was revoked by the will of 1813, but that Relf & Chew
wrongfully obtained the probate of the will of 1811 and illegally administered the estate under
it, making sales fraudulently and with notice of the complainant's equities &c.

6th. That the complainant was a minor until 1827, and ignorant of her parentage and rights in
her father's estate until 1834, and that from that time to the present she had persistently claimed
this estate and diligently sought its recovery by all the legal means in her power.

The bill sought a discovery from the defendants, and prayed a delivery of the property and an
account of the rents and profits and for general relief.

The answer of the defendants admitted the possession in them of the property claimed in the
bill and that the legal

title thereof was in Clark at the time of his death in 1813, but they set up:

That Clark's title passed to them or their grantors by virtue of sales made by Relf & Chew as
testamentary executors of the will of 1811.

That this title passed also under sales made by Relf & Chew as attorneys of Mary Clark, "sole heir
and legatee" of the will of 1811.

That the estate of Clark was insolvent.

That the accounts of Chew & Relf reporting the sales had been duly approved by the Probate
Court of New Orleans, and that this was binding on the complainant.

That an equitable title to two-thirds of the property was in Relf & Chew and creditors of Clark by
virtue of certain partnership articles of June 19, 1813.

They also pleaded the prescription of five, ten, twenty, and thirty years; and that they are
"purchasers in good faith, without notice, for a valuable consideration," and that they are
purchasers from "purchasers in good faith, without notice, for a valuable consideration."

They also relied upon the nullity of the probate of the will of 1813 by the Supreme Court of
Louisiana in 1856, there having been no decree of nullity of the prior will of 1811.

Upon these issues judgment was rendered against the complainant, and from such judgment it
was that the present appeal was taken.

Madridejo v. De Leon

Facts
Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The
wife and son survived Eulogio de Leon, who died in the year 1915. During her widowhood,
Flaviana Perez lived with Pedro Madridejo, a bachelor. The registry of births of the municipality
of Siniloan, Laguna, shows that on June 1, 1917, a child was born to Pedro Madridejo and
Flaviana Perez, which was named Melecio Madridejo, the necessary data being furnished by
Pedro Madridejo. On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of Flaviana
Perez, no mention being made of the father. On July 8, 1920, Flaviana Perez, being at death's
door, was married to Pedro Madridejo, a bachelor, 30 years of age, by the parish priest of
Siniloan. She died on the following day, July 9, 1920, leaving Domingo de Leon, her son by
Eulogio de Leon, and the plaintiff-appellee Melecio Madridejo, as well as her alleged second
husband, Pedro Madridejo. Domingo de Leon died on the 2nd of May, 1928. Lower Court ruled
that the marriage of Madridejo and Perez was valid and the Melecio Madridejo was legitmated
by that marriage. Appellant (Gonzalo de leon) contends that trial court erred in declaring that the
marriage in question was valid and that Pedro Madridejo was legitimated by that marriage.

Issues
Whether or not the marriage of Flaviana Perez to Pedro Madridejo is valid
Whether or not the marriage subsequently legitimated Melecio Madridejo

HELD
With regard to the first assignment of error, the mere fact that the parish priest of Siniloan,
Laguna, who married Pedro Madridejo and Flaviana Perez, failed to send a copy of the
marriage certificate to the municipal secretary does not invalidate the marriage in articulo mortis,
it not appearing that the essential requisites required by law for its validity were lacking in the
ceremony, and the forwarding of a copy of the marriage certificate is not one of said essential
requisites.

In the second issue, it is evident that Melecio Madridejo has not been acknowledged by Pedro
Madridejo and Flaviana Perez, either voluntarily or by compulsion, before or after their marriage,
and therefore said marriage did not legitimate him.

Madridejo v. De Leon, 55 Phil 1

FACTS: Eulogio de Leon and Flaviana Perez were man and wife and had one child, Domingo de
Leon. Eulogio de Leon died in 1915. During her widowhood, Flaviana Perez lived with Pedro
Madridejo, a bachelor. Pedro Madridejo and Flaviana Perez had a child named Melecio
Madridejo. On July 8, 1920, Flaviana Perez, being at death's door, was married to Pedro
Madridejo, a bachelor, 30 years of age, by virtue of articulo mortis, by the parish priest of
Siniloan. She died on the following day, leaving Domingo de Leon, her son in her first marriage,
and Melecio Madridejo, her son in her second husband. The parish priest failed to send a copy
of the marriage certificate to the municipal secretary.

ISSUE: WON the marriage is valid

HELD: Yes, the failure of the priest to send a copy of the marriage certificate does not affect the
validity of their marriage because it is only an irregularity of a formal requisite. Failure of the
priest to send a copy of the marriage certificate to the municipal secretary does not invalidate
the marriage in articulo mortis, it not appearing that the essential requisites required by law for
its validity were lacking in the ceremony, and the forwarding of a copy of the marriage certificate
is not one of said essential requisites.
(hindi ko Makita ang GUNTER VS. DEALERS TRANSPORT CO.)

Trinidad v. CA 289 SCRA 189

Facts
Arturio Trinidad claims to be the son of Inocentes Trinidad, who together with Felix and Lourdes,
his siblings, are heirs to four parcels of land of their deceased father. He presented the following
evidence.

a. testimony of Gerardo that Inocentes and his wife cohabited and had a child
b. testimony of Meren that she was present in the marriage of Inocentes
c. His own baptismal certificate (his birth certificate had been destroyed)
d. Family pictures and his own testimony that he lived with Lourdes, until he got married.

Lourdes, the aunt of Inocentes, presented the following evidence to refute Arturio’s claims:
a. testimony of Briones that Inocentes was never married
b. her own testimony that Inocentes died childless and she claimed that Arturio was simply a
neighbor. She denied knowledge of the pictures Arturio presented, where she is shown holding
the baby of Arturio, together with Arturio and his wife.
Issue
Whether or not evidence of the marriage of Inocentes and Arturio’s filiation are sufficient.
Held
Yes. In the absence of a marriage certificate, any of the four can be sufficient proof of marriage:
fact of marriage ceremony, open cohabitation of the parties, birth certificate of the child, and
other documents. Arturio presented the first 3. For filiation, when the birth certificate can’t be
produced, other evidence like the baptismal certificate, is admissible. Use of surname without
objection is also presumptive evidence of legitimacy.

ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, respondent.

G.R. No. 118904 April 20, 1998

Facts:

Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes,
Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four
(4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan.

Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes
Trinidad. Sometime after the marriage, he demanded from the defendants to partition the land
into three equal shares and to give him the (1/3) individual share of his late father, but the
defendants refused.

Arturio Trinidad filed, an action for partition of four parcels of land. Defendants denied that
plaintiff was the son of the late Inocentes Trinidad. Defendants contended that Inocentes was
single when he died in 1941, before plaintiff’s birth. Defendants also denied that plaintiff had lived
with them, and claimed that the parcels of land described in the complaint had been in their
possession since the death of their father in 1940 and that they had not given plaintiff a share in
the produce of the land.

Arturio presented witnesses to prove his position. Jovita Gerardo testified that Inocentes Trinidad
and Felicidad Molato are the parents of Arturio; that Felix and Lourdes as the uncle and aunt of
Arturio; and also identified pictures where the respondents were with Arturio and his family.(At
this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister,
Lourdes Trinidad.) Another witness, ISABEL MEREN, 72 years old and a widow testified that she
knows Inocentes Trinidad as the father of Arturio Trinidad; that she knew Inocentes Trinidad and
Felicidad Molato as the parents of Arturio and that she was present when they were married in
New Washington, Aklan, by a protestant pastor by the name of Lauriano Lajaylajay. She further
testified that upon the death of Inocentes, Lourdes took Arturio and cared for him. ARTURIO
TRINIDAD, himself, was presented as witness. As proof that he is the son of Inocentes Trinidad
and Felicidad Molato, he showed a certificate of baptism, and a certificate of loss issued by the
LCR that his birth certificate was burned during World War 2. He also testified that he lived with
Felix and Lourdes and provided for his needs.

On the other hand, defendants presented Pedro Briones who testified that Inocentes was not
married when he died in 1940s. Lourdes Trinidad also testified that she was not aware that his
brother married anybody and denied that Arturio lived with them. Beatriz Sayon also testified that
Inocentes died in 1941, and that Felicidad Molato had never been married to Inocentes. The trial
court rendered a twenty-page decision in favor of Arturio. The CA reversed the decision.

Issue:

Whether or not the petitioner presented sufficient evidence of his parent’s marriage and his
filation.

Ruling:

The partition of the late Patricios real properties requires preponderant proof that petitioner is a
co-owner or co-heir of the decedent’s estate. His right as a co-owner would, in turn, depend
on whether he was born during the existence of a valid and subsisting marriage between his
mother (Felicidad) and his putative father (Inocentes).

When the question of whether a marriage has been contracted arises in litigation, said marriage
may be proven by relevant evidence. To prove the fact of marriage, the following would constitute
competent evidence: the testimony of a witness to the matrimony, the couple’s public and open
cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal
certificates of children born during such union, and the mention of such nuptial in subsequent
documents.

In the case at bar, petitioner secured a certification from the Office of the Civil Registrar of Aklan
that all records of births, deaths and marriages were lost, burned or destroyed during the Japanese
occupation of said municipality. Although the marriage contract is considered the primary
evidence of the marital union, petitioner’s failure to present it is not proof that no marriage took
place, as other forms of relevant evidence may take its place. In place of a marriage contract, two
witnesses were presented by petitioner: Isabel Meren and Jovita Gerardo. It further gives rise to
the disputable presumption that a man and a woman deporting themselves as husband and wife
have entered into a lawful contract of marriage. Petitioner also presented his baptismal certificate
in which Inocentes and Felicidad were named as the child’s father and mother, and family
pictures.

The totality of petitioner’s positive evidence clearly preponderates over private respondent’s self-
serving negations.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are
REVERSED and SET ASIDE. The trial courts decision is REINSTATED.

RECTO V. HARDEN (1959)

 Short summary: Recto was hired by American wife to represent her in RP case for
protection of her interest in the conjugal property, vs. American husband, in
conjunction with the divorce proceeding she's going to file in US. They won in
TC, but on appeal, American H & W agreed to settle. Recto now wants to collect
fees for services, but as defense, Harden spouses argues that the contract's
object was unlawful (Divorce not allowed in RP) so it is invalid, thus, Recto
cannot enforce it against them. Court ruled for Recto
Facts:
Mrs. Harden, US Citizen, engaged services of Claro M. Recto, for suit
…to secure an increase in the amount of support she was receinging
…to preserve her rights in the properties of the conjugal partnership
…in contemplation of a divorce suit she's going to file in the US.
Compensation for RECTO: 20% of value of her share of conjugal partnership after
liquidation
TC: for Mrs. Harden
CA: Harden Sps. Mutually released and forever discharged each other from all
actions, debts, duties, and claims to the conjugal partnership
-Recto filed motion contesting agreement
-defense: contract of services invalid: to secure a divorce decree in violation
of our laws
WON RECTO COULD ENFORCE THE AGREEMENT? YES
*CONTRACT OF SERVICES IS NOT CONTRARY TO LAW, MORALS, GOOD CUSTOMS, PUBLIC
ORDER, OR PUBLIC POLICY
1. The contract has a lawful object: it is to protect the interests of Mrs.
Harden in the conjugal partnership during the pendency of a divorce suit
-NOT
…to secure divorce
…to facilitate or promote procurement of divorce
2. Divorce can be granted to the Sps Harden, they being nationals of
country whose laws allow divorce (following the nationality principle in
determining the status and dissolution of the marriage)

Philippine Telegraph and Telephone Company vs. NLRC

272 SCRA 596
FACTS:
PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de Guzman specifically
as “Supernumerary Project Worker”, for a fixed period from November 21, 1990 until April 20,
1991 as reliever for C.F. Tenorio who went on maternity leave. She was again invited for
employment as replacement of Erlina F. Dizon who went on leave on 2 periods, from June 10,
1991 to July 1, 1991 and July 19, 1991 to August 8, 1991.

On September 2, 1991, de Guzman was again asked to join PT&T as a probationary employee
where probationary period will cover 150 days. She indicated in the portion of the job application
form under civil status that she was single although she had contracted marriage a few months
earlier. When petitioner learned later about the marriage, its branch supervisor, Delia M. Oficial,
sent de Guzman a memorandum requiring her to explain the discrepancy. Included in the
memorandum, was a reminder about the company’s policy of not accepting married women for
employment. She was dismissed from the company effective January 29, 1992. Labor Arbiter
handed down decision on November 23, 1993 declaring that petitioner illegally dismissed De
Guzman, who had already gained the status of a regular employee. Furthermore, it was apparent
that she had been discriminated on account of her having contracted marriage in violation of
company policies.
ISSUE: Whether the alleged concealment of civil status can be grounds to terminate the services
of an employee.
HELD:
Article 136 of the Labor Code, one of the protective laws for women, explicitly prohibits
discrimination merely by reason of marriage of a female employee. It is recognized that the
company is free to regulate manpower and employment from hiring to firing, according to their
discretion and best business judgment, except in those cases of unlawful discrimination or those
provided by law.
PT&T’s policy of not accepting or disqualifying from work any woman worker who contracts
marriage is afoul of the right against discrimination provided to all women workers by our labor
laws and by our Constitution. The record discloses clearly that de Guzman’s ties with PT&T were
dissolved principally because of the company’s policy that married women are not qualified for
employment in the company, and not merely because of her supposed acts of dishonesty.
The government abhors any stipulation or policy in the nature adopted by PT&T. As stated in the
labor code:
“ART. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a
condition of employment or continuation of employment that a woman shall not get married, or to
stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed
resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a
woman employee merely by reason of marriage.”
The policy of PT&T is in derogation of the provisions stated in Art.136 of the Labor Code on the
right of a woman to be free from any kind of stipulation against marriage in connection with her
employment and it likewise is contrary to good morals and public policy, depriving a woman of her
freedom to choose her status, a privilege that is inherent in an individual as an intangible and
inalienable right. The kind of policy followed by PT&T strikes at the very essence, ideals and
purpose of marriage as an inviolable social institution and ultimately, family as the foundation of
the nation. Such policy must be prohibited in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land not only for order but also imperatively
required.

ESTOPA V. PIANSAY , GR No. L-14733 September 30, 1960

1.DAMAGES; BREACH OF PROMISE TO MARRY.—The mere breach of a promise to marry is
not actionable and no moral damages may be awarded in a breach of promise suit.
2. EXEMPLARY DAMAGES.—Where the plaintiff had no right to moral damages, she may not
demand exemplary damages.
Estopa vs. Piansay, Jr.
Appeal from the decision of the Negros Occidental court of first instance awarding to plaintiff the
sum of P5,000.00 by way of moral damages, P2,000.00 as exemplary damages and P1,000.00
as attorney's fees.
As stated by the court below, "this is an action for recovery of moral and exemplary damages and
attorney's fees. There is no dispute regarding the facts of this case. The plaintiff Erlinda Estopa,
a beautiful girl of twentythree, residing in Bago, Negros Occidental, with her widowed mother,
Felicidad Estopa, stated that she fell in love and submitted herself completely to the defendant
Loreto Piansay, Jr., sometime in September, 1957, after a courtship that lasted for a couple of
months during which period the defendant consistently promised and succeeded to make her
believe in him that he was going to marry her; that sometime in December, 1957, the plaintiff was
informed reliably that defendant was backing out from his promise of marriage so she demanded
defendant's compliance to his promise in order to vindicate her honor, and plaintiff went to the
extent of asking the help of defendant's parents, but all her efforts were in vain. Finally, realizing
that her efforts were futile but knowing that her cause was not completely lost, she decided to file
her complaint, not to compel defendant to marry her, but to demand f rom him a compensation
for the damages that she sustained."
There is no claim for any other kind of damages. In fact, Erlinda Estopa filed no brief here. And
her complaint merely alleged "social humiliation, mental anguish, besmirched reputation,
wounded feelings and moral shock."
We have today decided that in this jurisdiction, under the New Civil Code, the mere breach of a
promise to marry is not actionable. (Hermosisima vs. Court of Appeals, Supra, 631); and we have
reversed the Cebu court's award for moral damages in a breach of promise suit.

PILAPIL v IBAY-SOMERA 174 SCRA 653

FACTS:
On September 7, 1979, Imelda Manalaysay Pilapil, a Filipina and therespondent to the case, and
Erich Geiling, a German national, were married atFriedenweiler in the Federal Republic of
Germany. After about three and a half years of marriage, Geiling initiated a divorce proceeding
against Pilapil in Germanyin January 1983 while Pilapil filed an action for legal separation, support
andseparation of property before RTC of Manila in January 23, 1983 where it is stillpending as a
civil case. On January 15, 1986, the local Court of Germanypromulgated a divorce decree on the
ground of failure of marriage of the spouses. The custody of the child,Isabella Pilapil Geiling, was
granted to petitioner.On June 27, 1986, private respondent filed two complaints for adultery
alleging that,while still married to respondent, petitioner had an affair with a certain William
Chiaand Jesus Chua sometime in 1982 and 1983 respectively. The respondent city
fiscalapproved a resolution directing the filing of two complaints for adultery againstpetitioner.
Thereafter, petitioner filed a motion in both criminal cases to defer herarraignment and to suspend
further proceedings thereon. Respondent judge merelyreset the date of the arraignment but
before such scheduled date, petitioner movedfor the suspension of proceedings. On September
8, 1987, respondent judge deniedthe motion to quash and also directed the arraignment of both
accused. Petitionerrefused to be arraigned and thus charged with direct contempt and fined.
ISSUE:
Whether or not the private respondent’s adultery charges against thepetitioner is still valid given
the fact that both had been divorced prior to the filingof charges.
HELD:
The law provides that in prosecutions for adultery and concubinage theperson who can legally
file the complaint should only be the offended spouse. Thefact that private respondent obtained
a valid divorce in his country in 1983, isadmitted. According to Article 15 of the Civil Code, with
relation to the status of Filipino citizens both here and abroad, since the legal separation of the
petitionerand respondent has been finalized through the courts in Germany and the RTC inManila,
the marriage of the couple were already finished, thus giving no merit to thecharges the
respondent filed against the petitioner. Private respondent, being nolonger married to petitioner
holds no legal merit to commence the adultery case asthe offended spouse at the time he filed
suit in 1986. The temporary restrainingorder issued in this case was made permanent.

Restituto Alcantara vs Rosita Alcantara

Restituto Alcantara filed a petition for annulment of marriage against Rosita Alcantara alleging
that on December 8, 1982 he and Rosita, without securing the required marriage license, went to
the Manila City Hall for the purpose of looking for a “fixer” who could arrange a marriage for
them before a certain Rev. Navarro. They got married on the same day. Restituto and Rosita
went through another marriage ceremony in Tondo, Manila, on March 26, 1983. The marriage
was again celebrated without the parties securing a marriage license. The alleged marriage
license, procured in Carmona, Cavite, appearing on the marriage contract, is a sham, as neither
party was a resident of Carmona, and they never went to Carmona to apply for a license with the
local civil registrar of the said place. In 1988, they parted ways and lived separate lives. Restituto
prayed that after due hearing, judgment be issued declaring their marriage void and ordering the
Civil Registrar to cancel the corresponding marriage contract and its entry on file. Rosita
however asserts the validity of their marriage and maintains that there was a marriage license
issued as evidenced by a certification from the Office of the Civil Registry of Carmona, Cavite;
that Restituto has a mistress with whom he has three children; that Restituto only filed the
annulment of their marriage to evade prosecution for concubinage. Rosita, in fact, has filed a case
for concubinage against Restituto.
ISSUE: Whether or not their marriage is valid.
HELD: Yes. The requirement and issuance of a marriage license is the State’s demonstration of
its involvement and participation in every marriage, in the maintenance of which the general public
is interested. Restituto cannot insist on the absence of a marriage license to impugn the validity
of his marriage. The cases where the court considered the absence of a marriage license as a
ground for considering the marriage void are clear-cut. In this case, the marriage contract between
the parties reflects a marriage license number. A certification to this effect was also issued by the
local civil registrar of Carmona, Cavite. The certification moreover is precise in that it specifically
identified the parties to whom the marriage license was issued, namely Restituto Alcantara and
Rosita Almario, further validating the fact that a license was in fact issued to the parties herein.
Restituto, in a faint attempt to demolish the probative value of the marriage license, claims that
neither he nor respondent is a resident of Carmona, Cavite. Even then, the Supreme Court still
holds that there is no sufficient basis to annul the marriage. Issuance of a marriage license in a
city or municipality, not the residence of either of the contracting parties, and issuance of a
marriage license despite the absence of publication or prior to the completion of the 10-day period
for publication are considered mere irregularities that do not affect the validity of the marriage. An
irregularity in any of the formal requisites of marriage does not affect its validity but the party or
parties responsible for the irregularity are civilly, criminally and administratively liable. Semper
praesumitur pro matrimonio. The presumption is always in favor of the validity of the marriage.
Every intendment of the law or fact leans toward the validity of the marriage bonds. The Courts
look upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the
presumption is of great weight.

Sy v. CA, G.R. No. 127263, April 12, 2000

FACTS: Filipina Sy and Fernando Sy contracted marriage on November 15, 1973 in Quezon City.
They had two children. On September 15, 1983, Fernando left the conjugal dwelling. Since then,
they lived separately with the children in the custody of their mother. On February 11, 1987,
Filipina filed a petition for legal separation before the RTC of San Fernando, Pampanga which
was later amended to a petition for separation of property. In 1988, she filed a case of attempted
parricide against Fernando. However, the case was lowered to slight physical injuries. Petitioner
filed for a declaration of absolute nullity of marriage on the ground of psychological incapacity. It
was denied. On appeal, she raised the issue of their marriage being void ab initio for the lack of
marriage license. Their marriage license was obtained on September 17, 1972 while their
marriage was celebrated on November 15, 1973. Hence, the marriage license was expired
already.

Issue: W/N the marriage is valid

Held: No. Evidence shows that there was no marriage license. A marriage license is a formal
requirement; its absence renders the marriage void ab initio. In addition, the marriage contract
shows that the marriage license, was issued in Carmona, Cavite, yet, neither petitioner nor private
respondent ever resided in Carmona. Marriage is void ab initio for lack of marriage license. Issue
on psychological incapacity is hereby mooted.
 Alabama Great Southern R.R. v. Carroll
Supreme Court of Alabama
97 Ala. 126 , 11 So. 803 (1892)

MCCLELLAN, J.

The plaintiff, W. D. Carroll, is, and was at the time of entering into the service of the defendant,
the Alabama Great Southern Railroad Company, and at the time of being injured in that service,
a citizen of Alabama. The defendant is an Alabama corporation, operating a railroad extending
from Chattanooga, in the state of Tennessee, through Alabama to Meridian, in the state of
Mississippi. At the time of the casualty complained of plaintiff was in the service of the defendant
in the capacity of brakeman on freight trains running from Birmingham, Ala., to Meridian, Miss.,
under a contract which was made in the state of Alabama. The injury was caused by the breaking
of a link between two cars in a freight train which was proceeding from Birmingham to Meridian.
The point at which the link broke and the injury was suffered was in the state of Mississippi. The
evidence tended to show that the link which broke was a defective link, and that it was in a
defective condition when the train left Birmingham. ***

The evidence went also to show that the defect in this link consisted in or resulted from its having
been bent while cold; that this tended to weaken the iron, and in this instance had cracked the
link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It
was shown to be the duty of certain employees of defendant stationed along its line to inspect the
links attached to cars to be put in trains, or forming the couplings between cars in trains at
Chattanooga, Birmingham, and some points between Birmingham and the place where this link
broke, and also that it was the duty of the conductor of freight trains, and the other train men, to
maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the
evidence affords ground for inference that there was a negligent omission on the part of such
employees to perform this duty, or, if performed, the failure to discover the defect in, and to
remove, this link was the result of negligence.

The foregoing statement of facts, either proved or finding lodgment in the tendencies of the
evidence, together with the evidence of the law of Mississippi as to the master's liability for injuries
sustained by an employee in his service, will suffice for the consideration and determination of the
question which is of chief importance in this case, namely, whether the defendant is liable at all,
on the facts presented by this record, for an injury sustained by the plaintiff in the state of
Mississippi.

***The only negligence *** which finds support *** in any tendency of the evidence, is that of
persons whose duty it was to inspect the links of the train, and remove such as were defective,
and replace them with others which were not defective. This was the negligence, not of the master,
the defendant, but of fellow servants of the plaintiff, for which at common law the defendant is not
liable. ***

It is, however, further contended that the plaintiff, if his evidence be believed, has made out a
case for the recovery sought under the employers' liability act of Alabama, it being clearly shown
that there is no such or similar law of force in the state of Mississippi. Considering this position in
the abstract,-that is, dissociated from the facts of this particular case, which are supposed to exert
an important influence upon it,-there cannot be two opinions as to its being unsound and
untenable. So looked at, we do not understand appellee's counsel even to deny either the
proposition or its application to this case,-that there can be no recovery in one state for injuries to
the person sustained in another, unless the infliction of the injuries is actionable under the law of
the state in which they were received. Certainly this is the well-established rule of law, subject, in
some jurisdictions, to the qualification that the infliction of the injuries would also support an action
in the state where the suit is brought had they been received within that state.***

But it is claimed that the facts of this case take it out of the general rule which the authorities cited
above abundantly support, and authorize the courts of Alabama to subject the defendant to the
payment of damages under section 2590 of the Code, although the injuries counted on were
sustained in Mississippi under circumstances which involved no liability on the defendant by the
laws of that state. This insistence is, in the first instance, based on that aspect of the evidence
which goes to show that the negligence which produced the casualty transpired in Alabama, and
the theory that, wherever the consequences of that negligence manifested itself, a recovery can
be had in Alabama. We are referred to no authority in support of this proposition, and exhaustive
investigation on our part has failed to disclose any.

***It is admitted, or at least cannot be denied, that negligence of duty unproductive of damnifying
results will not authorize or support a recovery. Up to the time this train passed out of Alabama
no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever
arose. The fact which created the right to sue,-the injury,-without which confessedly no action
would lie anywhere, transpired in the state of Mississippi. It was in that state, therefore, necessarily
that the cause of action, if any, arose; and whether a cause of action arose and existed at all, or
not, must in all reason be determined by the law which obtained at the time and place when and
where the fact which is relied on to justify a recovery transpired. Section 2590 of the Code of
Alabama had no efficacy beyond the lines of Alabama. It cannot be allowed to operate upon facts
occurring in another state, so as to evolve out of them rights and liabilities which do not exist under
the law of that state, which is of course paramount in the premises.

***Section 2590 of the Code, in other words, is to be interpreted in the light of universally
recognized principles of private, international, or interstate law, as if its operation had been
expressly limited to this state, and as if its first line read as follows: "When a personal injury is
received in Alabama by a servant or employee," etc. The negligent infliction of an injury here,
under statutory circumstances, creates a right of action here, which, being transitory, may be
enforced in any other state or country the comity of which admits of it; but for an injury inflicted
elsewhere than in Alabama our statute gives no right of recovery, and the aggrieved party must
look to the local law to ascertain what his rights are. Under that law this plaintiff had no cause of
action, as we have seen, and hence he has no rights which our courts can enforce. ***

Another consideration *** it is insisted, entitles this plaintiff to recover here under the employers'
liability act for an injury inflicted beyond the territorial operation of that act. This is claimed upon
the fact that at the time plaintiff was injured he was in the discharge of duties which rested on him
by the terms of a contract between him and the defendant, which had been entered into in
Alabama, and hence was an Alabama contract, in connection with the facts that plaintiff was and
is a citizen of this state, and the defendant is an Alabama corporation. These latter facts-of
citizenship and domicile, respectively, of plaintiff and defendant-are of no importance in this
connection, it seems to us, further than this: they may tend to show that the contract was made
here, which is not controverted and, if the plaintiff has a cause of action at all, he, by reason of
them, may prosecute it in our courts. They have no bearing on the primary question of the
existence of a cause of action, and, as that is the question before us, we need not further advert
to the fact of plaintiff's citizenship or defendant's domicile.****

The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its
freight trains between Birmingham, Ala., and Meridian, Miss., and should receive as
compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory
is that the employers' liability act became a part of this contract *** If this argument is sound, and
it is sound if the duties and liabilities prescribed by the act can be said to be contractual duties
and obligations at all, it would lead to conclusions, the possibility of which has not hitherto been
suggested by any court or law writer, and which, to say the least, would be astounding to the
profession.***

It is the purpose of the statute, and must be the limit of its operation, to govern persons standing
in the relation of master and servants to each other, in respect of their conduct in certain
particulars within the state of Alabama. Mississippi has the same right to establish governmental
rules for such persons within her borders as Alabama, and she has established rules which are
different from those of our law; and the conduct of such persons towards each other is, when its
legality is brought in question, to be adjudged by the rules of the one or the other state, as it falls
territorially within the one or the other. ***

For the error in refusing to instruct the jury to find for the defendant, if they believed the evidence,
the judgment is reversed, and the cause will be remanded.

LAZARO RAYRAY VS CHAE KYUNG LEE

FACTS: Rayray married Lee in 1952 in Pusan, Korea. Before the marriage, Lee was
able to secure a marriage license which is a requirement in Korea prior to marrying.

They lived together until 1955. Rayray however later found out that Lee

had previously lived with 2 Americans and a Korean. Lee answered by saying that

it is not unusual in Korea for a woman to have more than one partner and that it

is legally permissive for them to do so and that there is no legal impediment to her

marriage with Rayray. Eventually they pursued their separate ways. Rayray later

filed before lower court of Manila for an action to annul his marriage with Lee

because Lee’s whereabouts cannot be determined and that his consent in marrying

Lee would have not been for the marriage had he known prior that Lee had been

living with other men. His action for annulment had been duly published and

summons were made known to Lee but due to her absence Rayray moved to have

Lee be declared in default. The lower court denied Rayray’s action stating that since

the marriage was celebrated in Korea the court cannot take cognizance of the case

and that the facts presented by Rayray is not sufficient to debunk his marriage with

Lee.

ISSUE: Whether or not Rayray’s marriage with Lee is null and void.

HELD: The lower court erred in ruling that Philippine courts do not have jurisdiction

over the case. As far as marriage status is concerned, the nationality principle is

controlling NOT lex loci celebracionis. The lower court is however correct in ruling

that Rayray’s evidence is not sufficient to render his marriage with Lee null and void.

Rayray said that the police clearance secured by Lee is meant to allow her to marry

after her subsequent cohabitation/s with the other men – which is considered

bigamous in Philippine law. The SC ruled that the police clearance is wanting for it

lacks the signature of the person who prepared it and there is no competent
document to establish the identity of the same. Also, through Rayray himself, Lee

averred that it is ok in Korea for a person who cohabited with other men before to

marry another man. This is an indication that Lee herself is aware that if it were a

previous marriage that is concerned then that could be a legal impediment to any

subsequent marriage. Rayray cannot be given credence in claiming that his consent

could have been otherwise altered had he known all these facts prior to the marriage

because he would lie to every opportunity given him by the Court so as to suit his

case.

RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY,

Respondent

A.M. No. MTJ-96 1088 July 19,1996

FACTS: Municipal Mayor of Dapa, Surigao del Norte, Rodolfo Navarro, has submitted
evidence in relation to two specific acts committed by the respondent with the
following facts: First, on September 27, 1994, respondent judge solemnized the
wedding between Gaspar Tagahan and Arlyn Borga, despite the knowledge that
the groom is merely separated from his first wife. Second, on October 27, 1994
the respondent allegedly performed a marriage ceremony between Floriano
Dador Sumaylo and Gemma Del Rosario outside of the respondent’s court’s
jurisdiction. Such wedding was solemnized at the respondent’s residence in
municipality of Dapa, which does not fall within the respondent’s jurisdictional
area of Sta. Monica and Burgos.

Respondent, in one of his letter-comment to the Office of the Court Administrator

(OCA), argued that in solemnizing the marriage between Sumaylo and Del
Rosario, he did not violate Article 7, paragraph one (1) of the Family Code, which
states that “Marriage may be solemnized by: (1) Any incumbent member of the
judiciary within the court’s jurisdiction.”; and that Article 8 thereof applies to the
case in question.

ISSUE: Whether or not the solemnization of the marriage of Sumaylo and Del
Rosario was within the respondent’s court’s jurisdiction.

HELD: No. The solemnization of the marriage of Sumaylo and Del Rosario was
not within the respondent’s court’s jurisdiction. As provided in Article 7 of
the Family Code, “Marriage may be solemnized by : (1) any incumbent
member of the judiciary within the court’s jurisdiction…” not allowing
respondent judge to solemnize a marriage in the municipality of Dapa, Surigao
del Norte since his jurisdiction only covers the municipalities of Sta. Monica and
Burgos. Respondent judge cited Article 8 of the Family Code and the exceptions
therein. There are only three instances, which the Article 8 of the Family Code
provides, wherein a judge may solemnize a marriage publicly “in the chambers
of the judge or in open court, in the church, chapel or temple, or in the office of
the consul-general, consul or vice-consul as the case may be, and not elsewhere,
except in cases of marriages contracted at the point of death or in
remote places in accordance with Article 29, or were both of the parties
request the solemnizing officer in writing in which case the marriage
may be solemnized at a house or place designated by them in a sworn
statement to that effect”. There is no pretence that either Sumaylo or del
Rosario was at the point of death or in a remote place. Moreover, the written
request presented addressed to the respondent judge was made by only one
party, Gemma del Rosario.

In this case, the solemnization of the marriage of Sumaylo and Del Rosario was
outside the respondent’s court’s jurisdiction.

G.R. No. 110592; January 23, 1996

PEOPLE VS. VELASCO
FACTS:
Sentenced to life imprisonment and a fine of P20,000.00 by the Regional Trial Court of Manila
was appellant Yolanda Velasco y Pamintuan, after having been found guilty of unlawfully selling
“shabu,” in violation of Section 15 of Article III in relation to Section 2(e-2), (f), (m), and (o) of
Article 1 of “The Dangerous Drugs Act of 1972” (R.A. 6425).
Velasco was apprehended in a buy-bust operation in the afternoon of June 28, 1991. Velasco
was caught in flagrante delicto as she was handing shabu to a designated poseur-buyer. Five
more decks were found in her pockets.
Appellant argues that the court erred in admitting the said decks of shabu as evidence against
her since those were acquired through a warrantless arrest. Hence, its inadmissibility. Secondly,
appellant questions the RTC’s jurisdiction over the case given the quantity allegedly obtained in
her possession.
ISSUES:
1.) Whether or not the decks of shabu are inadmissible as evidence for having been acquired
through a warrantless arrest.
2.) Whether or not the RTC has jurisdiction over the case.

RULING:
1.) Yes. Section 5(a) of Rule 113 of the Rules on Criminal Procedure provides that an arrest
when done lawfully either by a peace officer or any private person may be done if the person to
be arrested is actually committing, has committed or attempting to commit an offense.
Appellant was caught in flagrante delicto thus her denial and defense of frame-up cannot be
justified under the said provision. Moreover, appellant failed to establish that the members of the
buy-bust team are policemen engaged in mulcting or other unscrupulous caprice when they
entrapped her.

2.) Yes. The enforcement of R.A. 7659, which amended the penalty provided for in R.A. 6425,
agrees with the appellants argument that under the foregoing directive, since the amount of
shabu involved in the instant case is only 0.8020 gram, the proper imposable component
penalty is prision correccional to be applied in its medium period, in the absence of any
mitigating or aggravating circumstances. Applying the indeterminate Sentence Law, the
maximum shall be taken from the medium of prision correccional, which is two (2) years, four (4)
months and one (1) day, to four (4) years and two (2) months, while the minimum shall be taken
from the penalty next lower in degree, which is arresto mayor, the range of which is one (1)
month and one (1) day to six (6) months.”

R.A. 7691 expanded the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts. The said act vested these courts with exclusive original
jurisdiction over all offenses punishable with imprisonment not exceeding six years. However,
R.A. 7691 shows that retroactive provisions apply only to civil cases that have not yet reached
the pre-trial stage. Neither from an express proviso nor by implication can it be understood as
having retroactive application to criminal cases pending or decided by the Regional Trial Courts
prior to its effectivity. RTC’s jurisdiction to proceed to the final determination of the cause is not
affected by the new legislation.
At the time that the case against appellant was filed, the Regional Trial Court had jurisdiction
over the offense charged in as much as Section 39 of R.A 6425. In fine, the jurisdiction of the
trial court (RTC) over the case of the appellant was conferred by the aforecited law then in force
(R.A. 6425 before amendment) when the information was filed. Jurisdiction attached upon the
commencement of the action and could not be ousted by the passage of R.A. 7691
reapportioning the jurisdiction of inferior courts, the application of which to criminal cases is, to
stress, prospective in nature.

Bayot vs. CA
G.R. No. 155635 November 7, 2008

FACTS: Rebecca Macapugay Bayot was an American citizen and born in Agoa, Guam, USA.
She married Vicente Bayot at Greenhills, Mandaluyong on April 20, 1979. On November
27,1982, Rebecca gave birth to a daughter named Alix at San Francisco, California. However,
as the marriage turned sour, Rebecca initiated a divorce on 1996 in Dominican Republic. The
latter ordered the dissolution of marriage and remarriage after competing the legal
requirements. However, there must be a joint custody and guardianship to Alix, and the conjugal
property, particularly the real properties located only in Manila that they acquired during their
marriage be settled.

However, Rebecca stated under oath on May 28, 1996 that she is an American citizen and she
is carrying a child not of Vicente. Rebecca again filed another petition in Manila on March 2001
for absolute nullity of marriage on the ground of dissolution of partnership gain, monthly support
for their daughter and that Vicente is psychological incapacitated.

Vicente averred and filed a motion to dismiss for lack of cause and action and filed a case of
adultery and perjury against Rebecca. Rebecca, on the contrary, charged Vicente with bigamy
and concubinage.

On the other note, Rebecca became a recognized Filipino citizen on 2000.

ISSUE: Whether or not the divorce is valid?

HELD: 1) No serious dispute that at the time of divorce to Vicente, Rebecca was an American
citizen and still remains to be one. Evidences: a) she was born in USA and jus soli is followed in
American territory in granting American citizenship; b) she was and may still be an American
passport holder; c) in marriage certificate, birth certificate of Alix and divorce decree in
Dominican Republic, it was declared that she is an American

2) VALID. Rebecca was bound by the national laws of USA where divorce was valid. Their
property relations were also properly adjudicated through their Agreement on 1996. Foreign
divorce can be recognized in the Philippines provided that the divorce decree is fact and valid
under the national law of the alien spouse. The reckoning point is the citizenship of parties at the
time the divorce was obtained and not the citizenship of the parties at the time of the celebration
of marriage.

Skinner v. State of Oklahoma

Facts. Oklahoma defined a “habitual criminal” as a person who, “having been convicted two or more
times for crimes ”amounting to felonies involving moral turpitude’ either in Oklahoma or another State,
is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in a
Oklahoma penal institution.”�Such habitual criminals could be subject to forced sterilization. The
Petitioner had been twice arrested for theft offenses before being arrested and confined for armed
robbery. During his third incarceration, the Act was passed and proceedings were instituted against him.

Issue. May the State sterilize an individual against his will for being convicted of three felonies involving
moral turpitude?

Held. No. Supreme Court of Oklahoma ruling reversed.

Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders in no way guarantees
that new offenders will not be born. Furthermore, there is no guarantee that habitual offenders would
spawn offenders themselves.

J. Douglas cannot justify the distinction between larceny (involving moral turpitude) and embezzlement
(not involving moral turpitude) in the eyes of the statute. This is clear discrimination in J. Douglas’s view.
In terms of fines and imprisonment the crimes are identical to the State. Only when it comes to
sterilization do the crimes differ. As such, equal protection is violated.

Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his decision on due
process grounds, arguing that the invasion of personal liberty is too great.

SILVERIO v. REPUBLIC

FACTS:

On November 26, 2002, Silverio field a petition for the change of his first name “Rommel Jacinto” to
“Mely” and his sex from male to female in his birth certificate in the RTC of Manila, Branch 8, for reason
of his sex reassignment. He alleged that he is a male transsexual, he is anatomically male but thinks and
acts like a female. The Regional Trial Court ruled in favor of him, explaining that it is consonance with the
principle of justice and equality.

The Republic, through the OSG, filed a petition for certiorari in the Court of Appeals alleging that there is
no law allowing change of name by reason of sex alteration. Petitioner filed a reconsideration but was
denied. Hence, this petition.
ISSUE:

WON change in name and sex in birth certificate are allowed by reason of sex reassignment.

HELD:

No. A change of name is a privilege and not a right. It may be allowed in cases where the name is
ridiculous, tainted with dishonor, or difficult to pronounce or write; a nickname is habitually used; or if
the change will avoid confusion. The petitioner’s basis of the change of his name is that he intends his
first name compatible with the sex he thought he transformed himself into thru surgery. The Court says
that his true name does not prejudice him at all, and no law allows the change of entry in the birth
certificate as to sex on the ground of sex reassignment. The Court denied the petition.

TOMAS EUGENIO, SR., petitioner, vs. HON. ALEJANDRO M.

Facts:

On Sept. 27, 1988, respondent-brothers Vargas(es) filed a petition for habeas corpus against Eugenio for
forcibly taking Vitaliana (respondents’ sister)from her residence in 1987 and confined by the former in
his palacial residence in Misamis Oriental. The respondent-brothers, however, were not knowledgeable
of Vitaliana’s death on August 28, 1988 due to heart failure, prior to their filing of the writ of habeas
corpus. Hence, Eugenio did not release the body of Vitaliana claiming that the writ of habeas corpus is
invalid because it was filed after the death of Vitaliana. the respondent-brothers claimed that there was
no existing marital relationship between Eugenio and Vitaliana and therefore they have the custody over
the body of the latter. The RTC said that since there was no surviving spouse or children of Vitaliana and
that petitioner was merely a common law spouse , her brothers and sisters have the custody. Also, it
was held that Eugenio was legally married to another woman.

Issue:

Whether the custody of the dead body of Vitaliana be given to her full blood brothers and sisters or her
common law spouse.

Ruling:

The Philippines do not recognize common law marriages. And even if it was recognized, the co-
ownership requires that the man and the woman must not in any way be incapacitated to contract
marriage. In this case, Eugenio was legally married to another woman, which bars him from being legally
capacitated to contract marriages. Thye Civil Code of the Philippines defines “spouse” as a lawfully
wedded spouse not including common law spouses. Hence, the custody of Vitaliana’s body is given to
her brothers and sisters.

Sarmiento v. Court of Appeals

Facts:

Sarmiento purchased a parcel of land. The adjacent lot was owned by the family of Atty. Naguid and
was occupied by Cruz. Sarmiento found out that Cruz is occupying about 71 meters of her lot. She
informed Cruz that she would like to remove the old fence so that she could construct a new one that
will cover the true area of her property but Cruz refused.

Sarmiento filed a complaint for ejectment with the Municipal Circuit Trial Court, which ruled in favor of
Sarmiento. Cruz appealed to the Regional Trial Court and assailed the jurisdiction of the Municipal
Circuit Trial Court, which ruled in favor of Cruz. The Court of Appeals reversed the decision of the
Regional Trial Court and reinstated that of the Municipal Circuit Trial Court.

Issue:

Whether or not the Municipal Circuit Trial Court had jurisdiction over the ejectment case.

Held:

A careful reading of the facts averred in said complaint filed by herein private respondent reveals that
the action is neither one of forcible entry nor of unlawful detainer but essentially involves a boundary
dispute which must be resolved in an accion reivindicatoria on the issue of ownership over the disputed
71 square meters involved.

In forcible entry, one is deprived of physical possession of land or building by means of force,
intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession
thereof after the expiration or termination of his right to hold possession under any contract, express or
implied. In forcible entity, the possession is illegal from the beginning and the basic inquiry centers on
who has the prior possession de facto.

In unlawful detainer, the possession was originally lawful but became unlawful by the expiration or
termination of the right to possess, hence the issue of rightful possession is decisive for, in such action,
the defendant is in actual possession and the plaintiffs cause of action is the termination of the
defendant's right to continue in possession.

What determines the cause of action is the nature of defendant's entry into the land. If the entry is
illegal, then the action which may be filed against the intruder within one year therefrom is forcible
entry. If, on the other hand, the entry is legal but the possession thereafter became illegal, the case is
one of unlawful detainer which must be filed within one year from the date of the last demand.

In the case at bar, the complaint does not characterize herein petitioner's alleged entry into the land,
that is, whether the same was legal or illegal. It does not state how petitioner entered upon the land and
constructed the house and the fence thereon. It is also silent on whether petitioner's possession became
legal before private respondent made a demand on her to remove the fence. The complaint merely
avers that the lot being occupied by petitioner is owned by a third person, not a party to the case, and
that said lot is enclosed by a fence which private respondent claims is an encroachment on the adjacent
lot belonging to her.

The jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or
how and when dispossession started, as in the case at bar, the remedy should either be an accion
publiciana or an accion reivindicatoria in the proper regional trial court.

The Supreme Court reversed the judgment of the Court of Appeals and reinstated the judgment of the
Regional Trial Court ruling that the Municipal Trial Court did not have jurisdiction over the case.

E.O. 209 – FAMILY CODE OF THE PHILIPPINES

[ G.R. No. L-13274, January 30, 1960 ]

REMEDIOS SACLOLO AND ERNESTO PASCUAL, PETITIONER, VS. COURT OF

AGRARIAN RELATIONS AND SANTIAGO MADLANGSAKAY, RESPONDENTS.

NOTES:
 Article 1 – Nature of marriage

FACTS:
 This is a petition for certiorari to review a decision of the Court of Agrarian Relations,
dismissing a suit filed by petitioners to eject respondent Santiago Madlangsakay from a
four-hectare land belonging to petitioner Remedios Saclolo, in order that the same may
be cultivated by her husband, Ernesto Pascual.
 Petitioner Remedios Saclolo is the owner of a landholding (4 ha.), being tenanted by
respondent Santiago Madlangsakay.
 Ernesto Pascual is the husband of Remedios, and the landholding is Remedios'
paraphernal property brought into their marriage.
  Respondent was given notice to the effect that Ernesto Pascual desires to farm the land.
Ernesto Pascual, not gainfully employed, will work the land to support petitioners' family.
 The trial court dismissed the petition
 The reason given by the court below for denying the petition of the landowner and her
husband to cultivate the landholding is Section 50 (a) of Republic Act No. 1199, which
provides that an owner may eject a tenant in order that he may cultivate it, only when he
will personally cultivate his land.

ISSUE:
Whether or not the petitioners' may eject the respondent from the landholding.

RULING:
The order of dismissal sought to be reviewed is hereby set aside and the petition to eject the
respondent from the landholding of Remedios Saclolo is hereby granted.

HELD:
YES. The law allows a tenant to cultivate a piece of agricultural land, held under a contract of
tenancy, either personally or with the aid of labor available from members of this immediate farm
household (Republic Act No. 1199, Section 4, par. 3, as amended by Republic Act No. 2263.)

There is also an express provision of the law which may be construed to give the husband the
right to cultivate a landholding belonging to the wife as paraphernal property. This is Article 137
of the Civil Code of the Philippines, which says:

"ART. 137. The wife shall have the administration of the paraphernal property, unless she delivers
the same to the husband by means of a public instrument empowering him to administer it. * * *."

Under legal principles, by the contract of marriage, a man and a woman enter a joint life,
acting, living and working as one. Whether under the common law or under the civil law,
upon marriage the husband and the wife become one single moral, spiritual and social
being, not only for purposes of procreation but also for the purpose of mutual help and
protection, physically, morally and materially. There is between them a full and complete
community of existence.

If there is unity and community of existence between husband and wife, then the husband may
not be considered as a being distinct and different from the wife, and the cultivation of the wife's
land should be considered as a joint effort of both.
[ G.R. No. 83598, March 07, 1997 ]

LEONCIA BALOGBOG AND GAUDIOSO BALOGBOG, PETITIONERS, VS.HONORABLE

COURT OF APPEALS, RAMONITO BALOGBOG AND GENEROSO BALOGBOG,
RESPONDENTS.

NOTES:
 Article 1 – Law governing validity of marriage. As a General Rule: the law in force at the
time of the marriage shall govern. Exception to the rule (this case): Provisions of the
Spanish Code was not implemented in the Philippines.

FACTS:
 Ramonito and Generoso Balogbog filed an action for partition and accounting against
their Aunt Leoncia and Uncle Gaudioso for partition and accounting of their grandparents’
estate at the Court of First Instance of Cebu City which was granted by the
latter. Leoncia and Gaudioso appealed to the Court of Appeals but the latter affirmed the
lower court’s decision.
  Basilio Balogbog and Genoveva Arnibal died intestate in 1951 and 1961 respectively.
They have three children, Leoncia, Gaudioso and Gavino, their older brother who died in
1935.
 Ramoncito and Generoso were claiming that they were the legitimate children of Gavino
by Catalina Ubas and that, as such they were entitled to the one-third share in the estate
of their grandparents. However, Leoncia and Gaudioso claimed they were not aware that
their brother had two children and that he was married.
 They questioned the validity of the marriage between their brother Gavino and Catalina
despite how Gaudioso himself admitted during a police investigation proceeding that
indeed Ramonito is his nephew as the latter is the son of his elder brother Gavino.
 Respondents presented witnesses. One testified that he knew Gavino and Catalina to be
husband and wife and Ramonito to be their first child because they performed at his
campaign rallies. The witness also contended that he attended their wedding in which
Rev. Father Emiliano Jomao-as officiated and Egmidio Manuel, then a councilor, acted
as one of the witnesses. The second witness testified that private respondents are the
children of Gavino and Catalina. He likewise attended the wedding and was in fact
accompanied Catalina and carry her wedding dress. He also said that he was a carpenter
and he was the one who had made the coffin of Gavino. He also made the coffin of the
couple’s son, Petronilo, who died when he was six. Catalina Ubas likewise testified that
after the wedding, she was handed a “receipt,” presumably a wedding certificate by Fr.
Jomao-as and was burned during the war. She said that she and Gavino lived together in
Obogon and begot three children. She stated that after the death of Gavino, she lived in a
common law relation with a man for a year and then they separated. Private respondents
presented certificates from the Local Civil Registrar and by the Parish Priest of Asturias.
 Leoncia and Gaudioso contended that the marriage of Gavino and Catalina should
have been proven in accordance with Arts. 53 and 54 of the Civil Code of 1889
because this was the law in force at the time of the alleged marriage was
celebrated.
 Art. 53 provides that “marriages celebrated under the Civil Code of 1889 should be
proven only by a certified copy of the memorandum in the Civil Registry, unless the
books thereof have not been kept or have been lost, or unless they are questioned in the
courts, in which case any other proof, such as that of the continuous possession by
parents of the status of husband and wife, may be considered, provided that the
registration of the birth of their children as their legitimate children is also submitted in
evidence”.

ISSUE:
Whether or not Gavino and Catalina’s marriage is valid.

HELD:
Supreme Court affirmed the decisions of the trial court and Court of Appeals in rendering
Gavino and Catalina’s marriage as valid and thus entitle Ramonito and Generoso one third of
their grandparents’ estate.

The court further states that Arts. 42 to 107 of the Civil Code of 889 of Spain did not take
effect, having been suspended by the Governor General of the Philippines shortly after
the extension of that code of this country. Therefore, Arts. 53 and 54 never came into
force. Since this case was brought in the lower court in 1968, the existence of the
marriage must be determined in accordance with the present Civil Code, which repealed
the provisions of the former Civil Code, except as they related to vested rights, and the
rules of evidence. Under the Rules of Court, the presumption is that a man and a woman
conducting themselves as husband and wife are legally married.

Albeit, a marriage contract is considered primary evidence of marriage, failure to present it

would not mean that marriage did not take place. Other evidence may be presented where in
this case evidence consisting of the testimonies of witnesses was held competent to prove the
marriage of Gavino and Catalina in 1929, that they have three children, one of whom, Petronilo,
died at the age of six and that they are recognized by Gavino’s family and by the public as the
legitimate children of Gavino.

[ G.R. No. 3474, September 20, 1907 ]

RAFAEL ENRIQUEZ ET AL., PLAINTIFFS AND APPELLEES, VS. FRANCISCO ENRIQUEZ

ET AL., DEFENDANTS AND APPELLANTS.

NOTES:
 Article 2-6 – Common Law Marriages not recognized in the Philippines

FACTS:
 The plaintiffs brought this action in the Court of First Instance of Manila on the 2d day of
June, 1902, asking that a deed made by Antonio Enriquez on the 27th of March, 1883,
conveying to the defendant Carmen de la Cavada certain real estate in the city of Manila,
be annulled and set aside. Judgment was rendered in the court below to the effect that
the plaintiffs were the owners of an undivided half of the said real estate, and that the
 defendant Carmen de la Cavada should pay to the plaintiffs upward of 13,000 pesos, as
rents and profits thereof.
 Antonio Enriquez and Doña Ciriaca Villanueva were legally married prior to the year
1860; that in 1861 the property in question was acquired by Antonio Enriquez; that it
thereby became a part of the property belonging to the conjugal partnership.
 Doña Ciriaca Villanueva died in 1882; that upon her death an undivided half of the
property passed to her heirs, the plaintiffs; that when, in 1883, Antonio Enriquez
undertook to convey the entire property to the defendant Doña Carmen de la Cavada he,
as a matter of law, conveyed only one half thereof, and that the other half remained and
now is the property of the plaintiffs.

ISSUES:
Whether or not Antonio Enriquez and Doña Ciriaca Villanueva were legally married in 1861.

HELD:
NO. The Court holds that Antonio Enriquez and Doña Ciriaca Villanueva were not legally
married prior to 1865, and that, therefore, when this property was acquired by Antonio in 1861 it
did not become a part of the property belonging to the conjugal partnership, but on the contrary
was a part of the capital which he brought to the marriage. Being a part of the capital brought to
the marriage by the husband, upon the death of the wife the husband surviving her no interest
whatever therein passed to her heirs.

As held by the Supreme Court of the United States, by the common law of England, a
valid marriage might be contracted without the intervention of any ecclesiastical or civil
functionary (Traverse vs. Rheinhardt, 27 Sup. Ct. Rep., 563, decided April 15,1907), yet such
was never the law in these Islands during the Spanish domination here. During the entire
period of that domination no valid marriage could exist unless some ecclesiastical or civil
functionary intervened in its celebration, and the intervention of civil functionaries was limited to
the short time elapsing between the 8th day of December, 1889, when the Civil Code took effect
here, and the 29th day of the same month, when the provisions of Tittle IV, Book I, of that code
were suspended. During the time covered by the lives of Antonio Enriquez and Doña Ciriaca
Villanueva no valid marriage between them could be contracted by their mere agreement to live
together as husband and wife.

There is proof in this case that a marriage, valid in accordance with the laws then in force in
these Islands, was celebrated between these persons in 1865. In order to show that they were
before that time husband and wife, it was necessary to prove that a marriage ceremony in which
an ecclesiastical functionary intervened was duly celebrated. No proof of any such marriage was
offered. As has been said, the fact that prior to 1865 they lived together as husband and wife
and had children is not evidence in this case to show that they were married prior to that time.
Nor is the fact that in the certificates of baptism of these children it is stated that they were the
legitimate children of the lawful marriage of their parents.

The judgment of the court below, which rests solely upon the proposition that at the time of the
death of Doña Ciriaca Villanueva one half of this property passed to her heirs, can. not,
therefore, be sustained.
 WENNING VS. TEEPLE, 144 IND. 189

**Sorry guys, wala ko kakita sa case***

Excerpt from Sta. Maria Book:

It is settled law that when a marriage has been consummated in accordance with the forms of
the law, it is presumed that no legal impediments existed to the parties entering into such
marriage, and the fact, if shown, that either or both of the parties have been previously married,
and that such wife or husband of the first marriage is still living, does not destroy the prima facie
legality of the last marriage. The presumption in such case is that the former marriage has been
legally dissolved, and the burden of proving that it has not rests upon the party seeking to
impeach the last marriage (Wenning v. Teeple, 144 In. 189; Son Cui v. Guepangco, 22 Phil.
216).

[ GR No. L-10071, Oct 31, 1957 ]

TESTATE ESTATE OF GUILLERMO PUATU Y CONSTANTINO, DECEASED. ROSARIO

CAMPOS FERNANDEZ, PETITIONER AND APPELLEE VS. DR. SANTIAGO T. PUATU ET
AL., OPPOSITORS AND APPELLANTS.

NOTES:
 Articles 22-23 – Proof to attack validity of marriage

FACTS:
  This is an appeal from an order of the Court of First Instance of Manila declaring that
appellee Rosario Campos Fernandez is the widow of Guillermo Puatu y Constantino.
 During his lifetime, Guillermo Puatu y Constantino lived maritally in Bulacan with
Nemesia Talastas, now deceased, who begot him 11 children.
 Several years after the commencement of said relations with Nemesia Talastas,
Guillermo maintained a house in Manila, where he stayed whenever in the city with Sole-
dad Gador, who begot him 6 children.
 In the petition filed therefor, it was alleged that Guillermo Puatu y Constantino had died in
Manila, on June 1, 1953; that the deceased was single, of age, Filipino and resident of
Manila; that his only heirs are his nephews, namely, Alfonso (the petitioner), Emiliana and
Mateo, all sur-named Puatu, 'and Pedro, Natividad, Gregorio and Flordeliza, all
surnamed Atienza y Puatu; that the deceased had some properties, but no debts; and
that he died intestate. Petitioner prayed that Mateo Puatu be appointed administrator of
the estate of the deceased.
 An urgent motion to dismiss was filed by petitioners alleging that they are the
acknowledged natural children of the deceased, with whom they had lived continuously,
from their birth up to the time of his death; that they are his sole heirs; that Alfonso Puato
did not mention their names in his petition in order to give the impression that he had a
right to institute the proceedings and to avoid service of notice upon the movants; and
that there is no need of said proceedings for the settlement of the estate of the deceased,
inasmuch as they had paid the only obligation left by the latter upon his death, and they
are all in agreement as to the partition of his estate, which they had been administering
ever since his last illness.
 Accordingly, the movants prayed that the proceedings be dismissed and the letters of
administration issued to Mateo Puatu revoked, or, else, that said letters of administration
be revoked, and Alejandro Puatu be appointed, in lieu of Mateo Puatu, as administrator
of the estate of the deceased.
 Said movants filed a notice of discovery and petition for probate of a will, stating that they
had found a copy of the last will and testament executed by the decedent on November
12, 1944, bearing a stamp of the Court of First Instance of Manila, showing, that the
original of said document had been filed with said court for safekeeping, and praying that
said will be admitted to probate and letters of administration issued to Alejandro T.
Puatu, one of the acknowledged natural children of the deceased.
 The latter's aforementioned nephews objected upon the ground that the instrument
presented for probate is not authentic; that it is not the original will; that it is written in a
language (English) not known to the deceased; and that it had not been executed
conformably to law.
 Soon, thereafter, Atty. Sison filed a similar opposition to the probate of said instrument,
on behalf of Rosario Campos Fernandez, who claimed to have been married to the
deceased in Spain on May 15, 1896.
 After due hearing, the court allowed the aforementioned instrument to probate as the last
will and testament of Guillermo Puatu y Constantino, appointed his son, Alejandro T.
Puatu, as administrator of the estate of the decedent, revoked the letters of
administration issued to Hateo Puatu, and ordered him to turn over said estate to
Alejandro T. Puatu.
 Rosario Campos Fernandez later urged the court to settle her civil status, evidence was
taken thereon holding that she is the lawful surviving spouse of the deceased.

ISSUE:
Whether or not appellee Rosario Campos Fernandez has ever been married to the deceased,
Guillermo Puatu y Constantino.

HELD:
NO.
The lower court held that appellee is the surviving spouse of the deceased, because they had
publicly lived together as husband and wife in Spain and then in the Philippines for about
twenty-one (21) years; because they are presumed, therefore, to "have entered into a lawful
contract of marriage", pursuant to Rule 123, section 69 (bb), of the Rules of Court; and because
this presumption is bolstered up by the aforementioned testimony of the appellee, corroborated
by that of Juan Pedru and Juan Llusia.

However, the following circumstances affect adversely the credibility and weight of appellee's
evidence, namely:

1. Appellee claims to have had some correspondence with the deceased, but could not
produce a single communication of the latter.
2. According to her own testimony, ever since she returned to Spain, in 1917, the deceased
did not support her. What is more, she never asked or demanded any support from him.
3. Appellee explained her failure to produce the marriage contract with the deceased
by saying that the document was lost during the Spanish civil war, and that, likewise, the
records of the church of "Nuestra Sefiora del Pilar" in Madrid were then destroyed.
However, no entry relative to said marriage appears either in the civil registry of Madrid or
in the records of the diocese to which said church belongs. What is more according to a
certification attached to appellants' motion for reconsideration and new trial no priest by
the name of Alfonso Garcia who, allegedly, solemnized the marriage appears in the records
of the Bishopric of Madrid.

The appellee and the decedent had, since 1917, lived separately from each other not only
in different houses, but thousands of miles away from each other for thirty five (35)
years, the least we can say is that the presumption of marriage, relied upon in the
decision appealed from, has been sufficiently offset.

Wherefore, the order appealed from is hereby set aside, and the records remanded to the lower
court for new trial.

[ G.R. Nos. 95122, May 31, 1991 ]

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION),

PETITIONERS, VS. HON. JOSELITO DELA ROSA, PRESIDING JUDGE, RTC MANILA,
BRANCH 29, WILLIAM T. GATCHALIAN, RESPONDENTS.

NOTES:
  Article 26 – All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited…"
 Proof of foreign marriage – This case shifts the burden of proof from the one who asserts
the validity of the marriage to the one assailing the validity of marriage.

FACTS:
 Petition for certiorari and prohibition filed by the SolGen for the Board of Commissioners of
the Bureau of Immigration (formerly the CID) and Board of Special Inquiry to set aside two
orders issued by different judges of RTCs and to enjoin public respondent judges from
acting on the ff. civil cases:
o 1st case: filed by Gatchalian in the RTC of Manila. Judge dela Rosa issued an order
that denied the Motion to Dismiss and restrained petitioners from commencing or
continuing with any proceedings that will lead to the deportation of William
Gatchalian
o 2nd case: filed by Gatchalian’s wife and minor children in the RTC of Valenzuela.
Judge Capulong issued an that enjoined petitioners from proceeding with the
deportation charges against Gatchalian
 July 12, 1960: Santiago Gatchalian, grandfather of William, was recognized by the Bureau
of Immigration as a native-born Filipino Citizen. He also testified that he had 5 children with
his wife Chu Gim Tee: Jose, Gloria, Francisco (William’s father), Elena, and Benjamin.
 June 27, 1961: Then 12-year old William arrived in Manila from Hongkong with Gloria,
Francisco, and Johnson Gatchalian with Certificates of Registration and Identity issued by
the Philippine Consulate in Hongkong based on a cablegram from the Secretary of Foreign
Affairs.
 July 12, 1961: the Board of Special Inquiry admitted William and his companions as
Filipino Citizens.
 July 6, 1962: Board of Commissioners, after reviewing the decision of the Board of Special
Inquiry reversed the decision of the latter and ordered the exclusion of respondent
Gatchalian
 1973: Gatchalian and others covered by the warrant of exclusion filed a motion for re-
hearing with the Board of Special Inquiry. Acting Commissioner Nituda later issued an
order recalling the warrant of arrest against Gatchalian.
 1990: acting director of NBI wrote to the DOJ recommending that Gatchalian and others
covered by the warrant of exclusion be charged with violation of the Immigration act. The
SOJ indorsed the recommendation and a mission order was issued by Commissioner
Domingo of the CID ordering the arrest of Gatchalian.
 Petitioner’s claim that respondent is an alien and should be deported. In support of their
position, petitioners point out that Santiago Gatchalian's marriage with Chu Gim Tee in
China as well as the marriage of Francisco (father of William) Gatchalian to Ong Chiu Kiok,
likewise in China, were not supported by any evidence other than their own self-serving
testimony nor was there any showing what the laws of China were. It is the postulate
advanced by petitioners that for the said marriages to be valid in this country, it should
have been shown that they were valid by the laws of China wherein the same were
contracted. There being none, petitioners conclude that the aforesaid marriages cannot
be considered valid. Hence, Santiago's children, including Francisco, followed the
citizenship of their mother, having been born outside of a valid marriage. Similarly, the
validity of the Francisco's marriage not having been demonstrated, William and Johnson
followed the citizenship of their mother, a Chinese national.
 Respondent argues that petitioners have no jurisdiction with the deportation case until the
courts have resolved the issue of citizenship.

ISSUE:
Whether or not William Gatchalian is a Filipino citizen.

HELD:
YES. William Gatchalian belongs to the class of Filipino citizens contemplated under Sec. 1,
Article IV of the Constitution, which provides: "Section 1. The following are citizens of the
Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution. . . ."
In Miciano v. Brimo (50 Phil. 867 [1924]; Lim and Lim v. Collector of Customs, 36 Phil. 472; Yam
Ka Lim v. Collector of Customs, 30 Phil. 46 [1915]), this Court held that in the absence of
evidence to the contrary, foreign laws on a particular subject are presumed to be the same as
those of the Philippines. In the case at bar, there being no proof of Chinese law relating to
marriage, there arises the presumption that it is the same as that of Philippine law.

The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian much
more on respondent William Gatchalian who was then a twelve-year old minor. The fact is, as
records indicate, Santiago was not pressed by the Citizenship Investigation Board to prove the
laws of China relating to marriage, having been content with the testimony of Santiago that the
Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither
was Francisco Gatchalian's testimony subjected to the same scrutiny by the Board of Special
Inquiry. Nevertheless, the testimonies of Santiago Gatchalian and Francisco Gatchalian before
the Philippine consular and immigration authorities regarding their marriages, birth and
relationship to each other are not self-serving but are admissible in evidence as statements or
declarations regarding family reputation or tradition in matters of pedigree (Sec. 34, Rule
130). Furthermore, this salutary rule of evidence finds support in substantive law. Thus, Art.
267 of the Civil Code provides:

"Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of
status, legitimate filiation may be proved by any other means allowed by the Rules of Court and
special laws." (See also Art. 172 of the Family Code)
Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian
aforementioned are not self-serving but are competent proof of filiation (Art. 172 [2], Family
Code).

Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage
formally valid where celebrated is valid everywhere. Referring to marriages contracted
abroad, Art. 71 of the Civil Code (now Art. 26 of the Family Code) provides that "(a)ll
marriages performed outside of the Philippines in accordance with the laws in force in
the country where they were performed, and valid there as such, shall also be valid in
this country ..." And any doubt as to the validity of the matrimonial unity and the extent as to
how far the validity of such marriage may be extended to the consequences of the coverture is
answered by Art. 220 of the Civil Code in this manner: "In case of doubt, all presumptions
favor the solidarity of the family. Thus, every intendment of law or facts leans toward the
validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children,
the community of property during marriage, the authority of parents over their children,
and the validity of defense for any member of the family in case of unlawful aggression."
(Italics supplied). Bearing in mind the "processual presumption" enunciated in Miciano and
other cases, he who asserts that the marriage is not valid under our law bears the burden of
proof to present the foreign law.

Having declared the assailed marriages as valid, respondent William Gatchalian follows the
citizenship of his father Francisco, a Filipino, as a legitimate child of the latter. Francisco, in
turn, is likewise a Filipino being the legitimate child of Santiago Gatchalian who (the latter) is
admittedly a Filipino citizen whose Philippine citizenship was recognized by the Bureau of
Immigration in an order dated July 12, 1960.
WHEREFORE, G.R. Nos. 95122-23 is DISMISSED for lack of merit; G.R. Nos. 95612-13 is
hereby GRANTED and respondent William Gatchalian is declared a Filipino citizen. Petitioners
are hereby permanently enjoined from continuing with the deportation proceedings docketed as
DC No. 90-523 for lack of jurisdiction over respondent Gatchalian, he being a Filipino citizen.
Duncan v. Glaxo

FACTS:
Petitioner, Pedro Tecson was hired by respondent Glaxo as medical representative, after
Tecson had undergone training and orientation. He signed a contract of employment which
stipulates, among other, that he agrees to study and abide by existing company rules. Another
stipulation which is also found of Glaxo’s Employee Code of Conduct provides the duty to disclose
to management any existing or future relationship by consanguinity or affinity with co-employees
or employees of competing drug companies and should management find that such relationship
poses a possible conflict of interest, to resign from that company.
Tecson was initially assigned to market Glaxo’s products in the Camarines Sur sales area.
He, subsequently entered into a romantic relationship with Bettsy, branch coordinator of Astra in
Albay, a competitor of Glaxo. She supervised the district managers and medical representatives
of her company and prepared marketing strategies for Astra in that area. The two married even
with the several reminders given by the District Manager to Tecson. In January 1999, Tecson’s
superiors informed him that his marriage to Bettsy gave rise to conflict of interest. Despite several
reminders and the allowances, Tecson was not able to resolve the issue on conflicting interest.
The situation eventually led to his alleged constructive dismissal. This is a petition for review on
certiorari assailing CA’s decision and resolution.
ISSUE:
Is Glaxo’s policy prohibiting its employees from marrying n employee of a competitor company is
valid?
HELD:
Yes. No reversible error can be ascribed to the CA when it ruled that Glaxo’s policy
prohibiting an employee from having a relationship with an employee of a competitor company is
a valid exercise of management prerogative. Glaxo has a right to guard its trade secrets,
manufacturing formulas, marketing strategies and other confidential programs and information
from competitors, especially so that it and Astra are rival companies in the highly competitive
pharmaceutical industry.
The prohibition against personal or marital relationships with employees of competitor
companies upon Glaxo’s employees is reasonable under the circumstances because
relationships of that nature might compromise the interests of the company. In laying down the
assailed company policy, Glaxo only aims to protect its interest against the possibility that a
competitor company will gain access to its secrets and procedures. That Glaxo possesses the
right to protect its economic interests cannot be denied. No less than the Constitution recognizes
the right of enterprises to adopt and enforce such policy to protect its right to reasonable returns
on investments and o expansion and growth. Indeed, while our laws endeavor to give life to the
constitutional policy on social justice and the protection of labor, it does not mean that every labor
dispute will be decided in favor of the workers. The law also recognizes that management has
rights which are also entitled to respect and enforcement in the interest of fair play.

Karganilla v. Familiar

FACTS:
Kilburn v. Kilburn

FACTS:
Kilburn is the appellant and Estate Kilburn is the respondent. It is an important case in
South African property law. For a mortgage to be valid, there must be legal or natural obligation
to which the hypothecation is accessory. In Kilburn, a husband had, before his marriage, passed
and registered a notarial bond for 500 as a second charge on all his property in favour of his wife.
HELD:
The Court found as a fact that, although the bond purported to secure a sum of 500 which
the husband had verbally promised to pay his wife, it was not serious promise, and there was
therefore no intention to pay that sum. The intention of the spouses in agreeing to the notarial
bond, was only to give preferential claim on the sum if the husband were to be declared insolvent.
The principal debt was invalid, and so, in turn, was the notarial bonds. As, therefore, there
was no legal obligation secured by the bond, the wife could not, on the insolvency of her husband,
claim in a concusrsus creditorum on the bond. The decision of the Court a quo was thus
confirmed.
Ramos v. Ortugar
FACTS:
Percy Hill, an American cohabited with Martina Ramos and had with her 6 children. Two of
themare Richard and Marvin Hill and the others died in infancy. He started acquiring lands by
purchase or homestead and improving and cultivating tem until at the time of his death. His
holdings were worth over P100,000.00.
Percy Hill canonically married an American woman by the name of Helen Livingstone and
of that union 3 children were born,all resides in the United States. When Helen died, Hill married
Caridad Ortuzar by whom he had one daughter. Another defendant in the case was Maximo
Bustos, who purchased the property sold by the heirs of Hill.
During the intestate prorceedings, Marvin and Richard Hill intervened claiming to be the
deceased’s children. The court conducted a hearing as to the rights of the two but declared in
order that they are not rightful heirs, thereby excluding them from participating in the distribution
of estate. Marvin and Richard failed to appeal in the decision.
Six yrs after the partition, Martina came before the Cfi claiming that she was the lawful wife
and her children were the legitimate kids of the deceased. The CFI decided against her because
no Certificate of Marriage was produced and no record was made in the Civil Registry.
ISSUE:
Whether or not Martina, after 6 yrs could still raise the issues already answered by the CFI in the
special proceedings?
HELD:
On Sept 3 1937, the intestate proceedings for the settlement of Percy Hill’s estate started.
However, the records of these proceedings disappeared from the files of the court, however, the
court “docket for special proceeding cases” were not lost or destroyed.
 Based on the entries, in the intestate proceedings, Rivhard and Marvin intervened, or
sought to intervene, on the allegation that they were the deceased’s legitimate sons entitled to
share in the inheritance. Before intervention was allowed, the Hill brothers were required to
establish their right and interest in the estate as forced heirs. After the hearing, the petition to
intervene was denied, whereupon the would be intervenors took steps to appeal was disapproved.
It thus appears beyond reasonable doubt that all the facts raised in the present suit were
alleged, discussed, and definitely adjudicated in the expedience of Hill’s intestate. Thus, it is res
judicta. The only instance that the Court can think of in which a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to negligence.
The better practice to secure relief is reopening of the same case by proper motion within
the reglementary period, instead of an independent action of the effect of which if successful,
would be, as in the instant case, for another court or judge to throw out a decision or order already
final and executed and reshuffle properties long ago distributed and disposed of.
State v. Bolsinger
FACTS:
Bolsinger was the program supervisor of a highly structured test facility for delinquents
boys, Wittenymer Youth Center. The investigation revealed through interviews with past and
present youth at the camp, that Bolsinger would take boys into a private room and touch their
genitals, saying he was checking for bruises, scratches, or testicular cancer. The testimony of the
boys revealed that Bolsinger asked permission to touch them in this way and that he did not
appear to them to be gaining any sexual gratification from the touching. The boys testified that
they were not aware that they were being touched in a sexual manner. Prior to trial, Bolsinger
filed a motion to suppress evidence seized from his home, which was denied by the court.
ISSUE:
Whether or not it is a a third degree sexual abuse.
HELD:
The evidence shows that Bolsinger was acting outside the scope of his duties, his actions
took place in private, and he did not document these procedures. Considered in light of this
evidence a rational finder of fact could conclude that Bolsinger committed sex acts under the guise
of performing medical examinations. The trial court did not err in overruling his motions for
judgement of acquittal on charges of sexual abuse by a counselor or sexual misconduct with
offenders.
Manzano v. Sanchez

FACTS:
Herminia Manzano was the lawful wife of the late David Manzano having been married on
May 21, 1966 in Caloocan. On March 22, 1993, her husband contracted another marriage with
Luzviminda Payao before respondent judge. The marriage contract clearly stated that both
contracting parties were separated thus, respondent judge ought to know that the marriage was
void and bigamous. He claims that when he officiated the marriage of David and Payao, he knew
that they 2 had been living together as husband and wife for 7 yrs as manifested in their joint
affidavit that they both left their families and had never cohabit or communicated with their
spouses due to constant quarrels.
ISSUE:
Wheteher the solemnization of a marriage between 2 contracting parties who both have an
existing marriage can contract marriage if they have been cohabitating for 5 yrs under Art 34 of
Family Code.
HELD:
Among the requisites of Art 34 is that parties must have no legal impediment to marry each
other. Considering that both parties has a subsisting marriage as indicated in their marriage
contract that they are both separated is an impediment that would make their subsequent
marriage null and void. Just like separation, free and voluntary cohabitation with another person
for atleast 5 yrs does not severe the tie of a subsisting previous marriage . Clearly, respondent
Judge Sanchez demonstrated gross ignorance of the law when he solemnized a void and
bigamous marriage.
Case: Zablocki v. Redhail
Note: Winconsin statute not permitting resident to marry because of the unsatisfied
requirement asked by the court.

U.S. Supreme Court

Zablocki v. Redhail, 434 U.S. 374 (1978)
No. 76-879
Argued October 4, 1977
Decided January 18, 1978

FACTS:

Appellee Redhail was unable to enter into a lawful marriage under a Wisconsin statute that did not permit
a resident to marry without court permission if he has a minor issue not in his custody which he is obligated
to pay support by court order.

The statute allowed court permission only if the marriage applicant submits proof of compliance with the
support obligation and additionally demonstrates that the children covered by the support order are not then
or likely thereafter to become public charges. In 1972 when appellee was a minor high school student he
was found to be the father of a baby girl born out of wedlock and ordered to pay monthly support. Appellee
was unemployed and indigent until 1974, and unable to make payments.

In 1974 appellee applied for a marriage certificate with appellant Zablocki, a county clerk. The application
was denied due to appellee’s failure to obtain the required court order. It was stipulated that appellee was
in arrearage on his payments and his child had been a public ward since birth, therefore he was unable to
satisfy the requirements for a court order. Appellee filed his complaint on behalf of himself and all similarly
situated Wisconsin residents.

ISSUE:

Is a Wisconsin statute that provides that members of a certain class of residents cannot marry, within the
State or elsewhere, without first obtaining a court order granting permission to marry constitutional?

RULING:

A law that significantly interferes with a certain group's ability to exercise a fundamental right is invalid
unless it furthers important state interests and is narrowly tailored to pursue only those important goals.
Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship
may legitimately be imposed.

Analysis:
The statute provides that a Wisconsin resident may not marry without court permission if they have a minor
child that they do not have custody of and which they have the obligation to pay child support… they have
to go to court and prove that they can and will support the child.

State interests: (1) keep kids off welfare and (2) also to counsel the marriage-applicant as to necessity of
fulfilling his prior child support obligations

Since the right to marry is fundamental, the statute that interferes with marriage will have to undergo critical
examination of the state interests advanced in support of the classification. When a statutory classification
significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported
by sufficiently important state interests and is closely tailored to effectuate only those interests.

Marriage is considered a liberty protected by the Due Process Clause and also as a right of privacy provided
by the 14th Amendment. Court says it would make little sense to recognize a right of privacy with respect
to other matters of family life and not with respect to the decision to enter the relationship that is the
foundation of the family in our society.
Case: Jones vs. Hallahan
Note: Same Sex Marriage

Court of Appeals of Kentucky

Marjorie JONES et al., Appellants, v. James HALLAHAN, Clerk of the JeffersonCounty Court,
Appellee.
501 S.W.2d 588 (1973)
November 9, 1973

FACTS:

Marjorie Jones and her partner are female appellants who tried to acquire a license to marry; this was denied
to them by the Jefferson Circuit Court. As a result, they appeal from this judgment at the Court Appeals.

Appellants contend that the failure of the clerk to issue the license deprived them of three basic
constitutional rights, namely, the right to marry; the right of association; and the right to free exercise of
religion. They also contend that the refusal subjects them to cruel and unusual punishment.

ISSUE:

Whether or not two persons of the same sex can enter marriage.

RULING:

Kentucky statutes do not specifically prohibit marriage between persons of the same sex nor do they
authorize the issuance of a marriage license to such persons. It appears that appellants are prevented from
marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to
issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.

Marriage was a custom long before the state commenced to issue licenses for that purpose. For a time the
records of marriage were kept by the church. Some states even now recognize a common-law marriage
which has neither the benefit of license nor clergy. In all cases, however, marriage has always been
considered as the union of a man and a woman and we have been presented with no authority to the contrary.

A license to enter into a status or a relationship which the parties are incapable of achieving is a nullity. If
the appellants had concealed from the clerk the fact that they were of the same sex and he had issued a
license to them and a ceremony had been performed, the resulting relationship would not constitute a
marriage.

In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage
license because what they propose is not a marriage.

Case: Adong vs Cheong Seng Gee

Note: Chinese and Mohammedan Marriage

IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased.

MORA ADONG, petitioner-appellant,
vs.
CHEONG SENG GEE, opponent-appellant.
43 Phil 43 [GR No. 18081 March 3, 1922]

FACTS:

Cheong Boo, a native of China died in Zamboanga, Philippine Islands on August 5, 1919 and left property
worth nearly P100,000 which is now being claimed by two parties - (1) Cheong Seng Gee who alleged that
he was a legitimate child by marriage contracted by Cheong Boo with Tan Bit in China in 1985, and (2)
Mora Adong who alleged that she had been lawfully married to Cheong Boo in 1896 in Basilan, Philippine
Islands and had two daughters with the deceased namely Payang and Rosalia.

The conflicting claims to Cheong Boo’s estate were ventilated in the lower court that ruled that Cheong
Seng Gee failed to sufficiently establish the Chinese marriage through a mere letter testifying that Cheong
Boo and Tan Bit married each other but that because Cheong Seng Gee had been admitted to the Philippine
Islands as the son of the deceased, he should share in the estate as a natural child.

With reference to the allegations of Mora Adong and her daughters, the trial court reached the conclusion
that the marriage between Adong and Cheong Boo had been adequately proved but that under the laws of
the Philippine Islands it could not be held to be a lawful marriage and thus the daughter Payang and Rosalia
would inherit as natural children. The lower court believes that Mohammedan marriages are not valid under
the Philippine Island’s laws this as an Imam as a solemnizing officer and under Quaranic laws.

ISSUE/S:

1) Whether or not the chinese marriage is valid and recognizable in the Philippines.

2) Whether or not the mohammedan marriage is valid

RULING:

(FOR STATCON) The Supreme Court held that marriage in this jurisdiction is not only a civil contract
but it is a new relation, an instruction in the maintenance of which the public is deeply interested. The
presumption as to marriage is that every intendment of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are presumed, in the absence of counter-presumption or evidence
special to the case, to be in fact married. The reason is that such is the common order of society, and if the
parties were not what they thus hold themselves out as being, they would be living in the constant violation
of decency of the law. As to retroactive force, marriage laws is in the nature of a curative provision intended
to safeguard society by legalizing prior marriages. Public policy should aid acts intended to validate
marriages and should retard acts intended to invalidate marriages. This as for public policy, the courts can
properly incline the scales of their decision in favor of that solution which will most effectively promote
the public policy. That is the true construction which will best carry legislative intention into effect.
(FOR PERSONS) Sec. IV of the Marriage law provides that “all marriages contracted outside the islands,
which would be valid by the laws of the country in which the same were contracted, are valid in these
islands. To establish a valid foreign marriage pursuant to this comity provision, it is first necessary to prove
before the courts of the Islands the existence of the foreign law as a question of fact, and it is then necessary
to prove the alleged foreign marriage by convincing evidence. A Philippine marriage followed by 23 years
of uninterrupted marital life, should not be impugned and discredited, after the death of the husband through
an alleged prior Chinese marriage, “save upon proof so clear, strong and unequivocal as to produce a moral
conviction of the existence of such impediment.” A marriage alleged to have been contracted in China and
proven mainly by a so-called matrimonial letter held not to be valid in the Philippines.

Case: Young vs. Mapayo

Note: Marriage Conspiracy

MARLAN YOUNG, complainant,

vs.
JUDGE HILARIO I. MAPAYO, Regional Trial Court, Branch 19, Digos, Davao del Sur,
respondent.

FACTS:

Complainant Young is an American residing in Davao, filed a complaint against respondent Judge Mapayo
for grave misconduct. Young alleges respondent performed marriage between him and Virginia Parba on
March 15, 1993 and that the respondent demanded and received P10,000.00 for the ceremony. The
complainant adds that he was out of the country when the marriage was officiated and also filed annulment
for said marriage but still no development after 2 years.

Moreover, the complainant alleges that there was a conspiracy between Mapayo and Parba because they
threatened him with deportation. Mapayo submitted an affidavit denying all allegations and the same with
Parba. The marriage was later annulled. The complaint was referred to Associate Justice Salazar-Fernando
for investigation, report and recommendation and held that Mapayo be absolved of the charges of grave
misconduct. The complainant later on executed an affidavit withdrawing his complaint against respondent
but such withdrawal will not result to dismissal of complaint.
The Court has held in a number of instances that mere desistance on the part of complainant does not warrant
the dismissal of administrative complaints against members of the bench. The withdrawal of complaints
cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges
made and to discipline, such as the results of its investigation may warrant, an erring respondent. The Court's
interest in the affairs of the judiciary is a paramount concern that must not know bounds

ISSUE:

Whether or not respondent Mapayo committed grave misconduct.

RULING:

Charges against respondent were not proven. With regard to the respondent receiving money, the
complainant later on stated that the money was not given to the respondent but to the aunt of Parba during
the ceremony. With regards to the other allegation of solemnizing the marriage, a certification from the
computer Section of the Bureau of Immigration stated that Young departed via Northwest Airlines on March
16, 1993 and arrived Manila via the same airline on October 6, 1993; departed Manila via the same airline
on October 29, 1993 and arrived Manila on February 8, 1994 which only proves that complainant was
indeed out of the Philippines at the time the marriage was celebrated on June 9, 1993. However, it cannot
be known for certain that Young who had a birth date of January 20, 1942 and the one who left the
Philippines on March 16, 1993 was the same Young who arrived on October 6, 1993 having the birth date
of June 20, 1942. Thus, it cannot be ascertained if the complainant entered the country through port other
than the above-mentioned airports. Also, alleged entries on the complainant’s passport could hardly be read
and cannot be compared to the original because complainant refused to produce the original documents.
Case: US. vs. McLeod
Note: Residence Rental; Discretionary Restitution Statute

United States Court of Appeals,Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jackie McLEOD, Defendant-Appellant.

No. 93-6048.
Decided: May 26, 1995
FACTS:

The essential facts are not in dispute. In September 2004, and at all relevant times thereafter, Kevin Flessert
was on active duty in the U.S. Army. He and his wife, Kristina, rented a residence in Wilson, Michigan,
for Kristina and the couple's two children, while Kevin was away on military duty. Kristina was then
pregnant with their third child. The rent for October and November 2004 was paid in advance. During the
month of November 2004, Kristina traveled to visit relatives in Wisconsin. During this trip she encountered
problems with her pregnancy, and was unable to return to the home in Wilson. When the December 2004
rent was a mere 12 days late, McLeod returned to Wilson from his residence in Arizona; threw all of the
Flesserts' belongings out of the house; and padlocked it. This was all accomplished without any court order.
The entire lot of personal belongings have disappeared. McLeod knew that Kevin was elsewhere on active
duty with the U.S. Army.

The Flesserts filed a civil suit against McLeod in the District Court in Menominee, Michigan; and on March
31, 2006, they received a default civil judgment against McLeod in the amount of $15,300.28 for the value
of their lost property, relocation expenses, and court costs. This debt was discharged on June 18, 2007, in a
bankruptcy proceeding filed by McLeod. In the meantime, however, McLeod on May 17, 2007, pled guilty
to the Class A misdemeanor in the instant case pursuant to a plea agreement. The plea agreement provided,
among other things, that "The defendant agrees to make full restitution to the victims of his crime for the
losses he caused."

ISSUE:

Whether or not the Magistrate Judge ordered the proper amount of restitution

RULING:

The court held that the Magistrate Judge ordered the proper amount of restitution
And there was no abuse of discretion. An abuse of discretion exists when the trial court applies the wrong
legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact. In
actuality, however, the crime of which McLeod was convicted falls under neither the discretionary
restitution statute ( 18 U.S.C. § 3663), nor the mandatory restitution statute ( 18 U.S.C. § 3663A).

Case: PBCom vs. Trazo

Note: Debitting of account

PHILIPPINE BANK OF COMMUNICATIONS and ROMEO G. DELA ROSA, petitioners,

Vs.
ELENITA B. TRAZO, respondent.
G.R. No. 165500
August 30, 2006

FACTS:
Petitioner Philippine Bank of Communications (PBCOM), respondent Elenita B. Trazo opened a payroll
account with China Banking Corporation (CBC) under Current Account No. 101-003921-9. On December
29,1997, petitioner Romeo G. dela Rosa, PBCOM assistant vice-president, instructed CBC to credit all
accounts under its payroll with the medical and clothing subsidy for the year 1998.

Respondent Trazo resign from petitioner PBCom on 31 December 1997. Petitioner dela Rosa wrote William
Lim, CBC senior assistant vice-president, on 5 January 1997 authorizing/directing CBC/Lim to debit the
sum of P7,000.00 from respondent Trazos current account.

Respondent Trazo drew checks against her current account in favor of Bliss Development Corporation
(BDC) and the House of Sara Lee Phils., Inc. However, the checks were dishonored by CBC due to
insufficiency of funds, which was occasioned by the P7,000.00 debit from her current account. She then
instituted an action for damages against PBCOM, dela Rosa, CBC, and Lim before the Regional Trial Court
(RTC) of Quezon City (Branch 79) averring that they had no authority to debiting her account.

Later on June 16, 1998, CBC and Lim filed a Motion to Dismiss the case on the ground of improper venue.
On 24 June 1998, PBCOM and dela Rosa filed their own Motion to Dismiss on the ground that the complaint
failed to state a cause of action.

ISSUE/S:

1) Whether or not the allegations of the complaint are sufficient to constitute a cause of action.
2) Whether or not the COURT OF APPEALS erred in finding that the venue clause in the application for
new current accounts is exclusive.

RULING:

1) Yes. In the case at bar, the allegations in the complaint verily show a cause of action. It provides that
defendants PBCOM and ROMEO G. DE LA ROSA had no cause nor reason to unilaterally order the
debitting (sic) of plaintiffs account as it was her personal property and not of defendant PBCOM. The
Complaint also described the action of all defendants, including petitioners PBCOM and dela Rosa, as
unjust and illegal, and done in a wanton, reckless and oppressive manner. The cause of action stated in the
Complaint, therefore, consists in (1) a right in favor of the plaintiff, which in this case consists of a right to
her personal property; (2) an obligation on the part of the named defendant to respect her right to her
personal property; and (3) an act of such defendant violative of the right of the plaintiff, which in this case
is the order by petitioners to CBC and Lim to debit respondent Trazos account, an act which petitioners
allege to have caused them damage.

2. No. The stipulation (In case of litigation hereunder, venue shall be in the City Court or Court of First
Instance of Manila as the case may be for determination of any and all questions arising thereunder)
concerning the venue clause did not contain any restricting words. The parties must be able to show that
the stipulation is exclusive. Thus, sans words expressing the parties intention to restrict the filing of a suit
in a particular place, courts will allow the filing of a case in any of the venues prescribed by law or stipulated
by the parties, as long as the jurisdictional requirements are followed.

Prepared by:
Mythel Faith T. Solis

For:
PFR Class of 1-Aristotle
 GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, v. REDERICK A. RECIO,
respondent.
G.R. No. 138322, October 2, 2001

FACTS:

Respondent Rederick Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987. They lived together as husband and wife in Australia. On May 18, 1989, a decree
of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26,
1992, respondent became an Australian citizen and was married again to petitioner Grace Garcia-Recio, a
Filipina on January 12, 1994 in Cabanatuan City. In their application for a marriage license, respondent was
declared as “single” and “Filipino.”

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of
their marriage.

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage on the ground of
bigamy. Respondent allegedly had a prior subsisting marriage at the time he married her. On his Answer,
Rederick contended that his first marriage was validly dissolved; thus, he was legally capacitated to marry
Grace.

On July 7, 1998 or about five years after the couple’s wedding and while the suit for the declaration of
nullity was pending , respondent was able to secure a divorce decree from a family court in Sydney,
Australia because the “marriage had irretrievably broken down.”

The Regional Trial Court declared the marriage of Rederick and Grace Recio dissolved on the ground that
the Australian divorce had ended the marriage of the couple thus there was no more marital union to nullify
or annul.

ISSUE:

1.) Whether or not the divorce between respondent and Editha Samson was proven.

2.) Whether or not respondent was proven to be legally capacitated to marry petitioner

RULING:

1st issue:

The Supreme Court ruled that the mere presentation of the divorce decree of respondent’s marriage to
Samson is insufficient. Before a foreign divorce decree can be recognized by our courts, the party pleading
it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.
Furthermore, the divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court. However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.

2nd issue:

Australian divorce decree contains a restriction that reads:

“1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has
died) commits the offence of bigamy.”
This quotation bolsters our contention that the divorrecce obtained by respondent may have been restricted.
It did not absolutely establish his legal capacity to remarry according to his national law. Hence, the Court
find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso
facto restored respondent’s capacity to remarry despite the paucity of evidence on this matter.

The Supreme Court remanded the case to the court a quo for the purpose of receiving evidence. The Court
mentioned that they cannot grant petitioner’s prayer to declare her marriage to respondent null and void
because of the question on latter’s legal capacity to marry.

U.S. Supreme Court

Jackson v. Jackson, 91 U.S. 122 (1875)

Jackson v. Jackson

91 U.S. 122

APPEAL FROM THE SUPREME COURT

OF THE DISTRICT OF COLUMBIA

Syllabus

1. Although, by the common law, the money which the wife has at the time of her marriage, not secured
to her by a settlement or contract, and that which she subsequently earns, belong to the husband, it is
competent and lawful for him to allow its investment in the purchase and improvement of real property
for her separate use if the rights of existing creditors are not thereby impaired.

2. The doctrine of resulting trusts has no application to an investment of this kind; it constitutes a
voluntary settlement upon the wife, whether made through the husband or directly by the wife with his
consent.

3. A divorce granted to the wife for cruel treatment by the husband is not of itself sufficient reason for
awarding to him any portion of the property thus settled upon her.

This is a case of divorce. The parties were married on the 25th of November, 1856, in the District of
Columbia, where they then and ever since have resided. Each prayed for a dissolution of the marriage
contract for the alleged misconduct of the other. The appellee, in his cross-bill, set up that the appellant
held in her individual name the title to certain real estate in said District which had been acquired and paid
for since their marriage with his money and earnings, and prayed that she be decreed to convey the same
to him.

The appellant's answer to the cross-bill alleged that the land had been purchased with money received
from her father's estate, and from the proceeds of her own industry and savings.

The cause being set down for hearing, the court found as a matter of fact that the appellee was guilty of
cruel treatment, as charged in the appellant's bill; that the cause of divorce in the cross-bill mentioned was
not made out; and that the property was in part acquired and paid for with money belonging to the
appellant at the time of her marriage, and for the rest with moneys earned by the joint efforts of said
parties.

The court thereupon decreed that the married relations between the parties be dissolved; that the title to
the property be held by the appellee in trust for both parties; and that, from the date of the decree, the
appellant should hold, as of her own absolute right, a specifically described portion thereof, and convey in
fee simple the remainder to the appellee.

Page 91 U. S. 123

From so much of the decree as relates to the property, the plaintiff below appealed to the general term of
said supreme court. The decree being affirmed, an appeal was taken to this Court.
There is no conflict in the proofs as to the purchase of the real estate by the appellant with the money
which she possessed at the time of her marriage. The rent of the house which was then standing on the
property, and her earnings, were used in the erection of the additional buildings; but the evidence adduced
by the appellee tended to show that a part of his earnings was applied to the same purpose.

The appellant took the deed in her own name, paid taxes on the property, caused it to be insured, and
managed and controlled it as her own separate estate, with the full knowledge and consent of the appellee.

The common law as to the rights of a married woman to real or personal property belonging to her at the
time of her marriage, or thereafter acquired, prevailed in said District until April 20, 1869, when an act
was passed to regulate such rights. 16 Stat. 45.

The ninth section of the "Act to authorize divorces in the District of Columbia, and for other purposes,"
approved June 19, 1860, 12 Stat. 59, provides

"That in all cases where a divorce is granted, the court allowing the same shall have power, if it see fit, to
award alimony to the wife and to retain her right of dower, and to award to the wife such property, or the
value thereof, as she had when she was married, or such part, or the value thereof, as the court may deem
reasonable, having a regard to the circumstances of the husband at the time of the divorce."

The above provisions, except insofar as they relate to alimony and the right of dower, appear not to have
been reenacted in the Revised Statutes.

MR. JUSTICE FIELD delivered the opinion of the Court.

The land in controversy in this case was purchased by the wife with money which she had previous to her
marriage, given to her by her father. The buildings erected thereon were constructed

Page 91 U. S. 124

partly with such money, and partly with her subsequent earnings. The deed of the land was taken in her
name; the contract for the houses was made by her alone with the builder; the policy of insurance upon
the buildings was executed to her; and she paid the taxes upon the property. It is true that at the date of the
marriage, and when the land was purchased and the improvements were made, the common law governed
in the District of Columbia as to the rights of married women to the personal property possessed by them
previous to their marriage, and not secured by a settlement or contract to their separate use, and as to their
subsequent earnings. By that law, the money which the wife then possessed and her subsequent earnings
belonged exclusively to her husband. They vested as absolutely in him as though the money had been
originally his, and the earnings were the proceeds of his own labor and industry. This harsh rule of the
common law was founded upon the idea that as the husband was bound by the marriage to support the
wife and the rest of the family, he was entitled to whatever she possessed or subsequently acquired which
was available for that purpose -- a rule which would have had some good ground for its existence had it
only applied when the money or earnings of the wife were necessary for that purpose. But, becoming
absolutely the property of the husband, they were subject to his disposal without regard to the necessities
of the family, and might be taken from them at the suit of his creditors. They partook of the condition, and
were subject to the fate, of his separate property.

But though the money which the wife in the present case had at her marriage, and her subsequent
earnings, must be regarded as the property of the husband, it was competent and lawful for him to allow
her to invest them for her own use, so as to be beyond his reach and control. Being at the time free from
debt, he could have taken whatever money she had, whether given to her or earned by her own labor, and
purchased with it the land in controversy, and received the deed in her name. The investment would then
have been an advancement for her benefit -- a voluntary settlement upon her, and the subsequent
application of her earnings to the construction of improvements would have equally been a legal
disposition of them. The improvement of property settled upon the wife

Page 91 U. S. 125

is not forbidden to the husband, if not made with a fraudulent intent, and the moneys used for that purpose
do not interfere with any rights of existing creditors.
The law on the subject of post-nuptial settlements of this character is well settled, and will be found stated
in numerous adjudications of the American courts. Picquet v. Swan, 4 Mas. 444; Haskell v. Bakewell, 10
B.Mon. 206. The doctrine of resulting trusts, arising where a conveyance is taken in the name of one
person and the consideration is advanced by another, has no application to investments of this kind. Such
trusts are raised by the law from the presumed intention of the parties, and the natural equity that he who
furnishes the means for the acquisition of property should enjoy its benefits. But no presumption that a
personal benefit was intended to the party advancing the funds for a purchase in the name of another can
arise where an obligation exists on his part, legal or moral, to provide for the grantee, as in the case of a
husband for his wife, or a father for his child. The circumstance that the grantee stands in one of these
relations to the party is of itself sufficient evidence to rebut the presumption of a resulting trust and to
create a contrary presumption of an advancement for the grantee's benefit. Murless v. Franklin, 1 Swans.
17; Grey v. Grey, 2 id. 597; Finch v. Finch, 15 Ves. 50; Guthrie v. Gardner, 19 Wend. 414; Perry on
Trusts, secs. 143, 144.

The case of Sexton v. Wheaton, 8 Wheat. 229, which arose in the District of Columbia, is a determination
of this Court upon the points here presented. There the husband had purchased a house and lot within the
District, and taken the conveyance in the name of his wife, and afterwards improvements were made upon
the property. Subsequent creditors, having obtained judgment against him, filed a bill to subject the
property to its payment, contending that the conveyance to the wife was fraudulent and void as to them,
and praying that, if the conveyance was sustained, the wife might be compelled to account for the value of
the improvements. But the Court held, Mr. Chief Justice Marshall delivering its opinion, that, the husband
at the time being free from debt, the conveyance to the wife was to be deemed a voluntary settlement
upon her which, not being made with any fraudulent intent, was operative and binding against subsequent
creditors, and that the

Page 91 U. S. 126

improvements upon the property stood upon the same footing as the conveyance itself, they being made
before the debts were contracted. The Chief Justice observed that it would seem to be a consequence of
that absolute power which a man possesses over his own property, that he might make any disposition of
it which did not interfere with the existing rights of others; that such disposition, if it were fair and real,
would be valid; and that the limitations upon this power were those only which were prescribed by law.
The Chief Justice then proceeded to show that the law only limited this power when its exercise impaired
the rights of existing creditors, and that a voluntary settlement by a husband in favor of his wife could not
be impeached by subsequent creditors unless it was made to defraud them.

The present case is one much stronger than the case cited, for here there are no creditors complaining. It
differs from the one cited in this, that the investment was made directly by the wife, instead of being made
through the husband; but we do not perceive in this fact any valid objection to the legality of the
transaction. There can be no doubt that she acted with his approval. Fifteen years of acquiescence in her
holding the land in her name, and in making improvements thereon with her earnings, ought to be deemed
satisfactory evidence of his original authorization of the investments. The amount paid for the land was
only $300 (less than one-sixth of the sum received from her father), and the whole cost of the
improvements for the fifteen years was only about $2,000; and it does not appear that any third parties
have been in any respect prejudiced by the investments or have ever questioned their validity.

The divorce decreed was not of itself a sufficient reason for restoring to the husband any rights to the
property thus settled upon the wife. That was granted for cruel treatment, and whatever may be the power
of the court over the property of parties upon the dissolution of the marriage relation, there was no call for
its exercise in a case like the present.

The decree of the Supreme Court of the District, so far as it awards any portion of the property in
controversy to the husband, and directs a conveyance by the wife to him, must be reversed, and it is so
ordered.

Page 91 U. S. 127

MR. JUSTICE DAVIS dissenting.

I agree to the legal propositions advanced by the court, but in my opinion the evidence in this case does
not warrant the application that has been made of them.

It would serve no useful purpose to discuss the evidence, in order to show that it is so, and I shall
therefore content myself with saying that it justified the conclusion reached by the court below, that the
property should be divided between the parties. As the appeal only brought up the question of property
rights, I am not at liberty to consider the merits of the decree for divorce.

Court of Appeals of North Carolina.

Brenda Wilkins CUNNINGHAM, Plaintiff, v. Jon Craig CUNNINGHAM, Defendant.

No. COA04-280.

Decided: July 19, 2005

Charles William Kafer, New Bern, for plaintiff-appellee. Wyrick, Robbins, Yates & Ponton, LLP, by K.
Edward Greene and Donald L. Beci, Raleigh, for defendant-appellant.

Jon Craig Cunningham (“defendant”) appeals orders entered on 11 July 2003 concerning (1) equitable
distribution (the “ED order”);  (2) defendant's military retirement benefits (the “military pension order”);
 and (3) custody, child support, alimony, and attorney fees. We affirm in part, reverse in part, and remand.

Defendant and Brenda Wilkins Cunningham (“plaintiff”) were married 19 May 1990, separated 20 June
2000, and divorced 13 November 2001. Two children were born of the marriage, the first child on 9
July 1992 and the second child on 21 March 1995 (the “children”). In August 1997, the parties moved
to Havelock, North Carolina after defendant, a Lieutenant Colonel and aviator in the United States Marine
Corps, was transferred to Cherry Point Marine Corps Air Station (“Cherry Point”). In early 2000, the
parties jointly decided that defendant would accept a three-year overseas tour of duty in Okinawa
beginning 20 June 2000 and that plaintiff and the children would accompany him. Prior to defendant's
departure, plaintiff changed the plan and told him that she and the children would not accompany him
initially but would join him later. After defendant arrived in Okinawa, plaintiff informed defendant that
neither she nor the children would be joining him and that she wanted a separation and divorce.

The parties never resumed marital relations after 20 June 2000. On 19 September 2000, plaintiff filed a
complaint for divorce from bed and board, postseparation support, alimony, child custody, child support,
and attorney fees. Defendant filed an answer and counterclaimed, seeking, inter alia, equitable
distribution, child support and custody of the minor children. Defendant subsequently shortened his tour
of duty in Okinawa to one year and returned to North Carolina to be near the children.

The Honorable Karen Alexander presided over the fifteen-day trial in Craven County District Court,
which started on 5 March 2002 and concluded on 27 November 2002. The court found defendant's
taxable monthly wages for 2002, as a Lieutenant Colonel continuously on active duty since 13 March
1981, were $6,919.80. His non-taxable monthly allowances were $1,130.47. Therefore, his gross
monthly income totaled $8,040.27, and his monthly income after taxes and withholding was $6,250.49.
In 2002, defendant's income was supplemented with yearly bonuses of up to $9,000.00. Defendant
accrued military retirement benefits (“military pension”) from 11 August 1983 and became eligible to
receive his military pension on 11 August 2003. Plaintiff offered evidence at trial that, based on his pay
scale as of 1 July 2000, defendant would receive a monthly military pension of $3,126.00 and, based on
his life expectancy, would receive a total pension in the amount of $561,494.62. Plaintiff is a registered
nurse and did not work outside the home after the birth of the parties' second child until after the parties'
separation when she commenced employment as a school nurse. During the 2002-2003 academic year,
plaintiff earned $1,169.64 per month.

In the ED order, the trial court concluded, “[t]he large disparity in [the] income between the parties and
the substantial difference between the military retirement distribution warrants an unequal distribution of
the marital property and debts.” The trial court did not value defendant's retirement plan, but found the
following:
Were the defendant to retire on 11 August 2003, his earliest possible retirement date, ․ [p]laintiff's share
under the terms of this order would be 25.22 percent. Therefore, the defendant will receive 74.88
percent or a substantially greater portion of this retirement. The longer he stays in the Marine Corps
after 11 August 2003, the greater will be his share of this retirement.

The trial court further ordered that plaintiff “receive one-half of the marital portion of the defendant's
military retirement” as set out in the military pension order.

The military pension order required defendant to pay plaintiff one-half of the marital portion of each
monthly military pension payment beginning the first date defendant receives his first pension check.
The marital portion of the military pension would be determined by a coverture fraction, the numerator
being 121.03, the number of months the parties were married, and the denominator being defendant's total
number of months of service for pension purposes. The trial court further ordered that “the defendant
shall not take any steps designed to diminish or in any way reduce the amount of disposable retired or
retainer pay that he is entitled to receive by virtue of his military service to the end that the plaintiff's
portion of his retirement is reduced.”

In the order for custody, child support, alimony, and attorney fees, the trial court granted the parties joint
custody of the children. The trial court granted primary custody to plaintiff and secondary custody and
visitation to defendant. Plaintiff's primary custody was conditioned on her and the children's continued
residence in North Carolina unless defendant was transferred to another duty station outside North
Carolina or ceased to reside in North Carolina;  however, plaintiff was not required to reside in North
Carolina after 1 July 2005. The trial court further ordered that plaintiff's friend, Kim Tippett, with whom
defendant had a poor relationship, “shall not be utilized as a babysitter for the children under any
circumstances and the children shall not spend the night with Kim Tippett for any reason.” Defendant
was ordered to pay plaintiff:  (1) $1,160.57 per month in child support beginning 1 January 2003;  (2)
$1,000.00 per month in alimony beginning 1 January 2003 and ending 1 December 2005;  and (3)
$35,000.00 in attorney fees paid at the rate of $500.00 per month from 1 January 2003 through 1
December 2005 with the $17,000.00 balance payable on or before 31 December 2005. From these
orders, defendant appeals.

I. Equitable Distribution

Defendant asserts the trial court failed to value his military pension in the ED order. “Upon
application of a party, the court shall determine what is the marital property and divisible property and
shall provide for an equitable distribution of the marital property and divisible property between the
parties․” N.C. Gen.Stat. § 50-20(a) (2003). The division of property in an equitable distribution “is a
matter within the sound discretion of the trial court.” Gagnon v. Gagnon, 149 N.C.App. 194, 197, 560
S.E.2d 229, 231 (2002). The trial court's division will only be reversed upon a showing that it “could not
have been the result of a reasoned decision.” Lawing v. Lawing, 81 N.C.App. 159, 162, 344 S.E.2d 100,
104 (1986).

Under N.C. Gen.Stat. § 50-20(c) (2003), equitable distribution is a three-step process;  the trial court
must (1) “determine what is marital [and divisible] property”;  (2) “find the net value of the property”;
 and (3) “make an equitable distribution of that property.” Soares v. Soares, 86 N.C.App. 369, 371, 357
S.E.2d 418, 419 (1987) (reversing and remanding where the trial court “made some findings and
conclusions regarding marital property, but it did not place a value on the marital home”). “Marital
property includes all vested and nonvested pension, retirement, and other deferred compensation rights,
and vested and nonvested military pensions eligible under the federal Uniformed Services Former
Spouses' Protection Act.” N.C. Gen.Stat. § 50-20(b)(1) (2003). A trial court must value all marital and
divisible property-collectively termed distributable property-in order to reasonably determine whether the
distribution ordered is equitable. Turner v. Turner, 64 N.C.App. 342, 346, 307 S.E.2d 407, 409 (1983).
Therefore, when no finding is made regarding the value of an item of distributable property, a trial court's
findings are insufficient even if a determination is made with respect to the percentage of a distributable
property's value to which each party is entitled. Byrd v. Owens, 86 N.C.App. 418, 421-22, 358 S.E.2d
102, 105 (1987) (holding the trial court erred by failing to assign a promissory note value using traditional
methods of tracing funds and “simply distribut[ing] it by giving an 80% interest to defendant and 20% to
plaintiff”).

Pursuant to N.C. Gen.Stat. § 50-20.1(b) (2003),

The award of nonvested pension, retirement, or other deferred compensation benefits may be made
payable:

(1) As a lump sum by agreement;

(2) Over a period of time in fixed amounts by agreement;  or

(3) By appropriate domestic relations order as a prorated portion of the benefits made to the designated
recipient at the time the party against whom the award is made actually begins to receive the benefits.

Regardless of the method of payment under N.C. Gen.Stat. § 50-20.1(b), the amount of the award shall
be determined by applying a coverture fraction-“the proportion of time the marriage existed (up to the
date of separation of the parties), simultaneously with the employment which earned the vested and
nonvested pension, retirement, or deferred compensation benefit, to the total amount of time of
employment”-to the value of “the vested and nonvested accrued benefit․” N.C. Gen.Stat. § 50-20.1(d)
(2003).

A defined benefit retirement plan, as opposed to a defined contribution retirement plan, “is determined
without reference to contributions and is based on factors such as years of service and compensation
received.” Seifert v. Seifert, 82 N.C.App. 329, 333, 346 S.E.2d 504, 506 (1986). For the purpose of
equitable distribution, a defined benefit plan is valued as follows:

First, the trial court must calculate the amount of monthly pension payment the employee, assuming he
retired on the date of separation, will be entitled to receive at the later of the earliest retirement age or the
date of separation. This calculation must be made as of the date of separation and “shall not include
contributions, years of service or compensation which may accrue after the date of separation.” [N.C.
Gen.Stat. § 50-20.1(d)]․ Second, the trial court[,] [using an acceptable mortality table] must determine
the employee-spouse's life expectancy as of the date of separation and use this figure to ascertain the
probable number of months the employee-spouse will receive benefits under the plan. Third, the trial
court, using an acceptable discount rate, must determine the then-present value of the pension as of the
later of the date of separation or the earliest retirement date. Fourth, the trial court must discount the
then-present value to the value as of the date of separation. In other words, determine the value as of the
date of separation of the sum to be paid at the later of the date of separation or the earliest retirement date․
Finally, the trial court must reduce the present value to account for contingencies such as involuntary or
voluntary employee-spouse termination and insolvency of the pension plan. This calculation cannot be
made with reference to any table or chart and rests within the sound discretion of the trial court.

Bishop v. Bishop, 113 N.C.App. 725, 731, 440 S.E.2d 591, 595-96 (1994).

In the instant case, defendant's military pension is categorized as a defined benefit retirement plan. 10
U.S.C. § 6323 (2005) (providing retirement benefit eligibility to Marine officers who have served twenty
years);  Seifert, 82 N.C.App. at 333, 346 S.E.2d at 506 (stating “[t]he military retirement system is
noncontributory ․”). The trial court properly determined that the coverture fraction would entitle plaintiff
to 25.22 percent of defendant's military pension if defendant retired at his earliest retirement date, 11 July
2003. In addition, the trial court properly attempted, pursuant to N.C. Gen.Stat. § 50-20.1(b)(3), to
award plaintiff a prorated portion of defendant's military pension, one-half of the marital portion of each
of defendant's pension payments, to be paid by defendant at the time he began receiving benefits.
However, the trial court failed to determine that defendant's military pension was a defined benefit
retirement plan and failed to value it. We further note the record contained evidence regarding the value
of defendant's military pension as of the date of separation. Cf. Albritton v. Albritton, 109 N.C.App. 36,
426 S.E.2d 80 (1993) (holding the trial court's error in not valuing a retirement account was not
prejudicial because plaintiff failed to provide evidence regarding the date of separation value).
Accordingly, we reverse and remand the trial court's ED order and military pension order for a new
equitable distribution order including valuation of defendant's military pension using the method
established in Bishop.

Defendant also asserts the trial court erred in the ED order by ordering that defendant “shall not take any
steps designed to diminish or in any way reduce the amount of disposable retired or retainer pay that he is
entitled to receive by virtue of his military service to the end that the plaintiff's portion of his retirement is
reduced.” Specifically, defendant argues the order forecloses his right to forego military pension
payments in favor of disability payments if he becomes so eligible. It is well established that “disability
payments cannot be classified as marital property subject to distribution under state equitable distribution
laws.” Bishop, 113 N.C.App. at 733, 440 S.E.2d at 597. In Halstead v. Halstead, 164 N.C.App. 543,
550, 596 S.E.2d 353, 358 (2004), this Court held that the trial court's “order requiring [the defendant] to
pay his former wife any amount withheld from her share of [the defendant's] military retirement due to
future reductions caused by an act or omission, including future waivers of retirement pay, contravenes
[federal law]” by distributing disability payments. In the instant case, the trial court's order could
encompass reductions in defendant's military pension payments due to his electing to receive disability
payments if he becomes eligible. Accordingly, upon remand, the trial court must revise the ED order so
as to avoid foreclosing defendant's right to forego pension payments in favor of disability payments if he
becomes so eligible.

II. Child Custody

In child custody determinations, the welfare of the child is paramount, and “the court must consider all
of the facts of the case and decide the issue [of custody] in accordance with the best interests of the child.”
Dean v. Dean, 32 N.C.App. 482, 484-85, 232 S.E.2d 470, 472 (1977). Moreover, the trial court must
resolve all issues raised by relevant evidence that directly concern the fitness of a party to have care,
custody, and control of a child, In re Kowalzek, 37 N.C.App. 364, 370, 246 S.E.2d 45, 48 (1978), or that
directly concern the child's best interests. Lamond v. Mahoney, 159 N.C.App. 400, 407, 583 S.E.2d 656,
661 (2003). While a trial court's decisions in child custody matters will not be overturned absent a clear
abuse of discretion, see Surles v. Surles, 113 N.C.App. 32, 36-37, 437 S.E.2d 661, 663 (1993), a custody
order is, nonetheless, “deemed fatally defective when it fails to treat an important question raised by the
evidence.” Dixon v. Dixon, 67 N.C.App. 73, 77, 312 S.E.2d 669, 672 (1984).

Defendant asserts the trial court erred by failing to make findings regarding whether plaintiff, in order
to deprive defendant of contact with the children, willfully misled defendant during their discussions
concerning her intention to later join defendant with the children in Okinawa. Evidence of a parent's
ability or inability to cooperate with the other parent to promote their child's welfare is relevant in a
custody determination and material to determining the best interests of the child. Cf. Phelps v. Phelps,
337 N.C. 344, 446 S.E.2d 17 (1994) (quoting as relevant to a custody determination a finding of fact
regarding one parent's inability to cooperate in a reasonable fashion with the other parent to promote their
child's best interests);  Woncik v. Woncik, 82 N.C.App. 244, 249, 346 S.E.2d 277, 280 (1986) (holding
“interference with visitation of the noncustodial parent ․ [that negatively] impact[s] ․ the welfare of the
child can constitute a substantial change of circumstances sufficient to warrant a change of custody”).

The trial court's order reflects that it fully considered and made findings to address each parent's ability to
cooperate for the benefit of the children and both parents' marital misconduct. As defendant
acknowledges, the trial court did not ignore his evidence regarding Okinawa, but rather found:

59. The defendant was to have permanent change of duty station orders in June, 2000. Discussion was
had between the parties as to the location for these orders and a joint decision was made that the
defendant would take an accompanied three-year overseas tour in Okinawa beginning in June, 2000.
However, the parties had arguments and the turmoil between the parties continued to exist. After the
defendant received orders and the transfer was to happen, the plaintiff advised him that she was not going
to go with him initially. This was not expected by the defendant. He testified that he felt “set up”.
Evidence was presented that the plaintiff went to divorce and separation classes on base with her friend,
Kim Tippett, as a disguise prior to the defendant's overseas tour. She stated that she would consider
going with him at a later time. Subsequently, she advised him that she was not coming to Okinawa.

This finding of fact fully describes the circumstances surrounding defendant's tour in Okinawa and,
indeed, directly parallels the facts identified in defendant's brief on appeal. Defendant's objection
appears to be solely that the trial court did not brand this conduct as deceitful and conclude that it so
adversely affected plaintiff's ability to be a good parent that defendant should be given primary custody.

It is apparent from the trial court's order that the trial court did not disregard or fail to resolve the issue of
plaintiff's ability to cooperate with defendant regarding the children, but rather concluded that both
parents were badly flawed in this area. The court specifically found:
84. The parties have been excellent parents for the two minor children, but the parties have been poor
spouses to each other. The way the parties treat each other is a concern․

85․ The problems these parties have with each other maybe [sic] affecting the children on a psychological
standpoint since evidence exists of episodes of anxiety and repeated incidences where the younger child
soils his pants by having bowel movements.

86․ Both parties are well grounded and are the best ․ parent anyone could have but for the behavior
exhibited by each party around the other․ Each party has acted poorly with the other and each has faults
with respect to how each has treated the other.

In short, the trial court specifically addressed the ability of the parents to cooperate with each other and
found that both parents were severely lacking. See In re Stancil, 10 N.C.App. 545, 549, 179 S.E.2d 844,
847 (1971) (noting that the “trial judge is not required to find all the facts shown by the evidence․ It is
sufficient if enough material facts are found to support the judgment”). The trial court chose to find that
neither party was fully the villain or the victim.

Defendant further asserts the trial court erred by placing insufficient restrictions on the children's
contact with Kim Tippett. The trial court's findings of fact are conclusive on appeal if supported by
competent evidence. Raynor v. Odom, 124 N.C.App. 724, 729, 478 S.E.2d 655, 658 (1996). The trial
court's conclusions of law and orders will not be reversed if supported by the findings of fact. Witherow
v. Witherow, 99 N.C.App. 61, 63, 392 S.E.2d 627, 629 (1990). Based on competent evidence, the trial
court found the following facts:

Ms. Tippet does not like the defendant. She has insulted him. The defendant does not like Ms. Tippet.
There was evidence that Ms. Tippet interfered with the defendant spending quality time with the children
at such times he had an opportunity to do so. This type of interference shall not be allowed by the
plaintiff in the future.

These findings of fact support the trial court's order that “Kim Tippet shall not be utilized as a babysitter
for the children under any circumstances and the children shall not spend the night with Kim Tippet for
any reason.” However, as the trial court's findings and order indicate, whatever relationship Kim Tippett
has with the children, it is and must continue to be subordinate to defendant's relationship with the
children. The order of the trial court has given the father recourse against the mother should she fail to
prevent interference by Kim Tippett in that relationship, and we do not read the trial court's prohibition
against babysitting or spending the night as an exclusive list of those situations through which Kim
Tippett has interfered in the father and children's relationship. The father, accordingly, may bring to the
attention of the trial court, for purposes of holding the mother responsible, any circumstances which
constitute the mother's permitting interference by Kim Tippett with the father's relationship with the
children. We find this recourse, in conjunction with the listed restrictions, to be sufficient.

Defendant additionally contends the trial court did not have competent evidence to support its finding
of fact that the best interests of the children would not require plaintiff and the children to remain in North
Carolina after 1 July 2005. The trial court found as fact that both parties are suitable persons to have
custody of the children and that the best interests of the children would be served by the parties having
joint custody, with plaintiff having primary custody. Furthermore, the trial court found the following:

The best interest and general welfare of the children will be promoted by the plaintiff staying in the State
of North Carolina with the children as long as the defendant is stationed and continues to reside in the
State of North Carolina. However, if he is not stationed in North Carolina or ceases to reside in North
Carolina, the best interests of the children will not require that the plaintiff continue to reside here.
Further, the best interests and general welfare of the children will not require that the plaintiff and the
children reside in North Carolina after 1 July 2005.

At the hearing, defendant testified that he would be stationed at Cherry Point until his intended retirement
in June 2005. Defendant also testified he intended to live near the children no matter where the plaintiff
and the children reside. Accordingly, the trial court had competent evidence that a move by plaintiff and
the children after 1 July 2005 would not compromise the children's ability to have contact with defendant
and did not abuse its discretion by allowing plaintiff and the children to move from North Carolina after
that date.
III. Child Support

Defendant asserts the trial court erred under the child support guidelines by computing child support using
worksheet A. Specifically, based on the calendars for the children's elementary school, defendant argues
the children will live with him for at least 123 nights annually;  therefore, the trial court was required
under the guidelines to use worksheet B.

In support of his argument, defendant requests that this Court take judicial notice of the children's
elementary school calendars for the academic years 2003-2004 and 2004-2005, which defendant obtained
from a county website. We note, however, the defendant could have entered the 2003-2004 calendar
into evidence because it was adopted 21 November 2002, six days before the final date of the hearing.
Under N.C. R.App. P. 9 (2005), this Court's review is limited to the record on appeal and the verbatim
transcript of the proceedings, and judicial notice is not a substitute for the proper compilation of evidence
that could have been submitted to the trial court during the hearing and included in the record on appeal.

The 2004-2005 school calendar reflects that it was not adopted until 20 November 2003 and was
therefore not in existence at the time of the hearing. Rather than requesting this Court to take judicial
notice of evidence that the trial court could not have considered, defendant's proper course of action with
respect to the 2004-2005 calendar-or any subsequent school calendar-would be to file a motion in the
cause with the trial court to modify or vacate the child support order pursuant to N.C. Gen.Stat. § 50-
13.7(a) (2003). Accordingly, we decline to take judicial notice of the 2003-2004 and 2004-2005 school
calendars.

IV. Alimony

In making an award of alimony, the trial court must consider “all relevant factors” necessary to
determine that the award is equitable. N.C. Gen.Stat. § 50-16.3A(a) (2003). “[T]he court shall make a
specific finding of fact on each of the factors in [N.C. Gen.Stat. § 50-16.3A(b) (2003)] if evidence is
offered on that factor.” N.C. Gen.Stat. § 50-16.3A(c) (2003). Pursuant to N.C. Gen.Stat. § 50-
16.3A(b)(1), the trial court must consider “the marital misconduct of either of the spouses.” Marital
misconduct includes the act of abandoning the other spouse. N.C. Gen.Stat. § 50-16.1A(3) (2003). “An
abandonment occurs when one spouse brings the cohabitation with the other spouse to an end without
justification, without the consent of the other spouse and without intent of renewing it. The spouse
alleging abandonment must prove the absence of justification for the abandonment.” Corbett v. Corbett,
67 N.C.App. 754, 755, 313 S.E.2d 888, 889 (1984) (emphasis omitted).

Defendant asserts the trial court erred by failing to make findings regarding whether plaintiff
abandoned defendant by representing she would join him in Okinawa, then informing him, after he had
moved, she would not join him and intended to divorce him. Defendant alleged and offered evidence
that plaintiff intentionally misled him into accepting a post in Okinawa with promises to accompany him
while actually intending to end their marital relationship. In its order, the trial court not only recited the
events surrounding Okinawa, but also made findings regarding marital misconduct of defendant and other
marital misconduct of plaintiff. Not surprisingly, the trial court then found that “[t]he marriage between
the parties was dysfunctional” and that “[b]oth parties were at fault in the breakup of the marriage.” The
trial court then specifically found-while addressing the alimony issue-that “[d]espite the marital
misconduct of the plaintiff, she should be given credit for her career sacrifices that no doubt helped the
defendant succeed in his military goals.” The trial court thus fully addressed the question of plaintiff's
misconduct as it relates to alimony. See Friend-Novorska v. Novorska, 143 N.C.App. 387, 395, 545
S.E.2d 788, 794 (2001) (holding “the findings of fact required to support ․ an alimony award are sufficient
if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show
the trial court properly applied the law in the case”).

Defendant also asserts the trial court made insufficient findings regarding the duration of the alimony.
“[A] trial court's failure to make any findings regarding the reasons for the amount, duration, and the
manner of payment of alimony violates N.C. Gen.Stat. § 50-16.3(A)(c).” Fitzgerald v. Fitzgerald, 161
N.C.App. 414, 421, 588 S.E.2d 517, 522-23 (2003). While the trial court made sufficient findings
regarding the reasons for the amount and manner of payment, the trial court failed to make findings
concerning the reasons for the duration of the alimony payments. Accordingly, we remand the alimony
order for further findings of fact concerning the duration of the alimony award.
 Defendant next asserts the trial court's reduction in his expenses was arbitrary, and the amount of
alimony when combined with his expenses, including child support and other payments, exceeds that
which he is able to pay. Since it is likely to recur upon remand, we deem it necessary to address this
issue. “The determination of what constitutes the reasonable needs and expenses of a party in an alimony
action is within the discretion of the trial judge, and he is not required to accept at face value the assertion
of living expenses offered by the litigants themselves.” Whedon v. Whedon, 58 N.C.App. 524, 529, 294
S.E.2d 29, 32 (1982). “Implicit in this is the idea that the trial judge may resort to his own common sense
and every-day experiences in calculating the reasonable needs and expenses of the parties.” Bookholt v.
Bookholt, 136 N.C.App. 247, 250, 523 S.E.2d 729, 732 (1999).

The trial court found defendant's net income after taxes and withholding was $6,250.49 per month. The
trial court's custody, child support, alimony, and attorney fees order required defendant to pay per month
$1,160.57 in child support, $1,000.00 in alimony, $500.00 in attorney fees, and $88.78 in medical
insurance for the children. After these deductions, defendant would have $3,501.14 per month for living
expenses. Defendant submitted an affidavit stating that his monthly living expenses were $4,648.00.

The trial court found defendant could reasonably lower his monthly living expenses by almost $1,500.00,
to $3,156.00, by taking the following steps:  (1) reducing his $134.00 telephone bill to $100;  (2)
cancelling his $55.00 cable television subscription;  (3) reducing his $650.00 food expense to $400.00;
 (4) reducing his $100.00 clothing expense to $50.00;  (5) stopping his $60.00 allowance to the children
since he would be paying child support;  (6) reducing his $207.00 gift and special occasion expense to
$104.00;  (7) reducing his vacation and recreation expense from $450.00 to $100.00;  and (8) reducing his
$60.00 grooming and hygiene expense to $20.00. Additionally, the trial court found that defendant's
$150.00 furniture payment would soon end and his $400.00 credit card payments were a duplication of
other expenses.

After reviewing the record on appeal, we hold the trial court did not abuse its discretion by making the
above reductions to defendant's monthly expenses. Accordingly, defendant will have sufficient funds to
meet his monthly living expenses and obligations under the trial court's current order and will also have
approximately $345.14 per month in unutilized funds.

Defendant also argues the trial court's finding that his income would be supplemented by bonuses was
not supported by the evidence. He states the only evidence concerning his bonuses was from him and
that he would receive no more bonuses. However, as established above, even in the absence of bonuses,
defendant would have sufficient funds for his monthly expenses and obligations under the current order.
Therefore, to the extent the finding was in error, we can discern no prejudice to defendant.

V. Attorney Fees

Defendant asserts the trial court erred by failing to make valid findings that the attorney fees awarded
were not attributable to work performed on the equitable distribution portion of the case. Specifically,
defendant argues one cannot discern the portion of the case to which each charge applies nor the nature of
the service provided from the fee affidavits submitted by plaintiff's attorney;  therefore, the trial court had
insufficient evidence upon which to base its award of attorney fees.

Pursuant to N.C. Gen.Stat. § 50-13.6 (2003), the trial court may award attorney fees in an action for
child custody and support if the party seeking the award was an interested party acting in good faith when
she instituted the action and has “insufficient means to defray the expense of the suit.” Cox v. Cox, 133
N.C.App. 221, 228, 515 S.E.2d 61, 66 (1999). Under N.C. Gen.Stat. 50-16.4 (2003), the trial court may
award attorney fees in an action for alimony or postseparation support “to a party who has shown that she
is entitled to the relief demanded, is a dependent spouse, and lacks sufficient means upon which to live
during the prosecution of the suit and to defray her necessary legal expenses.” Perkins v. Perkins, 85
N.C.App. 660, 668, 355 S.E.2d 848, 853 (1987). If each of the statute's requirements are met, this Court
reviews the amount of attorney fees awarded under an abuse of discretion standard. Id.;  Atwell v.
Atwell, 74 N.C.App. 231, 238, 328 S.E.2d 47, 51 (1985).

To support the reasonableness of an award of attorney fees, the trial court must make “findings
regarding the nature and scope of the legal services rendered, the skill and time required, the attorney's
hourly rate, and its reasonableness in comparison with that of other lawyers.” Cobb v. Cobb, 79
N.C.App. 592, 595, 339 S.E.2d 825, 828 (1986);  Perkins, 85 N.C.App. at 668, 355 S.E.2d at 853.
“Moreover, attorney fees are not recoverable in an action for equitable distribution.” Holder v. Holder,
87 N.C.App. 578, 584, 361 S.E.2d 891, 894 (1987). Therefore, in a combined action, the trial court's
findings of fact must reflect that the attorney fees awarded are attributable only to the alimony or child
custody and support claims. Id.

Pertinent to the issue of attorney fees and based on competent evidence, the trial court found plaintiff was
the dependent spouse, defendant was the supporting spouse, and plaintiff was entitled to alimony. The
trial court also made the following pertinent findings:

99. The plaintiff is an interested party acting in good faith who has insufficient means to defray the
expenses of this action․ She is not entitled to receive attorneys's fees for the portions of this case relating
to equitable distribution and divorce. However, the time expended by plaintiff's attorney regarding those
issues has not been substantial

104. The trial of this case took fifteen days. Although a portion of the trial related to the issue of
equitable distribution, the vast majority of the trial related to the issue of custody․

105. The plaintiff['s] ․ attorney has been licensed to practice since 1969[,] ․ limits his practice to family
law[,] ․ is board certified in family law[,] ․ [and] charges $300.00 per hour[,] ․ which [b]ased upon ․ his
experience ․ is reasonable.

107. The trial of this case has resulted in a substantial increase in attorney's fees and time expended.
The trial of this case, the preparation for trial, the staff time, [and] the attorney's time have resulted in
244.8 hours of service. That time and services have a reasonable value of $64,830.00․ Of this
$64,830.00, at least 75% of that time and that fee have related to issues pertaining to custody, child
support, and alimony. Of these fees, the defendant should pay the sum of $35,000.00.

Therefore, the trial court's findings properly (1) met the statutory requirements necessary for an award of
attorney fees;  (2) addressed the services, skill, time, and rate of plaintiff's counsel;  and (3) apportioned
the fees to exclude attorney fees for equitable distribution.

We note defendant does not argue on appeal that the trial court had insufficient evidence for its findings
that plaintiff was acting in good faith and had insufficient means to defray the costs of the action.
Moreover, the trial court had sufficient evidence upon which to base its apportionment of the attorney fees
between equitable distribution and the other relevant issues. Although the fee affidavits did not label
every charge as being attributable to a particular issue, our review of the affidavits reveals plaintiff's
counsel adequately described each line item service. Therefore, the trial court could reasonably compare
the time spent on each issue at trial and the evidence presented with the line item services on the fee
affidavits. In this way, the trial court could rationally determine that approximately seventy-five percent
of plaintiff's attorney fees, roughly $48,622.50, were attributable to issues pertaining to alimony or child
custody and support. Accordingly, we can discern no abuse of discretion by the trial court in ordering
defendant to pay $35,000.00 in attorney fees.

Defendant also assigns error to the trial court's finding that, after paying “$500.00 per month for each
month beginning 1 January 2003 through 1 December 2005[,]” defendant has the ability to pay the
remaining portion of the $35,000.00 in attorney fees by making a “lump sum payment of $17,000.00 on
or before 31 December 2005.” Because a change in the amount of assets awarded defendant through
equitable distribution might impact his ability to make such a lump sum payment, we remand the issue of
defendant's ability to make a lump sum payment of $17,000.00 in attorney fees for further findings of fact
in light of the new equitable distribution order required by our above holding.

VI. Conclusion

We have carefully considered defendant's remaining arguments and find them to be without merit. For
the foregoing reasons, we (1) reverse and remand the trial court's ED and military pension orders for
valuation of defendant's military pension and a new equitable distribution order as well as a revision of
the ED order to avoid language foreclosing defendant's right to forego pension payments in favor of
disability payments if he becomes eligible;  (2) affirm the trial court's child custody order;  (3) affirm the
child support order;  (4) reverse and remand the trial court's alimony order for findings explaining the
reasons for the duration of the alimony award;  and (5) affirm the trial court's award of attorney fees but
remand the issue of defendant's ability to pay a lump sum of $17,000.00 in light of the new equitable
distribution order. “On remand, the trial court shall rely upon the existing record, but may in its sole
discretion receive such further evidence and further argument from the parties as it deems necessary and
appropriate to comply with the instant opinion.” Heath v. Heath, 132 N.C.App. 36, 38, 509 S.E.2d 804,
805 (1999).

Affirmed in part, reversed in part, and remanded.

CALABRIA, Judge.

Chief Judge MARTIN and Judge GEER concur.

Pyne v. Payne

40 N.W.2d 682 (1950)

152 Neb. 242

PYNE v. PAYNE et al.

No. 32707.

Supreme Court of Nebraska.

January 19, 1950.

Paine & Paine, Grand Island, for appellants.

Herbert F. Mayer, Grand Island, Arthur C. Mayer, Grand Island, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and
BOSLAUGH, JJ.

*683 YEAGER, Justice.

This is an action which was instituted in the district court for Hall County, Nebraska, by Eliza Katheryn
Pyne, plaintiff, against Gladys Payne, John J. Payne, Grand Island Trust Company, a corporation, and
certain other parties, defendants, the purpose of which was to have construed a provision of the will of
John R. Thompson, deceased. The naming herein of the other parties is not essential to a determination of
the matters involved.

Eliza Katheryn Pyne is the daughter of the said John R. Thompson, deceased. Gladys Payne is the
daughter of Eliza Katheryn Pyne and John H. Payne is the husband of Gladys Payne. The Grand Island
Trust Company, a corporation, is the successor trustee to the trustees named in the will. Gladys Payne is
one of the named successors to the estate so placed in trust on the death of Eliza Katheryn Pyne.

The provision of the will which plaintiff sought to have interpreted placed in trust certain real estate and
provided for the payment of income therefrom, in excess of what became necessary to be expended for
taxes and repairs, to plaintiff during her natural life. Payments were to be made to her as her necessities
should require. On her death it was required that the trustee should convey the trust property to plaintiff's
children. There was provision made for conveyance in case no children of plaintiff survived her which is
of no importance here. The provision conditionally empowered the trustee to dispose of the real estate and
expend the res of the trust as follows: "* * *; and in the event of sickness or other casualty occurring to
either Eliza Katherine Carr or her children requiring for her or their proper care a greater expenditure than
shall be derived from the rents and profits of said property, then, and in that event my said exeuctors
(executors) shall be the sole judges; I authorize them or the survivor of them to sell first, the undivided
one-half of Lot Three above descrived (described) to raise money to be expended by them for the purpose
of relieving the necessities of the said Eliza Katherine Carr or any of her said children, to be paid under
the same restrictions as hereinbefore provided." Eliza Katherine Carr, named in the will, is the same
person as the plaintiff herein.

It is of this quoted portion of the provision that the plaintiff has sought construction. By petition filed in
the district court she contended for an interpretation which would empower the successor trustee to pay to
her such amount of the res as might be necessary for her care and support without any other restriction or
limitation.

None of the parties appeared in defense of the action except the successor trustee, Gladys Payne, and John
H. Payne. The successor trustee by answer sought no particular interpretation and instruction, but took a
neutral position. Gladys Payne and John H. Payne by answer asserted in substance that the words
"sickness or other casualty" contained in the quoted portion of the will constituted a limitation beyond a
mere necessity for general support and that judgment of the successor trustee conferred by the will must
yield to a proper interpretation of this term, and unless "sickness" or "other casualty" occurred the
successor trustee was not empowered to expend and of the res of the trust for the care of the plaintiff.

Following a pre-trial conference and a stipulation of facts entered into between the plaintiff and the
defendants Gladys Payne and John H. Payne, a trial was had and the court decreed as follows:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the phrase `in
the event of sickness or other casualty occuring (occurring) to either Eliza Katherine Carr or her children',
contained in Paragraph Sixth (6th) of the Last Will and Testament of John R. Thompson, deceased, shall
be construed to include the authorization to said trustee to encroach upon the principal of said trust for the
purposes of providing support to plaintiff or any of her children, said trustee to be the sole judge of the
necessity and amount thereof."

The successor trustee apparently chose to accept the interpretation made by the decree since it did not
appeal. The defendants Gladys Payne and John H. Payne have *684 appealed. They will be referred to
hereinafter as appellants.

The appeal comes here on a case stated rather than on a conventional bill of exceptions. The case stated
however presents no controverted state of facts.

By their appeal the appellants present solely and alone the question of the meaning to be attached to the
phrase "in the event of sickness or other casualty" in its relation to the rest of the provision and to the
entire will. They contend that the word "casualty" means accident or other similar unforeseen misfortune
and that the "necessities" within the meaning of the quoted provision of the will must depend upon the
occurrence of accident or unforeseen misfortune.

It reasonably appears that the district court did not place any definite interpretation upon the word
"casualty." The effect of the decree is to say that "casualty" in the sense employed is sufficient to include
ordinary necessity for support if in the judgment of the successor trustee such necessity exists. The further
effect of the decree is to say that the successor trustee is the sole judge of whether or not necessity exists
and that its judgment in this respect is not a matter which is a subject for judicial examination.

It is true that in the construction of a will the generally accepted literal, natural, and grammatical meaning
will be attached to the words used. Brandeis v. Brandeis, 150 Neb. 222, 34 N.W.2d 159. We know,
however, of no rule of law the effect of which is to bar a judicial examination of a discretionary power
granted under a will or the discretion exercised or to be exercised thereunder.

We think that the district court was in error in concluding that ordinary necessity under the terms of the
provision of the will did or could amount to "casualty." As pointed out the will contemplated that ordinary
necessity should be taken care of out of income and not the res of the trust. It was clearly extraordinary
necessity or necessity flowing from "casualty" which authorized the disposition of the res of the trust.
From the language employed it is clear that in the mind of the testator the casualty was to be regarded as
the causative agent and that only attendant necessity permitted action. In other words casualty was
contemplated as a cause and necessity an effect.

This must be true unless it can be said under the terms of the will that the testator intended a departure
from the generally accepted meaning of the term "casualty."

"Casualty" has been variously defined. In Webster's New International Dictionary, 2d edition,
Unabridged, 1943, it is defined as "Chance; accident; contingency; also, that which comes without design
or without being foreseen; an accident."

In Anthony & Co. v. Karbach, 64 Neb. 509, 90 N.W. 243, 244, 97 Am.S.R. 662, the term was defined as
follows: "The word `casualty' means accident; that which comes by chance, or without design, or without
being a forseen (foreseen) contingency."

There are many other definitions containing a somewhat different phrasing, none containing a precise
bound, but all arriving at a single general conclusion that "casualty" does not embrace that which may be
anticipated, foreseen, or expected in the ordinary course of events. Instead it embraces only those things
which are a departure from what may be regarded as foreseen or foreseeable contingencies.

Nothing has been found in the will to indicate that the testator intended to use the word in any sense other
than the ordinary one. In truth the context appears to indicate that he intended to use it in its ordinary
sense.

If he had intended that the trustee could use the res of the trust for ordinary necessities in the light of
economic changes, there could have been no reasonable purpose in causing use to depend upon "sickness
or other casualty."

It is indicated by the will that sickness was intended to be considered a casualty. What else was intended
by the testator to be so regarded does not appear and while the doctrine of ejusdem generis, that is, that
where particuar words are followed by general, the general words are *685 restricted in meaning to
objects of the like kind, does not aid in determining his positive intention, it does aid in arriving at a
conclusion that ordinary necessity was not intended. In re Estate of Grainger, 151 Neb. 555, 38 N.W.2d
435.

We conclude therefore that the district court erred in decreeing that the phrase "in the event of sickness or
other casualty occurring to either Eliza Katherine Carr or her children" contained in the will in question
authorized the successor trustee to encroach upon the principal of the trust for the purpose of providing
without restriction or limitation for support of plaintiff or her children.

The decree of the district court is reversed.

Reversed.

YAP vs COURT OF APPEALS

G.R. No. L-40003, Oct. 28, 1986

Facts:
1.) Maning Yap and Talina Bianong(petitioner) were married on 1939 at Bara-as Plantation,
Malabang, Lanao del Sur, in accordance with the Muslim rites and practices prescribed by the
Islam religion professed by both of them. Out of marriage, four children were born; two of them
died in infancy during the Japanese occupation, while the two others are petitioners Shirley Yap
and Jaime Yap.
2.) Maning Yap married Nancy J. Yap on December 11, 1948 in a civil ceremony performed by
District Judge Juan Sarenas of the Court of First Instance of Cotabato. Nancy Yap entered into
the marriage in the belief that Maning Yap was not a married man. They had four children,
namely respondents Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap.
3.) On February 21, 1964, Maning Yap died in Piagapo, Lanao del Sur, in the crash of an
airplane of the Philippine Air Lines, which left personal and real properties all located at
Malabang, Lanao del Sur, with an approximate value of P100,000.00.
4.) On March 3, 1964, Talina Bianong Vda. de Yap filed Special Proceeding No. 1334 (Intestate
Estate of Maning Yap) before the Court of First Instance of Lanao del Sur, seeking the issuance
of letters of administration for the estate of Maning Yap which was opposed by Nancy J. Yap
and her minor children on the ground that she is the legitimate widow of Maning Yap and that
Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap, all minors, are their legitimate
children.
5.) The lower court rendered decision declaring Talina Bianong and her children as the legal
heirs of Maning Yap.
6.) Upon appeal by Nancy Yap and her children, the appellate court reversed and set aside the
decision.
Issue:
Whether or not Nancy Yap can inherit the share of Maning Yap’s personal and real properties.

Ruling:

No, because the second marriage of Maning Yap (deceased) to Nancy Yap (respondent) was
illegal and void pursuant to Act 3613 of the Philippine Legislature, the Marriage Law which was
in force when the two marriages were celebrated to wit:

SEC. 29. Illegal Marriages. — Any marriage subsequently contracted by any

person during the lifetime of the first spouse of such person with any person other
than such first spouse shall be illegal and void from its performance, unless;

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of
the second marriage without the spouse present having news of the absentee
being alive, or the absentee being generally considered as dead and believed to
be so by the spouse present at the time of contracting such subsequent marriage,
the marriage so contracted being valid in either case until declared null and void
by a competent court.

Nancy Yap, the second wife cannot inherit from Maning Yap because their marriage was void
ab initio. However, Nancy Yap's children by Maning Yap have the status of natural children by
legal fiction and are considered compulsory heirs of the late Maning Yap.

United States Supreme Court

SY JOC LIENG v. SY QUIA, (1913)
No. 177
Argued: Decided: April 14, 1913
Facts:

1.) Sy Quia was born at Am Thau, China, in 1822, and went to the Philippines at the age of
twelve. At first he was located in Manila, but at some time before 1852 went to Vigan and
entered the service of a merchant at an annual salary of 200 pesos.

2.) The next year he married Petronila, the banns being regularly published and the marriage
publicly solemnized according to the rites of the church, as a preliminary to which he affirmed
under oath, and the civil and ecclesiastical authorities certified after inquiry, that he was then
unmarried. They lived in a manner becoming the marital state and were universally recognized
as husband band and wife. Three sons and two daughters were born of the marriage.

3.) Sy Quia became a merchant and together with his wife, they accumulated real and personal
property amounting at the time of his death to upwards of 600,000 pesos.

4.) There was testimony, taken by way of depositions in China, tending to show that Sy Quia
returned from the Philippines to Am Thau in 1847, when he was twenty-five years old; that
during that year he married Yap Puan Niu, the marriage being properly arranged and
celebrated; that he remained at Am Thau three or four years, during which two sons were born
of this marriage; that he then returned to the Philippines and Yap Puan Niu continued to
reside at Am Thau, dying there in 1891.

Issue:

Whether or not Sy Quia and Yap Puan Niu are legally married and that the marriage between
Sy Quia and Petronila is invalid.

Ruling:

In these circumstances every presumption was in favor of the validity and good faith of the
Philippine marriage, and sound reason required that it be not impugned and discredited through
the alleged prior marriage save upon proof so clear, strong, and unequivocal as to produce a
moral conviction of the existence of that impediment. the evidence as not producing a moral
conviction of the existence of that marriage, but as leaving the issue in serious doubt. The
decree is accordingly affirmed.

YAO KEE VS. SY GONZALES 167 SCRA 736

Facts:
Sy Kiat, a chines national died in Caloocan City, leaving behind his real and personal
properties in the Philippines worth P 300,000 more or less. Aida Sy-Gonzales, et. al. filed a
petition for the grant of letters of administration claiming among other things that they are
children of the deceased with Asuncion Gillego, a Filipina. The petition was opposed by Yao kee
who alleged that she is the lawful wife of the deceased whom he married in China and that one
of her children, Sze Sook Wah, should be the administrator of the deceased. The CFI decided in
favor of Yao Kee’s petition but was modified and set aside by the court of appeals.
Issue:
Whether or not Sy Kiat’s marriage to Yao Kee in accordance with Chinese Law and
Custom conclusive.

Held:
The Supreme Court ruled that evidence may prove the fact if marriage between Sy
Kiat and Yao Kee is valid, but it is not sufficient to establish the validity of said marriage in
accordance with Chinese law and custom. A custom must be proved as a fact according to the
rules of evidence and that a local custom as a source of right cannot be considered by a court of
justice unless such custom is properly established by competent evidence. In the case at bar,
petitioners did not present any competent evidence relative to the law of China on marriage. In
the absence of proof of the Chinese law on marriage, it should be presumed that it is the same
as that of the Philippines.
The Supreme Court affirmed (all of them were acknowledged as natural children,
hence given equal rights) the decision of the Court of Appelas.