I.

VOIDABLE MARRIAGES

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-10-SC March 4, 2003

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES

AND ANNULMENT OF VOIDABLE MARRIAGES

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court
submitting for this Court's consideration and approval the Proposed Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages, the Court Resolved to APPROVE
the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of
general circulation not later than March 7, 2003

March 4, 2003

Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna
Ynares-Santiago, on leave
Corona, on official leave

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT

OF VOIDABLE MARRIAGES

Section 1. Scope - This Rule shall govern petitions for declaration of absolute nullity of void
marriages and annulment of voidable marriages under the Family Code of te Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition for declaration of absolute nullity of void marriages.

(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or the wife. (n)

(b) Where to file. - The petition shal be filed in the Family Court.

(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute
nullity of void marriage shall not prescribe.

(d) What to allege. - A petition under Article 36 of Family Code shall specially allege te
complete facts showing the either or both parties were psychologically incapacitated from
 complying with the essential marital obligations of marriages at the time of the celebration of
marriage even if such incapacity becomes manifest only after its celebration.

The complete facts should allege the physical manifestations, if any, as are indicative of
psychological incapacity at the time of the celebration of the marriage but expert opinion need not be
alleged.

Section 3. Petition for annulment of voidable marriages. -

(a) Who may file. - The following persons may file a petition for annulment of voidable
marriage based on any of the grounds under article 45 of the Family Code and within the
period herein indicated:

(1) The contracting party whose parent, or guardian, or person exercising substitute
parental authority did not give his or her consent, within five years after attaining the
age of twenty-one unless, after attaining the age of twenty-one, such party freely
cohabitated with the other as husband or wife; or the parent, guardian or person
having legal charge of the contracting party , at any time before such party has
reached the age of twenty-one;

(2) The sane spouse who had no knowledge of the other's insanity; or by any
relative, guardian, or person having legal charge of the insane, at any time before the
death of either party; or by the insane spouse during the a lucid interval or after
regaining sanity, provided that the petitioner , after coming to reason, has not freely
cohabited with the other as husband or wife;

(3) The injured party whose consent was obtained by fraud, within five years after the
discovery of the fraud, provided that said party, with full knowledge of the facts
constituting the fraud, has not freely cohabited with the other as husband or wife;

(4) The injured party whose consent was obtained by force, intimidation, or undue
influence, within five years from the time the force intimidation, or undue influence
disappeared or ceased, provided that the force, intimidation, or undue influence
having disappeared or ceased, said party has not thereafter freely cohabited with the
other as husband or wife;

(5) The injured party where the other spouse is physically incapable of
consummating the marriage with the other and such incapability continues and
appears to be incurable, within five years after the celebration of marriage; and

(6) Te injured party where the other party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable, within five years after the
celebration of marriage.

(b) Where to file. - The petition shall be filed in the Family Court.

Section 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing. Or in
the case of non-resident respondent, where he may be found in the Philippines, at the election of the
petitioner.
Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts
constituting the cause of action.

(2) It shall state the names and ages of the common children of the parties and specify the
regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the

petitioner may apply for a provisional order for spousal support, the custody and support of
common children, visitation rights, administration of community or conjugal property, and
other matters similarly requiringurgent action.

(3) It must be verified and accompanied celebration of marriage. (b) Where to file.-The
petition shall be filed in the Family Court.

Section 4. Venue. - The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing, or in
the case of a non-resident respondent, where he may be found in the Philippines at the election of
the petitioner.

Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts
constituting the cause of action.

(2) it shall state the names and ages of the common children of the parties and specify the
regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the

petitioner may apply for a provisional order for spousal support, custody and support of
common children, visitation rights, administration of community or conjugal property, and
other matters similarly requiring urgent action.

(3) it must be verified and accompanied by a certification against forum shopping. The
verification and certification must be signed personally by me petitioner. No petition may be
filed solely by counsel or through an attorney-in-fact.

If the petitioner is in a foreign country, the verification and certification against forum
shopping shall be authenticated by the duly authorized officer of the Philippine embassy or
legation, consul general, consul or vice-consul or consular agent in said country.

(4) it shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office
of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days
from the date of its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be a ground for
immediate dismissal of the petition.

Section 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court
and by the following rules:

(1) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of
court, be effected upon him by publication once a week for two consecutive weeks in a
 newspaper of general circulation in the Philippines and in such places as the court may order
In addition, a copy of the summons shall be served on the respondent at his last known
address by registered mail or any other means the court may deem sufficient.

(2) The summons to be published shall be contained in an order of the court with the
following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal
grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to
answer within thirty days from the last issue of publication.

Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any
other ground that might warrant a dismissal of the case may be raised as an affirmative defense in
an answer.

Section 8. Answer. - (1) The respondent shall file his answer within fifteen days from service of
summons, or within thirty days from the last issue of publication in case of service of summons by
publication. The answer must be verified by the respondent himself and not by counsel or attorney-
in-fact.

(2) If the respondent fails to file an answer, the court shall not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court shall order
the public prosecutor to investigate whether collusion exists between the parties.

Section 9. Investigation report of public prosecutor. - (1) Within one month after receipt of the court
order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to
the court stating whether the parties are in collusion and serve copies thereof on the parties and
their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the on the finding of
collusion within ten days from receipt of a copy of a report The court shall set the report for
hearing and If convinced that the parties are in collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for
pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Section 10. Social worker. - The court may require a social worker to conduct a case study and
submit the corresponding report at least three days before the pre-trial. The court may also require a
case study at any stage of the case whenever necessary.

Section 11. Pre-trial. -

(1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall
set the pre-trial after the last pleading has been served and filed, or upon receipt of the report
of the public prosecutor that no collusion exists between the parties.

(2) Notice of pre-trial. - (a) The notice of pre-trial shall contain:

(1) the date of pre-trial conference; and

 (2) an order directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure the receipt thereof by the adverse party
at least three days before the date of pre-trial.

(b) The notice shall be served separately on the parties and their respective counsels
as well as on the public prosecutor. It shall be their duty to appear personally at the
pre-trial.

(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer.
In case of summons by publication and the respondent failed to file his answer,
notice of pre-trial shall be sent to respondent at his last known address.

Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements as may be allowed
by law, indicating the desired terms thereof;

(b) A concise statement of their respective claims together with the applicable laws and
authorities;

(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and
legal issues;

(d) All the evidence to be presented, including expert opinion, if any, briefly stating or
describing the nature and purpose thereof;

(e) The number and names of the witnesses and their respective affidavits; and

(f) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial under the succeeding paragraphs.

Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner fails to appear personally,
the case shall be dismissed unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear, the court shall proceed with the
pre-trial and require the public prosecutor to investigate the non-appearance of the
respondent and submit within fifteen days thereafter a report to the court stating whether his
non-appearance is due to any collusion between the parties. If there Is no collusion, the court
shall require the public prosecutor to intervene for the State during the trial on the merits to
prevent suppression or fabrication of evidence.

Section 14. Pre-trial conference. -At the pre-trial conference, the court:

(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement
on matters not prohibited by law.

The mediator shall render a report within one month from referral which, for good
reasons, the court may extend for a period not exceeding one month.
 (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-
trial conference, on which occasion it shall consider the advisability of receiving expert
testimony and such other makers as may aid in the prompt disposition of the petition.

Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up
In the conference, the action taken thereon, the amendments allowed on the pleadings, and except
as to the ground of declaration of nullity or annulment, the agreements or admissions made by the
parties on any of the matters considered, including any provisional order that may be necessary or
agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following;

(1) Facts undisputed, admitted, and those which need not be proved subject to
Section 16 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be
presented;

(4) Names of witnesses who will be presented and their testimonies in the form of
affidavits; and

(5) Schedule of the presentation of evidence.

(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the
State and take steps to prevent collusion between the parties at any stage of the
proceedings and fabrication or suppression of evidence during the trial on the merits.

(d) The parlies shall not be allowed to raise issues or present witnesses and evidence other
than those stated in the pre-trial order.

The order shall control the trial of the case, unless modified by the court to prevent manifest
injustice.

(e) The parties shall have five days from receipt of the pre-trial order to propose corrections
or modifications.

Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters,
such as the following:

(a) The civil status of persons;

(b) The validity of a marriage or of a legal separation;

(c) Any ground for legal separation;

(d) Future support;

 (e) The jurisdiction of courts; and

(f) Future legitime.

Section 17. Trial. - (1) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved.
No judgment on the pleadings, summary judgment, or confession of judgment shall be
allowed.

(3) The court may order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case. Such an order may be made if the
court determines on the record that requiring a party to testify in open court would not
enhance the ascertainment of truth; would cause to the party psychological harm or inability
to effectively communicate due to embarrassment, fear, or timidity; would violate the right of
a party to privacy; or would be offensive to decency or public morals.

(4) No copy shall be taken nor any examination or perusal of the records of the case or parts
thereof be made by any person other than a party or counsel of a party, except by order of
the court.

Section 18. Memoranda. - The court may require the parties and the public prosecutor, in
consultation with the Office of the Solicitor General, to file their respective memoranda support of
their claims within fifteen days from the date the trial is terminated. It may require the Office of the
Solicitor General to file its own memorandum if the case is of significant interest to the State. No
other pleadings or papers may be submitted without leave of court. After the lapse of the period
herein provided, the case will be considered submitted for decision, with or without the memoranda.

Section 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare
therein that the decree of absolute nullity or decree of annulment shall be issued by the court only
after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on
Liquidation, Partition and Distribution of Properties.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served
with copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall be
published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties.
Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal Is
filed by any of the parties the public prosecutor, or the Solicitor General.

(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree
if the parties have no properties.

If the parties have properties, the court shall observe the procedure prescribed in Section 21
of this Rule.
 The entry of judgment shall be registered in the Civil Registry where the marriage was
recorded and In the Civil Registry where the Family Court'granting the petition for declaration of
absolute nullity or annulment of marriage is located.

Section 20. Appeal. -

(1) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the
adverse parties.

Section 21. Liquidation, partition and distribution, custody, support of common children and delivery
of their presumptive iegltimes. - Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family
Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody, support of common children and delivery of their
presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had
been adjudicated in previous judicial proceedings.

Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a)
The court shall issue the Decree after;

(1) Registration of the entry of judgment granting the petition for declaration of nullity
or annulment of marriage in the Civil Registry where the marriage was celebrated
and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the
spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound
securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and
attach to the Decree the approved deed of partition.

Except in the case of children under Articles 36 and 53 of the Family Code, the court shall
order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of
the children affected.

Section 23. Registration and publication of the decree; decree as best evidence. - (a) The prevailing
party shall cause the registration of the Decree in the Civil Registry where the marriage was
registered, the Civil Registry of the place where the Family Court is situated, and in the National
Census and Statistics Office. He shall report td the court compliance with this requirement within
thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general circulation.
 (c) The registered Decree shall be the best evidence to prove the declaration of absolute
nullity or annulment of marriage and shall serve as notice to third persons concerning the
properties of petitioner and respondent as well as the properties or presumptive legitimes
delivered to their common children.

Section 24. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a
party dies at any stage of the proceedings before the entry of judgment, the court shall order the
case closed and terminated, without prejudice to the settlement of the estate in proper proceedings
in the regular courts.

(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be
binding upon the parties and their successors in interest in the settlement of the estate in the
regular courts.

Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-12-SC March 4, 2003

RE: PROPOSED RULE ON PROVISIONAL ORDERS

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court
submitting for this Court's consideration and approval the Proposed Rule on Provisional Orders, the
Court Resolved to APPROVED the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of
general circulation not later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.

RULE ON PROVISIONAL ORDERS

Section 1. When Issued, - Upon receipt of a verified petition for declaration of absolute nullity of void
marriage or for annulment of voidable marriage, or for legal separation, and at any time during the
proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or
designated custodian, may issue provisional orders and protection orders with or without a hearing.
These orders may be enforced immediately, with or without a bond, and for such period and under
such terms" and conditions as the court may deem necessary.

Section 2. Spousal Support. - In determining support for the spouses, the court may be guided by
the following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the
spouses may be supported from the properties of the absolute community or the conjugal
partnership.

(b) The court may award support to either spouse in such amount and for such period of time
as the court may deem just and reasonable based on their standard of living during the
marriage.
 (c) The court may likewise consider the following factors: (1) whether the spouse seeking
support is the custodian of a child whose circumstances make it appropriate for that spouse
not to seek outside employment; (2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find appropriate employment, and that
spouse's future earning capacity; (3) the-duration of the marriage; (4) the comparative
financial resources of the spouses, including their comparative earning abilities in the labor
market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to
the marriage, including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical and
emotional conditions of the spouses; (9) the ability of the supporting spouse to give support,
taking into account that spouse's earning capacity, earned and unearned income, assets,
and standard of living; and (10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of
the spouse.

Section 3. Child Support. - The common children of the spouses shall be supported from the
properties of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an
amount necessary for the support, maintenance, and education of the child. It shall be in proportion
to the resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the child;
(2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the
standard of living the child has been accustomed to; (4) the non-monetary contributions that the
parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the salary of the
parent.

Section 4. Child Custody. - In determining the right party or person to whom the custody of the child
of the parties may be awarded pending the petition, the court shall consider the best interests of the
child and shall give paramount consideration to the material and moral welfare of the child.

The court may likewise consider the following factors: (a) the agreement of the parties; (b) the
desire and ability of each parent to foster an open and loving relationship between the child and the
other parent; (c) the child's health, safety, and welfare; (d) any history of child or spousal abase by
the person seeking custody or who has had any filial relationship with the child, including anyone
courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of
alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional,
spiritual, psychological and educational environment; and (i) the preference of the child, if over
seven years of age and of sufficient discernment, unless the parent chosen is unfit.

The court may award provisional custody in the following order of preference: (1) to both
parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing
paragraph, especially the choice of the child over seven years of age, unless the parent chosen is
unfit; (3} to the surviving grandparent, or if there are several of them, to the grandparent chosen by
the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or
disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit
or disqualified; (5) to the child's actual custodian over twenty-one years of age, unless unfit or
disqualified; or (6) to any other person deemed by the court suitable to provide proper care and
guidance for the child.

The custodian temporarily designated by the" court shall give the court and the parents five
days notice of any plan to change the residence of the child or take him out of his residence for more
than three days provided it does not prejudice the visitation rights of the parents.

Section 5. Visitation Rights. - Appropriate visitation rights shall be provided to the parent who is not
awarded provisional custody unless found unfit or disqualified by the court. .

Section 6. Hold Departure Order. - Pending resolution of the petition, no child of the parties shall be
brought out of the country without prior order from the court.

The court, motu proprio or upon application under oath, may issue ex-parte a hold departure
order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure
of the child from the Philippines without the permission of the court.

The Family Court issuing the hold departure order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the
hold departure order issued within twenty-four hours from the time of its issuance and through the
fastest available means of transmittal.

The hold-departure order shall contain the following information:

(a) the complete name (including the middle name), the date and place of birth, and the
place of last residence of the person against whom a hold-departure order has been issued
or whose departure from the country has been enjoined;

(b) the complete title and docket number of the case in which the hold departure was issued;

(c) the specific nature of the case; and

(d) the date of the hold-departure order.

If available, a recent photograph of the person against whom a hold-departure order has been
issued or whose departure from the country has been enjoined should also be included.

The court may recall the order. motu proprio or upon verified motion of any of the parties after
summary hearing, subject to such terms and conditions as may be necessary for the best interests
of the child.

Section 7. Order of Protection. - The court may issue an Order of Protection requiring any person:

(a) to stay away from the home, school, business, or place of employment of the child, other
parent or any other party, and to stay away from any other specific place designated by the
court;

(b) to refrain from harassing, intimidating, or threatening such child or the other parent or any
person to whom custody of the child is awarded;
 (c) to refrain from acts of commission or omission that create an unreasonable risk to the
health, safety, or welfare of the child;

(d) to permit a parent, or a person entitled to visitation by a court order or a separation

agreement, to visit the child at stated periods;

(e) to permit a designated party to enter the residence during a specified period of time in
order to take persona! belongings not contested in a proceeding pending with the Family
Court;

(f) to comply with such other orders as are necessary for the protection of the child.

Section 8. Administration of Common Property. - If a spouse without just cause abandons the other
or-fails to comply with his or her obligations to the family, the court may, upon application of the
aggrieved party under oath, issue a provisional order appointing the applicant or a third person as
receiver or sole administrator of the common property subject to such precautionary conditions it
may impose.

The receiver or administrator may not dispose of or encumber any common property or
specific separate property of either spouse without prior authority of the court.

The provisional order issued by the court shall be registered in the proper Register of Deeds
and annotated in all titles of properties subject of the receivership or administration.

Section 9. Effectivity. - This Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.
[No. L-15853. July 27, 1960]

FERNANDO AQUINO, petitioner, vs. CONCHITA DELIZO, respondent.

1.MARRIAGE; ANNULMENT; CONCEALMENT OF PREGNANCY AT TIME OF MARRIAGE CONSTITUTES

FRAUD AS GROUND FOR ANNULMENT.—Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and is a ground for
annulment of marriage (Art. 85, par. (4) in relation to Art. 86, par. (3), New Civil Code).

2.NEW TRIAL; MERE FAILURE TO ANSWER MOTION IS NEITHER EVIDENCE OF COLLUSION NOR GROUND
FOR DENIAL.—When the evidence sought to be introduced at the new trial, taken together with what
has already been adduced would be sufficient to sustain the fraud alleged by plaintiff, the motion
praying

for new trial should not be denied simply because defendant f ailed to file her answer thereto. Such f
ailure cannot be taken as evidence of collusion, especially where a provincial fiscal has been ordered to
represent the Government precisely to prevent such collusion.

PETITION for review by certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

N. L. Dasig and C. L. Francisco for petitioner.

Federico Roy for respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of
First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with
respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it
being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date of
her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed from the
latter the fact that she was pregnant by another man, and sometime in April, 1955, or about four
months after their marriage, gave birth to a child. In her answer, defendant claimed that the child was
conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorneys for both parties appeared and the court a quo ordered Assistant Provincial
Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff
however, testified and the only documentary evidence presented was the marriage contract between
the parties. Def endant neither appeared nor presented any evidence despite the reservation made by
her counsel that he would present evidence on a later date.

On June 16, 1956, the trial court—noting that no birth certificate was presented to show that the child
was born within 180 days after the marriage between the parties, and holding that concealment of
pregnancy as alleged by plaintiff does not constitute such fraud as would annul a marriage—dismissed
the complaint. Through a verified "petition to reopen for reception of additional evidence", plaintiff
tried to present the certificates of birth and delivery of the child born of the defendant on April 26,
1955, which documents, according to him, he had failed to secure earlier and produce before the trial
court thru excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's
inability to present the proof of the child's birth, through her birth certificate, and for that reason the
court a quo erred in denying the motion for reception of additional evidence. On the theory, however,
that it was not impossible for plaintiff and defendant to have had sexual intercourse during their
engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did
not notice or even suspect that defendant was pregnant when he married her, the appellate court,
nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such
reconsideration be denied, that the case be remanded to the lower court for new trial. In .support of the
motion, plaintiff attached as annexes thereof the following documents:

"1.Affidavit of Cesar Aquino (Annex A) (defendant's brotherin-law and plaintiff's brother, with whom
defendant was living at the time plaintiff met, courted and married her, and with whom defendant has
begotten two more children, aside from her first born, in common-law relationship) admitting that he is
the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her
pregnancy from plaintiff at the time of plaintiffs marriage to defendant;

"2.Affidavit of defendant, Conchita Delizo (Annex 'B') admitting her pregnancy by Cesar Aquino, her
brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden
this fact from plaintiff before and up to the time of their marriage;

"3.Affidavit of Albert Powell (Annex 'C') stating that he knew that Cesar Aquino and defendant lived
together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant;

"4.Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April
26, 1955;

"5.Birth Certificate (Annex 'D') of Carrolle Ann Aquino, the second child of defendant with Cesar Aquino,
her brother-in-law;

"6.Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant;
and

"7.Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954,
the November, 1954 photo itself does not show defendant's pregnancy which must have been almost
four months old at the time the picture was taken."
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant
Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for
reconsideration, and deferred action on the prayer for new trial until after the case is disposed of As
both the defendant and the fiscal failed to file an answer, and .stating that it "does not believe the
veracity of the contents of the motion and its annexes," the Court of Appeals, on August 6, 1959, denied
the motion. From that order, the plaintiff brought the case to this Court thru the present petition for
certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be
sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage.
(Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the
decision sought to be reviewed, which was also an action for the annulment of marriage on the ground
of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be
unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th
month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar.
Here the defendant wife was alleged to be only more than four months pregnant at the time of her
marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent,
especially since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities,
even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the
umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It
is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height
above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull,
Clinical Obstetrics, p. 122.) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be
expected to know, merely by looking, whether or not she was pregnant at the time of their marriage,
more so because she must have attempted to conceal the true state of affairs. Even physicians and
surgeons, with the aid of the woman herself who shows and gives her subjective and objective
symptoms, can only claim positive diagnosis of pregnancy in 33% at five months and 50% at six months.
(XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10.)

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

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what
has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff.
The Court of Appeals should, therefore, not have denied the motion praying for new trial simply because
defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as evidence of
collusion, especially since a provincial fiscal has been ordered to represent the Government precisely to
prevent such collusion. As to the veracity of the contents of the motion and its annexes, the same can
best be determined only after hearing evidence. In the circumstances, we think that justice would be
better served if a new trial were ordered.
Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new
trial. Without costs.

Parás, C. J., Bengzon, Montemayor, Labrador, Concepción, and Reyes, J. B. L., JJ., concur.

Barrera, J., concurs in the result.

Decision set aside. Aquino vs. Delizo, 109 Phil. 21, No. L-15853 July 27, 1960
Anaya vs. Palaroan

No. L-27930. November 26, 1970.

AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee.

Civil Law; Marriages; Void and Voidable Marriages; Fraud as a ground for annulment of marriage.—For
fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85,
No. 4, of the Civil Code. This fraud, as a vice of consent, is limited exclusively by law to those kinds or
species of fraud enumerated in Article 86.

Same; Same; Same; Same; Legislative Intention.—The intention of Congress to confine the
circumstances that can constitute fraud as ground for annulment of marriage to three cases may be
deduced from the fact that, of all the causes of nullity enumerated in Article 85, Civil Code, fraud is the
only one given special treatment in a subsequent article within the chapter on void and voidable
marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud
in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted,
expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and
proceeds by enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a
previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude
all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was
followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Same; Same; Same; Non-disclosure of a husband's premarital relationship, not a fraud.—Non-disclosure

of a husband's pre-marital relationship with another woman is not one of the enumerated
circumstances that would constitute a ground for annulment; and it is further excluded by the last
paragraph of Article 86, Civil Code. While a woman may detest such non-disclosure of premarital
lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into
an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain,
the Court's duty is to give effect to the same, whether it agrees with the rule or not.

Pleadings and Practice; Reply; Cause of Action; New and additional cause of action, not allowed in the
reply.—If in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth
in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a
new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could
become interminable.

APPEAL from an order of the Juvenile and Domestic Relations Court. Juliano-Agrava, J.

REYES, J.B.L., J.:

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court,
Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled
"Aurora A. Anaya, plaintiff, vs. Fernando O. Palaroan, defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant
Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of
the marriage on 7 January 1954 on the ground that his consent was obtained through force and
intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589;
that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando,
upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while
the amount of the counterclaim was being negotiated "to settle the judgment," Fernando had divulged
to Aurora that several months prior to their marriage he had pre-marital relationship with a close
relative of his; and that "the nondivulgement to her of the aforementioned pre-marital secret on the
part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it
had hardly commenced . . . frank disclosure of which, certitude precisely precluded her, the Plaintiff
herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in
obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on
Appeal, page 3). She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegations in paragraph IV of the complaint and denied
having had pre-marital relationship with a close relative; he averred that under no circumstance would
he live with Aurora, as he had escaped from her and from her relatives the day following their marriage
on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of
lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the
marriage and her having enjoyed the support that had been granted her. He counterclaimed for
damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the
complaint but for its dismissal "with respect to the alleged moral damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

"(1)that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her
with love and affection not because he really felt so but because she merely happened to be the first girl
available to marry so he could evade marrying the close relative of his whose immediate members of
her family were threatening him to force him to marry her (the close relative);

"(2)that since he contracted the marriage for the reason intimated by him, and not because he loved
her, he secretly intended from the very beginning not to perform the marital duties and obligations
appurtenant thereto, and furthermore, he covertly made up his mind not to live with her;

"(3)that the foregoing clandestine intentions intimated by him were prematurely concretized for him,
when in order to placate and appease the immediate members of the family of the first girl (referent
being the close relative) and to convince them of his intention not to live with plaintiff, carried on a
courtship with a third girl with whom, after gaining the latters love cohabited and had several children
during the whole range of nine years that Civil Case No. 21589, had been litigated between them
(parties)"; (Record on Appeal, pages 10-11)
Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966
but it was postponed. Thereafter, while reviewing the expediente, the court realized that Aurora's
allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of Brown
vs. Yambao, 102 Phil. 168, holding:

"It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take
cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage,
involve public interest, and it is the policy of our law that no such decree be issued if any legal obstacles
thereto appear upon the record."—

the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff
Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and
thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital
relationship with another woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may
be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides:

"ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:

xxxxx xxxxx xxxxx

"(4) That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his
wife, as the case may be";

This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated
in Article 86, as follows:

"ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the
preceding article:

(1)Misrepresentation as to the identity of one of the contracting parties;

(2)Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and
the penalty imposed was imprisonment for two years or more;

(3)Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man
other than her husband.

"No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute Such
fraud as will give grounds for action for the annulment of marriage."

The intention of Congress to confine the circumstances that can constitute fraud as ground for
annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes
of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article
within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have
stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for
annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in
number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation
as to identity, nondisclosure of a previous conviction, and concealment of pregnancy), making it clear
that Congress intended to exclude all other frauds or deceits. To stress further such intention, the
enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or
deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action
for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the
enumerated circumstances that would constitute a ground for annulment; and it is further excluded by
the last paragraph of the article, providing that "no other misrepresentation of deceit as to . . . chastity"
shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of
premarital lewdness or feel having been thereby cheated into giving her consent to the marriage,
nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage
she entered into an institution in which society, and not herself alone, is interested. The lawmaker's
intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word
chosen by her) of the pre-marital relationship of her husband with another woman as her cause of
action, but that she has,

likewise, alleged in her reply that defendant Fernando paid court to her without any intention of
complying with his marital duties and obligations and covertly made up his mind not to live with her.
Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of intention to
perform duties of consortium) is an entirely new and additional "cause of action." According to the
plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in
the Complaint x x x" (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in
the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action
as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party
to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the
parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret intention on the
husband's part not to perform his marital duties must have been discovered by the wife soon after the
marriage: hence her action for annulment based on that fraud should have been brought within four
years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this
ground was only pleaded in 1966, it must be declared already barred.

FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ.,
concur.

Dizon and Makasiar, JJ., are on official leave.

Order affirmed.

Notes.—Annulment of marriage.—The fundamental policy of the State, which regards marriage as

indissoluble

and sacred, being the foundation upon which society rests, is to be cautious and strict in granting
annulment of marriage (Roque vs. Encarnacion, L-6505, August 23, 1954, 50 O.G. 4193; Buccat vs. De
Buccat, 72 Phil. 19).

As such, in order to annul a marriage, clear and undeniable proofs are necessary (Buccat vs. De Buccat,
supra). A motion for summary judgment annulling a marriage cannot properly be granted regardless of
any genuine issue raised by the pleadings (Roque vs. Encarnacion, supra).

To annul a marriage on the ground of fraud, it would have to be proved that the plaintiff's consent had
been secured by fraud or deceit; that is, that the fraudulent representations of the defendant had
actually induced her to contract marriage, in the firm belief that they were true (Garcia vs. Montague,
12 Phil. 480).

Failure to sign the marriage certificate or contract by the wedded couple, the witnesses and the priest
does not constitute a ground for nullity, it being not one of the causes for annulment of marriage and
the signing thereof being required by the statute simply for the purpose of evidencing the act of
marriage and to prevent fraud (De Loria vs. Apelan Felix, L-9005, June 20, 1958). Nor do the priest's
failure to make and file the affidavit required by Sections 20 and 21 of the Marriage Law for in articulo
mortis marriages and to furnish the parties with copies of the marriage certificate constitute a ground
for annulment, especially where it was caused by an emergency ( De Loria vs. Apelan Felix, supra).
G.R. No. 116607. April 10, 1996.*

EMILIO R. TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.

Actions; Judgments; Relief from Judgment; A final and executory judgment or order of the Regional Trial
Court may be set aside on the ground of fraud, accident, mistake or excusable negligence.—A petition
for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court. Under the rules,
a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of
fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing
that he has a good, substantial and meritorious defense or cause of action. If the petition is granted, the
court shall proceed to hear and determine the case as if a timely motion for new trial had been granted
therein.

Same; Same; Same; Attorneys; The failure of counsel to notify his client on time of an adverse judgment
to enable the latter to appeal therefrom is negligence which is not excusable.—The failure of
petitioner’s counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is
negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to
appeal is not a ground for setting aside a judgment valid and regular on its face.

Same; Same; Same; Same; Similarly inexcusable is the failure of a counsel to inform the trial court of his
client’s confinement and medical treatment as the reason for his non-appearance at the scheduled
hearings.—Similarly inexcusable was the failure of his former counsel to inform the trial court of
petitioner’s confinement and medical treatment as the reason for his non-appearance at the scheduled
hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally,
did not inform the court of this fact. This led the trial court to order the case deemed submitted for
decision on the basis of the evidence presented by the private respondent alone. To compound the
negligence of petitioner’s counsel, the order of the trial court was never assailed via a motion for
reconsideration.

Same; Same; Same; A petition for relief from judgment is an equitable remedy, allowed only in
exceptional cases where there is no other available or adequate remedy. Relief will not be granted to a
party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was
due to his own negligence.—A petition for relief from judgment is an equitable remedy; it is allowed
only in exceptional cases where there is no other available or adequate remedy. When a party has
another remedy available to him, which may be either a motion for new trial or appeal from an adverse
decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence
from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief will
not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the
right to appeal which had been lost thru inexcusable negligence.

Same; Same; Family Code; Marriage; Annulment; Legal Separation; Prosecutors; A grant of annulment of
marriage or legal separation by default is fraught with the danger of collusion, hence, in all cases for
annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the state for the purpose of preventing any collusion between the
parties and to take care that their evidence is not fabricated or suppressed.—A grant of annulment of
marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for
annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the state for the purpose of preventing any collusion between the
parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails
to answer the complaint, the court cannot declare him or her in default but instead, should order the
prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or
fiscal may oppose the application for legal separation or annulment through the presentation of his own
evidence, if in his opinion, the proof adduced is dubious and fabricated.

Same; Same; Same; Same; Same; Same; Same; The Constitution is committed to the policy of
strengthening the family as a basic social institution.—Our Constitution is committed to the policy of
strengthening the family as a basic social institution. Our family law is based on the policy that marriage
is not a mere contract, but a social institution in which the state is vitally interested. The state can find
no stronger anchor than on good, solid and happy families. The break up of families weakens our social
and moral fabric and, hence, their preservation is not the concern alone of the family members.

Same; Same; Same; Same; Same; Same; Same; Where the respondent in a petition for annulment
vehemently opposed the same, and where he does not allege that evidence was suppressed or
fabricated by any of the parties, the non-intervention of a prosecuting attorney to assure lack of
collusion between the contending parties is not fatal to the validity of the proceedings in the trial
court.—The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation
proceedings is to determine whether collusion exists between the parties and to take care that the
evidence is not suppressed or fabricated. Petitioner’s vehement opposition to the annulment
proceedings negates the conclusion that collusion existed between the parties. There is no allegation by
the petitioner that evidence was suppressed or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of
collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.

Same; Same; Same; Same; Same; Same; Psychological Incapacity; The finding of the trial court as to the
existence or nonexistence of a party’s psychological incapacity at the time of the marriage is final and
binding on the Supreme Court.—Suffice it to state that the finding of the trial court as to the existence
or nonexistence of petitioner’s psychological incapacity at the time of the marriage is final and binding
on us. Petitioner has not sufficiently shown that the trial court’s factual findings and evaluation of the
testimonies of private respondent’s witnesses vis-a-vis petitioner’s defenses are clearly and manifestly
erroneous.

PETITION for review on certiorari of a decision of the Court of Appeals.

Tuason vs. Court of Appeals

The facts are stated in the opinion of the Court.

Siguion Reyna, Montecillo & Ongsiako for petitioner.

Salonga, Hernandez & Allado for private respondent.

PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the
Court of Appeals in CA-G.R. CV No. 37925 denying petitioner’s appeal from an order of the Regional Trial
Court, Branch 149, Makati in Civil Case No. 3769.

This case arose from the following facts:

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149,
Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason.
In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and
from this union, begot two children; that at the time of the marriage, petitioner was already
psychologically incapacitated to comply with his essential marital obligations which became manifest
afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner
inflicted physical injuries on private respondent which impelled her to file a criminal case for physical
injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and
sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner was a
womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one
of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave
minimal support to the family and even refused to pay for the tuition fees of their children compelling
private respondent to accept donations and dole-outs from her family and friends; that petitioner
likewise became a spendthrift and abused his administration of the conjugal partnership by alienating
some of their assets and incurring large obligations with banks, credit card companies and other
financial institutions, without private respondent’s consent; that attempts at reconciliation were made
but they all failed because of petitioner’s refusal to reform. In addition to her prayer for annulment of
marriage, private respondent prayed for powers of administration to save the conjugal properties from
further dissipation.

Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he
and private respondent were a normal married couple during the first ten years of their marriage and
actually begot two children during this period; that it was only in 1982 that they began to have serious
personal differences when his wife did not accord the respect and dignity due him as a husband but
treated him like a persona non grata; that due to the “extreme animosities” between them, he
temporarily left the conjugal home for a “cooling-off period” in 1984; that it is private respondent who
had been taking prohibited drugs and had a serious affair with another man; that petitioner’s work as
owner and operator of a radio and television station exposed him to malicious gossip linking him to
various women in media and the entertainment world; and that since 1984, he experienced financial
reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the
conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return
to the conjugal home and continue his administration of the conjugal partnership.

After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four
witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both
private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty. Jose F.
Racela IV, private respondent’s counsel. Private respondent likewise submitted documentary evidence
consisting of newspaper articles of her husband’s relationship with other women, his apprehension by
the authorities for illegal possession of drugs; and copies of a prior church annulment decree The
parties’ marriage was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was
affirmed by the National Appellate Matrimonial Tribunal in 1986.

During presentation of private respondent’s evidence, petitioner, on April 18, 1990, filed his Opposition
to private respondent’s petition for appointment as administratrix of the conjugal partnership of gains.

After private respondent rested her case, the trial court scheduled the reception of petitioner’s evidence
on May 11, 1990.

On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved for a
postponement on the ground that the principal counsel was out of the country and due to return on the
first week of June.4 The court granted the motion and reset the hearing to June 8, 1990.5

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared
petitioner to have waived his right to present evidence and deemed the case submitted for decision on
the basis of the evidence presented.

On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent’s
marriage to petitioner and awarding custody of the children to private respondent. The court ruled:

“WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R.
Tuason on June 3, 1972 is declared null and void ab initio on the ground of psychological incapacity on
the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be
recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the
registry of Makati, Metro Manila where the marriage is annulled.

The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to
the plaintiff.

The foregoing judgment is without prejudice to the application of the other effects of annulment as
provided for under Arts. 50 and 51 of the Family Code of the Philippines.”

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from
the decision.

On September 24, 1990, private respondent filed a “Motion for Dissolution of Conjugal Partnership of
Gains and Adjudication to Plaintiff of the Conjugal Properties.”7 Petitioner opposed the motion on
October 17, 1990.
Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a
petition for relief from judgment of the June 29, 1990 decision.

The trial court denied the petition on August 8, 1991.9

Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief
from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of
the trial court.

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under the circumstances
of the case.

We rule in the negative.

A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which
provides:

“Section 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof.—
When a judgment or order is entered, or any other proceeding is taken, against a party in a Court of First
Instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court
and in the same cause praying that the judgment, order or proceeding be set aside.”

Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on
the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert
facts showing that he has a good, substantial and meritorious defense or cause of action.11 If the
petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new
trial had been granted therein.

In the case at bar, the decision annulling petitioner’s marriage to private respondent had already
become final and executory when petitioner failed to appeal during the reglementary period. Petitioner
however claims that the decision of the trial court was null and void for violation of his right to due
process. He contends he was denied due process when, after failing to appear on two scheduled
hearings, the trial court deemed him to have waived his right to present evidence and rendered
judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the
hearings on the ground that he was then “confined for medical and/or rehabilitation reasons.”13 In his
affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of
the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was
admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa,
Bicutan, Taguig, Metro Manila of the Philippine Constabulary—Integrated National Police.14 The
records, however, show that the former counsel of petitioner did not inform the trial court of this
confinement. And when the court rendered its decision, the same counsel was out of the country for
which reason the decision became final and executory as no appeal was taken therefrom.

The failure of petitioner’s counsel to notify him on time of the adverse judgment to enable him to
appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon
the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss
of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.
Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner’s
confinement and medical treatment as the reason for his non-appearance at the scheduled hearings.
Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not
inform the court of this fact. This led the trial court to order the case deemed submitted for decision on
the basis of the evidence presented by the private respondent alone. To compound the negligence of
petitioner’s counsel, the order of the trial court was never assailed via a motion for reconsideration.

Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to
present evidence but he was not denied his day in court. As the records show, petitioner, through
counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-
examined private respondent’s witnesses and even submitted his opposition to private respondent’s
motion for dissolution of the conjugal partnership of gain.

A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where
there is no other available or adequate remedy. When a party has another remedy available to him,
which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he
was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition.18 Indeed, relief will not be granted to a party who
seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his
own negligence; otherwise the petition for relief can be used to revive the right to appeal which had
been lost thru inexcusable negligence.

Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which
provides that in actions for annulment of marriage or legal separation, the prosecuting officer should
intervene for the state because the law “looks with disfavor upon the haphazard declaration of
annulment of marriages by default.” He contends that when he failed to appear at the scheduled
hearings, the trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance.

Articles 48 and 60 of the Family Code read as follows:

“Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order
the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.”

xxx

“Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of
judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed.”

A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion.22 Hence, in all cases for annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of
preventing any collusion between the parties and to take care that their evidence is not fabricated or
suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her
in default but instead, should order the prosecuting attorney to determine if collusion exists between
the parties.23 The prosecuting attorney or fiscal may oppose the application for legal separation or
annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious
and fabricated.24 Our Constitution is Taken from Articles 88 and 101 of the Civil Code of the Philippines
which were also taken from Article 85 of the Old Civil Code.

Rule 18, Section 6 provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation.—If the defendant in an
action for annulment of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is
no collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated.

committed to the policy of strengthening the family as a basic social institution.25 Our family law is
based on the policy that marriage is not a mere contract, but a social institution in which the state is
vitally interested. The state can find no stronger anchor than on good, solid and happy families. The
break up of families weakens our social and moral fabric and, hence, their preservation is not the
concern alone of the family members.

The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code.
For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner filed his
answer to the complaint and contested the cause of action alleged by private respondent. He actively
participated in the proceedings below by filing several pleadings and cross-examining the witnesses of
private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds
barred contest and not by collusion.

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings
is to determine whether collusion exists between the parties and to take care that the evidence is not
suppressed or fabricated. Petitioner’s vehement opposition to the annulment proceedings negates the
conclusion that collusion existed between the parties. There is no allegation by the petitioner that
evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are
convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial court.

Petitioner also refutes the testimonies of private respondent’s witnesses, particularly Dr. Samuel Wiley
and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were able to
present his evidence, he could have testified that he was not psychologically incapacitated at the time of
the marriage as indicated by the fact that during their first ten years, he and private respondent lived
together with their children as one normal and happy family, that he continued supporting his family
even after he left the conjugal dwelling and that his work as owner and operator of a radio and
television corporation places him in the public eye and makes him a good subject for malicious gossip
linking him with various women. These facts, according to petitioner, should disprove the ground for
annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner’s
psychological incapacity at the time of the marriage is final and binding on us.26 Petitioner has not
sufficiently shown that the trial court’s factual findings and evaluation of the testimonies of private
respondent’s witnesses vis-a-vis petitioner’s defenses are clearly and manifestly erroneous.27

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in
CA-G.R. CV No. 37925 is affirmed.

SO ORDERED.

Regalado (Chairman), Romero and Mendoza, JJ., concur.

Torres, Jr., J., On leave.

Petition denied, judgment affirmed. Tuason vs. Court of Appeals, 256 SCRA 158, G.R. No. 116607 April
10, 1996
G.R. No. 116607 April 10, 1996

EMILIO R. TUASON, petitioner,

vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.

PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of
the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner's appeal from an order of the
Regional Trial Court, Branch 149, Makati in Civil Case No. 3769.

This case arose from the following facts:

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch
149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R.
Tuason. In her complaint, private respondent alleged that she and petitioner were married on June
3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was
already psychologically incapacitated to comply with his essential marital obligations which became
manifest afterward and resulted in violent fights between husband and wife; that in one of their
fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal
case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the
authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that
petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women
in succession, one of whom he presented to the public as his wife; that after he left the conjugal
dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of
their children compelling private respondent to accept donations and dole-outs from her family and
friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal
partnership by alienating some of their assets and incurring large obligations with banks, credit card
companies and other financial institutions, without private respondent's consent; that attempts at
reconciliation were made but they all failed because of petitioner's refusal to reform. In addition to
her prayer for annulment of marriage, private respondent prayed for powers of administration to save
the conjugal properties from further dissipation.1

Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he
and private respondent were a normal married couple during the first ten years of their marriage and
actually begot two children during this period; that it was only in 1982 that they began to have
serious personal differences when his wife did not accord the respect and dignity due him as a
husband but treated him like a persona non grata; that due to the "extreme animosities " between
them, he temporarily left the conjugal home for a "cooling-off period" in 1984; that it is private
respondent who had been taking prohibited drugs and had a serious affair with another man; that
petitioner's work as owner and operator of a radio and television station exposed him to malicious
gossip linking him to various women in media and the entertainment world; and that since 1984, he
experienced financial reverses in his business and was compelled, with the knowledge of his wife, to
dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the
court to allow him to return to the conjugal home and continue his administration of the conjugal
partnership.

After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four
witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both
private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty. Jose F.
Racela IV, private respondent's counsel. Private respondent likewise submitted documentary
evidence consisting of newspaper articles of her husband's relationship with other women, his
apprehension by the authorities for illegal possession of drugs; and copies of a prior a church
annulment decree.2 The parties' marriage was clerically annulled by the Tribunal Metropolitanum
Matrimonial which was affirmed by the National Appellate Matrimonial Tribunal in 1986.3

During presentation of private respondent's evidence, petitioner, on April 18, 1990, filed his
Opposition to private respondent's petition for appointment as administratrix of the conjugal
partnership of gains.

After private respondent rested her case, the trial court scheduled the reception of petitioner's
evidence on May 11, 1990.

On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner moved for a
postponement on the ground that the principal counsel was out of the country and due to return on
the first week of June.4 The court granted the motion and reset the hearing to June 8, 1990.5

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court
declared petitioner to have waived his right to present evidence and deemed the case submitted for
decision on the basis of the evidence presented.

On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent's
marriage to petitioner and awarding custody of the children to private respondent. The court ruled:

WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L.

Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void ab initio on
the ground of psychological incapacity on the part of the defendant under Sec. 36 of
the Family Code. Let herein judgment of annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage was contracted and in the registry of
Makati, Metro Manila where the marriage is annulled.

The custody of the two (2) legitimate children of the plaintiff and the defendant is
hereby awarded to the plaintiff.

The foregoing judgment is without prejudice to the application of the other effects of
annulment as provided for under Arts . 50 and 51 of the Family Code of the
Philippines.6

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken
from the decision.

On September 24, 1990, private respondent filed a "Motion for Dissolution of Conjugal Partnership of
Gains and Adjudication to Plaintiff of the Conjugal Properties."7 Petitioner opposed the motion on
October 17, 1990.8

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a
petition for relief from judgment of the June 29, 1990 decision.

The trial court denied the petition on August 8, 1991.9

Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for
relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the
order of the trial court. 10

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under the
circumstances of the case.

We rule in the negative.

A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court
which provides:

Sec. 2. Petition to Court of First Instance for relief from judgment or other proceeding
thereof. — When a judgment or order is entered, or any other proceeding is taken,
against a party in a Court of First Instance through fraud, accident, mistake, or
excusable negligence, he may file a petition in such court and in the same cause
praying that the judgment, order or proceeding be set aside.

Under the rules, a final and executory judgment or order of the Regional Trial Court may be set
aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner
must assert facts showing that he has a good, substantial and meritorious defense or cause of
action. 11 If the petition is granted, the court shall proceed to hear and determine the case as if a
timely motion for new trial had been granted therein. 12

In the case at bar, the decision annulling petitioner's marriage to private respondent had already
become final and executory when petitioner failed to appeal during the reglementary period.
Petitioner however claims that the decision of the trial court was null and void for violation of his right
to due process. He contends he was denied due process when, after failing to appear on two
scheduled hearings, the trial court deemed him to have waived his right to present evidence and
rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his
absence at the hearings on the ground that he was then "confined for medical and/or rehabilitation
reason." 13 In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel
F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March
27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center
at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated
National Police. 14 The records, however, show that the former counsel of petitioner did not inform the
trial court of this confinement. And when the court rendered its decision, the same counsel was out
of the country for which reason the decision became final and executory as no appeal was taken
therefrom. 15

The failure of petitioner's counsel to notify him on time of the adverse judgment to enable him to
appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding
upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in
the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its
face. 16

Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner's
confinement and medical treatment as the reason for his non-appearance at the scheduled hearings.
Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not
inform the court of this fact. This led the trial court to order the case deemed submitted for decision
on the basis of the evidence presented by the private respondent alone. To compound the
negligence of petitioner's counsel, the order of the trial court was never assailed via a motion for
reconsideration.

Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right
to present evidence but he was not denied his day in court. As the record show, petitioner, through
counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-
examined private respondent's witnesses and even submitted his opposition to private respondent's
motion for dissolution of the conjugal partnership of gains. 17

A petition for relief from judgment is an equitable remedy; it is allowed only in exception cases where
there is no other available or adequate remedy. When a party has another remedy available or
adequate remedy. When a party has another remedy available to him, which may be either a motion
for new trial or appeal from an adverse decision of the trial or appeal from an adverse decision of the
trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing
such motion or taking such appeal, he cannot avail himself of this petition. 18 Indeed, relief will not be
granted to a party who seeks avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive
the right to appeal which had been lost thru inexcusable negligence. 19

Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which
provides that in actions for annulment of marriage or legal separation, the prosecuting officer should
intervene for the state because the law "looks with disfavor upon the haphazard declaration of
annulment of marriages by default." He contends that when he failed to appear at the scheduled
hearings, the trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance. 20

Articles 48 and 60 of the Family Code read as follows:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based

upon a stipulation of facts or confession of judgment.

xxx xxx xxx

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed. 21

A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion. 22 Hence, in all cases for annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of
preventing any collusion between the parties and to take care that their evidence is not fabricated or
suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if collusion exists
between the parties.23 The prosecuting attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of his own evidence, if in his opinion, the proof
adduced is dubious and fabricated.24 Our Constitution is committed to the policy of strengthening the
family as a basic social institution. 25 Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the state is vitally interested. The state can find no stronger
anchor than on good, solid and happy families. The break up of families weakens our social and
moral fabric and, hence, their preservation is not the concern alone of the family members.

The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family
Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner
filed his answer to the complaint and contested the cause of action alleged by private respondent.
He actively participated in the proceedings below by filing several pleadings and cross-examining
the witnesses of private respondent. It is crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by collusion.

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation
proceedings is to determine whether collusion exists between the parties and to take care that the
evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment
proceedings negates the conclusion that collusion existed between the parties. There is no
allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under
these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure
lack of collusion between the contending parties is not fatal to the validity of the proceedings in the
trial court.

Petitioner also refutes the testimonies of private respondent's witnesses, particularly Dr. Samuel
Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were
able to present his evidence, he could have testified that he was not psychologically incapacitated at
the time of the marriage as indicated by the fact that during their first ten years, he and private
respondent lived together with their children as one normal and happy family, that he continued
supporting his family even after he left the conjugal dwelling and that his work as owner and operator
of a radio and television corporation places him in the public eye and makes him a good subject for
malicious gossip linking him with various women. These facts, according to petitioner, should
disprove the ground for annulment of his marriage to petitioner.

Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner's
psychological incapacity at the time of the marriage is final and binding on us. 26 Petitioner has not
sufficiently shown that the trial court's factual findings and evaluation of the testimonies of private
respondent's witnesses vis-a-vis petitioner's defenses are clearly and manifestly erroneous. 27

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of
Appeals in CA-G.R. CV No. 37925 is affirmed.

Regalado, Romero and Mendoza, JJ., concur.

Torres, Jr., J., is on leave.

G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,

vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent
victims are two children horn out of the same union. Upon this Court now falls the not too welcome
task of deciding the issue of who, between the father and mother, is more suitable and better
qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan
City where Reynaldo was employed by the National Steel Corporation and Teresita was employed
as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse.
She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his
employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and
Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On
August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were
on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to
the United States, their second child, a son, this time, and given the name Reginald Vince, was born
on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita
blamed Reynaldo for the break-up, stating he was always nagging her about money matters.
Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry
and antique furniture instead of attending to household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left
Reynaldo and the children and went back to California. She claims, however, that she spent a lot of
money on long distance telephone calls to keep in constant touch with her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh
was not yet completed, he was sent back by his company to Pittsburgh. He had to leave his children
with his sister, co-petitioner Guillerma Layug and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal
case for bigamy against her and she was afraid of being arrested. The judgment of conviction in the
bigamy case was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou,
Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided to return to the
Philippines and on December 8, 1992 and filed the petition for a writ of habeas corpus against herein
two petitioners to gain custody over the children, thus starting the whole proceedings now reaching
this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's
parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority
over them but with rights of visitation to be agreed upon by the parties and to be approved by the
Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-
Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation
rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of
Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged
in speculations and conjectures, resulting in its erroneous conclusion that custody of the children
should be given to respondent Teresita.

We believe that respondent court resolved the question of custody over the children through an
automatic and blind application of the age proviso of Article 363 of the Civil Code which reads:

Art. 363. In all questions on the care, custody, education and property of the children,
the latter's welfare shall be paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling reasons for such
measure.

and of Article 213 of the Family Code which in turn provides:

Art. 213. In case of separation of the parents parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age unless the
parent chosen is unfit.

The decision under review is based on the report of the Code Commission which drafted Article 213
that a child below seven years still needs the loving, tender care that only a mother can give and
which, presumably, a father cannot give in equal measure. The commentaries of a member of the
Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family
Code, were also taken into account. Justice Diy believes that a child below seven years should still
be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on
the theory that moral dereliction has no effect on a baby unable to understand such action.
(Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an
appreciation of relevant facts and the law which should apply to those facts. The task of choosing
the parent to whom custody shall be awarded is not a ministerial function to be determined by a
simple determination of the age of a minor child. Whether a child is under or over seven years of
age, the paramount criterion must always be the child's interests. Discretion is given to the court to
decide who can best assure the welfare of the child, and award the custody on the basis of that
consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all
controversies regarding the custody of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned, taking into account the respective
resources and social and moral situations of the contending parents", and in Medina
vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as
against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this
manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts
must not lose sight of the basic principle that "in all questions on the care, custody,
education and property of children, the latter's welfare shall be paramount" (Civil
Code of the Philippines. Art. 363), and that for compelling reasons, even a child
under seven may be ordered separated from the mother (do). This is as it should be,
 for in the continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the Roman law,
under which the offspring was virtually a chattel of his parents into a radically
different institution, due to the influence of Christian faith and doctrines. The
obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor."

As a result, the right of parents to the company and custody of their children is but
ancillary to the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training and development
(Civil Code, Art. 356).

(pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code
to take into account all relevant considerations. If a child is under seven years of age, the law
presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It
can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but,
again, the court is not bound by that choice. In its discretion, the court may find the chosen parent
unfit and award custody to the other parent, or even to a third party as it deems fit under the
circumstances.

In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind
celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on
January 12, 1995. Both are studying in reputable schools and appear to be fairly intelligent children,
quite capable of thoughtfully determining the parent with whom they would want to live. Once the
choice has been made, the burden returns to the court to investigate if the parent thus chosen is
unfit to assume parental authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the
choice of the children and rather than verifying whether that parent is fit or unfit, respondent court
simply followed statutory presumptions and general propositions applicable to ordinary or common
situations. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a
guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more
intent on emphasizing the "torture and agony" of a mother separated from her children and the
humiliation she suffered as a result of her character being made a key issue in court rather than the
feelings and future, the best interests and welfare of her children. While the bonds between a mother
and her small child are special in nature, either parent, whether father or mother, is bound to suffer
agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of
the other parent. It is not so much the suffering, pride, and other feelings of either parent but the
welfare of the child which is the paramount consideration.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave
greater attention to the choice of Rosalind and considered in detail all the relevant factors bearing on
the issue of custody.

When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores
Macabulos, to determine the effects of uprooting her from the Assumption College where she was
studying. Four different tests were administered. The results of the tests are quite revealing. The
responses of Rosalind about her mother were very negative causing the psychologist to delve
deeper into the child's anxiety. Among the things revealed by Rosalind was an incident where she
saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally
emblazed because of constant fears that she may have to leave school and her aunt's family to go
back to the United States to live with her mother. The 5-1/2 page report deals at length with feelings
of insecurity and anxiety arising from strong conflict with the mother. The child tried to compensate
by having fantasy activities. All of the 8 recommendations of the child psychologist show that
Rosalind chooses petitioners over the private respondent and that her welfare will be best served by
staying with them (pp. 199-205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the
travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada
Lopez, stated that the child Rosalind refused to go back to the United States and be reunited with
her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did
everything for her and Reginald. The child was found suffering from emotional shock caused by her
mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-
209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date
when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered.
This argument is flawed. Considerations involving the choice made by a child must be ascertained at
the time that either parent is given custody over the child. The matter of custody is not permanent
and unalterable. If the parent who was given custody suffers a future character change and
becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v.
Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of
the child must be determined as of the time that either parent is chosen to be the custodian. At the
present time, both children are over 7 years of age and are thus perfectly capable of making a fairly
intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the
children crying, grabbing, and embracing her to prevent the father from taking them away from her.
We are more inclined to believe the father's contention that the children ignored Teresita in court
because such an emotional display as described by Teresita in her pleadings could not have been
missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P.
Bersamin personally observed the children and their mother in the courtroom. What the Judge found
is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the
matter.

And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more
understanding, especially as her conduct and demeanor in the courtroom (during
most of the proceedings) or elsewhere (but in the presence of the undersigned
presiding judge) demonstrated her ebulent temper that tended to corroborate the
alleged violence of her physical punishment of the children (even if only for ordinary
disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to
show deference and respect to the Court and the other parties (pp. 12-13, RTC
Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses.
Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo
and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was
taken into account by the trial court which stated that the allegations of bias and unfairness made by
Teresita against the psychologist and social worker were not substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the
objectivity of the interviews were unshaken and unimpeached. We might add that their testimony
remain uncontroverted. We also note that the examinations made by the experts were conducted in
late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December,
1992. Thus, the examinations were at that time not intended to support petitioners' position in
litigation, because there was then not even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did materialize does not change the tenor in which
they were first obtained.

Furthermore, such examinations, when presented to the court must be construed to have been
presented not to sway the court in favor of any of the parties, but to assist the court in the
determination of the issue before it. The persons who effected such examinations were presented in
the capacity of expert witnesses testifying on matters within their respective knowledge and
expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17
SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested
documents, at the request, not of a public officer or agency of the Government, but of
a private litigant, does not necessarily nullify the examination thus made. Its purpose,
presumably, to assist the court having jurisdiction over said litigation, in the
performance of its duty to settle correctly the issues relative to said documents. Even
a non-expert private individual may examine the same, if there are facts within his
knowledge which may help, the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private individual,
does not, certainly become null and void when the examiner is an expert and/or an
officer of the NBI.

(pp. 991-992.)

In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate
Court, et al. (185 SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place
whatever weight they choose upon such testimonies in accordance with the facts of
the case. The relative weight and sufficiency of expert testimony is peculiarly within
the province of the trial court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and process of the reasoning
by which he has supported his opinion, his possible bias in favor of the side for whom
he testifies, the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which
reserve to illuminate his statements. The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view of all the facts and circumstances
in the case and when common knowledge utterly fails, the expert opinion may be
given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the
expert witness and the evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence of an abuse of that
discretion.

(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses'
character and to observe their respective demeanor that the trial court opted to rely on their
testimony, and we believe that the trial court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her
aunt were about to board a plane when they were off-loaded because there was no required
clearance. They were referred to her office, at which time Reginald was also brought along and
interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview
of minors who leave for abroad with their parents or other persons. The interview was for purposes
of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On cross-
examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother
was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez
would compromise her position, ethics, and the public trust reposed on a person of her position in
the course of doing her job by falsely testifying just to support the position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A.
degree holder also in Psychology with her thesis graded "Excellent". She was a candidate for a
doctoral degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of
the interview but Ms. Macabulos services were secured because Assumption College wanted an
examination of the child for school purposes and not because of any litigation. She may have been
paid to examine the child and to render a finding based on her examination, but she was not paid to
fabricate such findings in favor of the party who retained her services. In this instance it was not
even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed
that a professional of her potential and stature would compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she
had a subsisting marriage with another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the
Reynaldo's fellow NSC employees.

3. She is incapable of providing the children with necessities and conveniences

commensurate to their social standing because she does not even own any home in
the Philippines.

4. She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which
would justify depriving her of custody over the children; worse, she claims, these findings are non-
existent and have not been proved by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to
be separated from the mother, without considering what the law itself denominates as compelling
reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this
Court stated that it found no difficulty in not awarding custody to the mother, it being in the best
interest of the child "to be freed from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in
the moral and social outlook of [the child] who was in her formative and most impressionable stage .
. ."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They
understand the difference between right and wrong, ethical behavior and deviant immorality. Their
best interests would be better served in an environment characterized by emotional stability and a
certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an
"unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to give the
children the kind of attention and care which the mother is not in a position to extend.

The argument that the charges against the mother are false is not supported by the records. The
findings of the trial court are based on evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in
California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a
year later, she had already driven across the continental United States to commence living with
another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of
course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous
marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that she
told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this
story were given credence, it adds to and not subtracts from the conviction of this Court about
Teresita's values. Rape is an insidious crime against privacy. Confiding to one's potential rapist
about a prior marriage is not a very convincing indication that the potential victim is averse to the act.
The implication created is that the act would be acceptable if not for the prior marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape
incident itself is unlikely against a woman who had driven three days and three nights from
California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed
and, who immediately thereafter started to live with him in a relationship which is marital in nature if
not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while
married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there
in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the
National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his
co-employee, in the latter's house. The record shows that the daughter Rosalind suffered emotional
disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in
their house. The record also shows that it was Teresita who left the conjugal home and the children,
bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed
him and was seen in his company in a Cebu hotel, staying in one room and taking breakfast
together. More significant is that letters and written messages from Teresita to Perdencio were
submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under
"compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over
seven years old and their clear choice is the father, but the illicit or immoral activities of the mother
had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral
values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from
the records appears to have become final (pp. 210-222, Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and
substitute mother because his job is in the United States while the children will be left behind with
their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a
temporary one. He was sent there to oversee the purchase of a steel mill component and various
equipment needed by the National Steel Corporation in the Philippines. Once the purchases are
completed, there is nothing to keep him there anymore. In fact, in a letter dated January 30, 1995,
Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return
to the Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over
seven years old. Their choice of the parent with whom they prefer to stay is clear from the record.
From all indications, Reynaldo is a fit person, thus meeting the two requirements found in the first
paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said
article no longer applies as the children are over seven years. Assuming that the presumption should
have persuasive value for children only one or two years beyond the age of seven years mentioned
in the statute, there are compelling reasons and relevant considerations not to grant custody to the
mother. The children understand the unfortunate shortcomings of their mother and have been
affected in their emotional growth by her behavior.

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

SO ORDERED.

Feliciano, Romero, Vitug and Francisco, JJ., concur.

G.R. Nos. 175279-80 June 5, 2013

SUSAN LIM-LUA, Petitioner,

vs.
DANILO Y. LUA, Respondent.

DECISION

VILLARAMA, JR., J.:

In this petition for review on certiorari under Rule 45, petitioner seeks to set aside the
Decision1 dated April 20, 2006 and Resolution2 dated October 26, 2006 of the Court of Appeals (CA)
dismissing her petition for contempt (CA-G.R. SP No. 01154) and granting respondent's petition for
certiorari (CA-G.R. SP No. 01315).

The factual background is as follows:

On September 3, 2003,3 petitioner Susan Lim-Lua filed an action for the declaration of nullity of her
marriage with respondent Danilo Y. Lua, docketed as Civil Case No. CEB-29346 of the Regional
Trial Court (RTC) of Cebu City, Branch 14.

In her prayer for support pendente lite for herself and her two children, petitioner sought the amount
of ₱500,000.00 as monthly support, citing respondent’s huge earnings from salaries and dividends in
several companies and businesses here and abroad.4

After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order5 dated March 31, 2004 granting
support pendente lite, as follows:

From the evidence already adduced by the parties, the amount of Two Hundred Fifty (₱250,000.00)
Thousand Pesos would be sufficient to take care of the needs of the plaintiff. This amount excludes
the One hundred thirty-five (₱135,000.00) Thousand Pesos for medical attendance expenses
needed by plaintiff for the operation of both her eyes which is demandable upon the conduct of such
operation. The amounts already extended to the two (2) children, being a commendable act of
defendant, should be continued by him considering the vast financial resources at his disposal.

According to Art. 203 of the Family Code, support is demandable from the time plaintiff needed the
said support but is payable only from the date of judicial demand. Since the instant complaint was
filed on 03 September 2003, the amount of Two Hundred Fifty (₱250,000.00) Thousand should be
paid by defendant to plaintiff retroactively to such date until the hearing of the support pendente lite.
₱250,000.00 x 7 corresponding to the seven (7) months that lapsed from September, 2003 to March
2004 would tantamount to a total of One Million Seven Hundred Fifty (₱1,750,000.00) Thousand
Pesos. Thereafter, starting the month of April 2004, until otherwise ordered by this Court, defendant
is ordered to pay a monthly support of Two Hundred Fifty Thousand (₱250,000.00) Pesos payable
within the first five (5) days of each corresponding month pursuant to the third paragraph of Art. 203
of the Family Code of the Philippines. The monthly support of ₱250,000.00 is without prejudice to
any increase or decrease thereof that this Court may grant plaintiff as the circumstances may
warrant i.e. depending on the proof submitted by the parties during the proceedings for the main
action for support.6

Respondent filed a motion for reconsideration,7 asserting that petitioner is not entitled to spousal
support considering that she does not maintain for herself a separate dwelling from their children
and respondent has continued to support the family for their sustenance and well-being in
accordance with family’s social and financial standing. As to the ₱250,000.00 granted by the trial
court as monthly support pendente lite, as well as the ₱1,750,000.00 retroactive support, respondent
found it unconscionable and beyond the intendment of the law for not having considered the needs
of the respondent.

In its May 13, 2004 Order, the trial court stated that the March 31, 2004 Order had become final and
executory since respondent’s motion for reconsideration is treated as a mere scrap of paper for
violation of the threeday notice period under Section 4, Rule 15 of the 1997 Rules of Civil Procedure,
as amended, and therefore did not interrupt the running of the period to appeal. Respondent was
given ten (10) days to show cause why he should not be held in contempt of the court for
disregarding the March 31, 2004 order granting support pendente lite.8

His second motion for reconsideration having been denied, respondent filed a petition for certiorari in
the CA.

On April 12, 2005, the CA rendered its Decision,9 finding merit in respondent’s contention that the
trial court gravely abused its discretion in granting ₱250,000.00 monthly support to petitioner without
evidence to prove his actual income. The said court thus decreed:

WHEREFORE, foregoing premises considered, this petition is given due course. The assailed
Orders dated March 31, 2004, May 13, 2004, June 4, 2004 and June 18, 2004 of the Regional Trial
Court, Branch 14, Cebu City issued in Civil Case No. CEB No. 29346 entitled "Susan Lim Lua
versus Danilo Y. Lua" are hereby nullified and set aside and instead a new one is entered ordering
herein petitioner:

a) to pay private respondent a monthly support pendente lite of ₱115,000.00 beginning the
month of April 2005 and every month thereafter within the first five (5) days thereof;

b) to pay the private respondent the amount of ₱115,000.00 a month multiplied by the
number of months starting from September 2003 until March 2005 less than the amount
supposedly given by petitioner to the private respondent as her and their two (2) children
monthly support; and

c) to pay the costs.

SO ORDERED.10

Neither of the parties appealed this decision of the CA. In a Compliance11 dated June 28, 2005,
respondent attached a copy of a check he issued in the amount of ₱162,651.90 payable to
petitioner. Respondent explained that, as decreed in the CA decision, he deducted from the amount
of support in arrears (September 3, 2003 to March 2005) ordered by the CA -- ₱2,185,000.00 -- plus
₱460,000.00 (April, May, June and July 2005), totaling ₱2,645,000.00, the advances given by him to
his children and petitioner in the sum of ₱2,482,348.16 (with attached photocopies of
receipts/billings).

In her Comment to Compliance with Motion for Issuance of a Writ of Execution,12 petitioner asserted
that none of the expenses deducted by respondent may be chargeable as part of the monthly
support contemplated by the CA in CA-G.R. SP No. 84740.
On September 27, 2005, the trial court issued an Order13 granting petitioner’s motion for issuance of
a writ of execution as it rejected respondent’s interpretation of the CA decision. Respondent filed a
motion for reconsideration and subsequently also filed a motion for inhibition of Judge Raphael B.
Yrastorza, Sr. On November 25, 2005, Judge Yrastorza, Sr. issued an Order14 denying both motions.

WHEREFORE, in view of the foregoing premises, both motions are DENIED. Since a second motion
for reconsideration is prohibited under the Rules, this denial has attained finality; let, therefore, a writ
of execution be issued in favor of plaintiff as against defendant for the accumulated support in
arrears pendente lite.

Notify both parties of this Order.

SO ORDERED.15

Since respondent still failed and refused to pay the support in arrears pendente lite, petitioner filed in
the CA a Petition for Contempt of Court with Damages, docketed as CA-G.R. SP No. 01154 ("Susan
Lim Lua versus Danilo Y. Lua"). Respondent, on the other hand, filed CA-G.R. SP No. 01315, a
Petition for Certiorari under Rule 65 of the Rules of Court ("Danilo Y. Lua versus Hon. Raphael B.
Yrastorza, Sr., in his capacity as Presiding Judge of Regional Trial Court of Cebu, Branch 14, and
Susan Lim Lua"). The two cases were consolidated.

By Decision dated April 20, 2006, the CA set aside the assailed orders of the trial court, as follows:

WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages
filed by Susan Lim Lua against Danilo Y. Lua with docket no. SP. CA-GR No. 01154;

b) GRANTING Danilo Y. Lua’s Petition for Certiorari docketed as SP. CA-GR No. 01315.
Consequently, the assailed Orders dated 27 September 2005 and 25 November 2005 of the
Regional Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346 entitled
"Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE, and instead
a new one is entered:

i. ORDERING the deduction of the amount of Ph₱2,482,348.16 plus 946,465.64, or a

total of PhP3,428,813.80 from the current total support in arrears of Danilo Y. Lua to
his wife, Susan Lim Lua and their two (2) children;

ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of

Ph₱115,000.00 pesos starting from the time payment of this amount was deferred by
him subject to the deductions aforementioned.

iii. DIRECTING the issuance of a permanent writ of preliminary injunction.

SO ORDERED.16

The appellate court said that the trial court should not have completely disregarded the expenses
incurred by respondent consisting of the purchase and maintenance of the two cars, payment of
tuition fees, travel expenses, and the credit card purchases involving groceries, dry goods and
books, which certainly inured to the benefit not only of the two children, but their mother (petitioner)
as well. It held that respondent’s act of deferring the monthly support adjudged in CA-G.R. SP No.
84740 was not contumacious as it was anchored on valid and justifiable reasons. Respondent said
he just wanted the issue of whether to deduct his advances be settled first in view of the different
interpretation by the trial court of the appellate court’s decision in CA-G.R. SP No. 84740. It also
noted the lack of contribution from the petitioner in the joint obligation of spouses to support their
children.

Petitioner filed a motion for reconsideration but it was denied by the CA.

Hence, this petition raising the following errors allegedly committed by the CA:

I.

THE HONORABLE COURT ERRED IN NOT FINDING RESPONDENT GUILTY OF

INDIRECT CONTEMPT.

II.

THE HONORABLE COURT ERRED IN ORDERING THE DEDUCTION OF THE AMOUNT

OF PH₱2,482,348.16 PLUS 946,465.64, OR A TOTAL OF PH₱3,428,813.80 FROM THE
CURRENT TOTAL SUPPORT IN ARREARS OF THE RESPONDENT TO THE
PETITIONER AND THEIR CHILDREN.17

The main issue is whether certain expenses already incurred by the respondent may be deducted
from the total support in arrears owing to petitioner and her children pursuant to the Decision dated
April 12, 2005 in CA-G.R. SP No. 84740.

The pertinent provision of the Family Code of the Philippines provides:

Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place of
work. (Emphasis supplied.)

Petitioner argues that it was patently erroneous for the CA to have allowed the deduction of the
value of the two cars and their maintenance costs from the support in arrears, as these items are not
indispensable to the sustenance of the family or in keeping them alive. She points out that in the
Decision in CA-G.R. SP No. 84740, the CA already considered the said items which it deemed
chargeable to respondent, while the monthly support pendente lite (₱115,000.00) was fixed on the
basis of the documentary evidence of respondent’s alleged income from various businesses and
petitioner’s testimony that she needed ₱113,000.00 for the maintenance of the household and other
miscellaneous expenses excluding the ₱135,000.00 medical attendance expenses of petitioner.

Respondent, on the other hand, contends that disallowing the subject deductions would result in
unjust enrichment, thus making him pay for the same obligation twice. Since petitioner and the
children resided in one residence, the groceries and dry goods purchased by the children using
respondent’s credit card, totalling ₱594,151.58 for the period September 2003 to June 2005 were
not consumed by the children alone but shared with their mother. As to the Volkswagen Beetle and
BMW 316i respondent bought for his daughter Angelli Suzanne Lua and Daniel Ryan Lua,
respectively, these, too, are to be considered advances for support, in keeping with the financial
capacity of the family. Respondent stressed that being children of parents belonging to the upper-
class society, Angelli and Daniel Ryan had never in their entire life commuted from one place to
another, nor do they eat their meals at "carinderias". Hence, the cars and their maintenance are
indispensable to the children’s day-to-day living, the value of which were properly deducted from the
arrearages in support pendente lite ordered by the trial and appellate courts.

As a matter of law, the amount of support which those related by marriage and family relationship is
generally obliged to give each other shall be in proportion to the resources or means of the giver and
to the needs of the recipient.18 Such support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in keeping with the financial
capacity of the family.

Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment
of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu
proprio or upon verified application of any of the parties, guardian or designated custodian, may
temporarily grant support pendente lite prior to the rendition of judgment or final order.19 Because of
its provisional nature, a court does not need to delve fully into the merits of the case before it can
settle an application for this relief. All that a court is tasked to do is determine the kind and amount of
evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be
established by affidavits or other documentary evidence appearing in the record.20

In this case, the amount of monthly support pendente lite for petitioner and her two children was
determined after due hearing and submission of documentary evidence by the parties. Although the
amount fixed by the trial court was reduced on appeal, it is clear that the monthly support pendente
lite of ₱115,000.00 ordered by the CA was intended primarily for the sustenance of petitioner and
her children, e.g., food, clothing, salaries of drivers and house helpers, and other household
expenses. Petitioner’s testimony also mentioned the cost of regular therapy for her scoliosis and
vitamins/medicines.

ATTY. ZOSA:

xxxx

Q How much do you spend for your food and your two (2) children every month?

A Presently, Sir?

ATTY. ZOSA:

Yes.

A For the food alone, I spend not over ₱40,000.00 to ₱50,000.00 a month for the food alone.

xxxx

ATTY. ZOSA:

Q What other expenses do you incur in living in that place?

A The normal household and the normal expenses for a family to have a decent living, Sir.
Q How much other expenses do you incur?

WITNESS:

A For other expenses, is around over a ₱100,000.00, Sir.

Q Why do you incur that much amount?

A For the clothing for the three (3) of us, for the vitamins and medicines. And also I am having a
special therapy to straighten my back because I am scoliotic. I am advised by the Doctor to hire a
driver, but I cannot still afford it now. Because my eyesight is not reliable for driving. And I still need
another househelp to accompany me whenever I go marketing because for my age, I cannot carry
anymore heavy loads.

xxxx

ATTY. FLORES:

xxxx

Q On the issue of the food for you and the two (2) children, you mentioned ₱40,000.00 to
₱50,000.00?

A Yes, for the food alone.

Q Okay, what other possible expenses that you would like to include in those two (2) items? You
mentioned of a driver, am I correct?

A Yes, I might need two (2) drivers, Sir for me and my children.

Q Okay. How much would you like possibly to pay for those two (2) drivers?

A I think ₱10,000.00 a month for one (1) driver. So I need two (2) drivers. And I need another
househelp.

Q You need another househelp. The househelp nowadays would charge you something between
₱3,000.00 to ₱4,000.00. That’s quite…

A Right now, my househelp is receiving ₱8,000.00. I need another which I will give a compensation
of ₱5,000.00.

Q Other than that, do you still have other expenses?

A My clothing.

COURT:

How about the schooling for your children?

WITNESS:
A The schooling is shouldered by my husband, Your Honor.

COURT:

Everything?

A Yes, Your Honor.

xxxx

ATTY. FLORES:

Q Madam witness, let us talk of the present needs. x x x. What else, what specific need that you
would like to add so I can tell my client, the defendant.

WITNESS:

A I need to have an operation both of my eyes. I also need a special therapy for my back because I
am scoliotic, three (3) times a week.

Q That is very reasonable. [W]ould you care to please repeat that?

A Therapy for my scoliotic back and then also for the operation both of my eyes. And I am also
taking some vitamins from excel that will cost ₱20,000.00 a month.

Q Okay. Let’s have piece by piece. Have you asked the Doctor how much would it cost you for the
operation of that scoliotic?

A Yes before because I was already due last year. Before, this eye will cost ₱60,000.00 and the
other eyes ₱75,000.00.

Q So for both eyes, you are talking of ₱60,000.00 plus ₱75,000.00 is ₱135,000.00?

A Yes.

xxxx

Q You talk of therapy?

A Yes.

Q So how much is that?

A Around ₱5,000.00 a week.21

As to the financial capacity of the respondent, it is beyond doubt that he can solely provide for the
subsistence, education, transportation, health/medical needs and recreational activities of his
children, as well as those of petitioner who was then unemployed and a full-time housewife. Despite
this, respondent’s counsel manifested during the same hearing that respondent was willing to grant
the amount of only ₱75,000.00 as monthly support pendente lite both for the children and petitioner
as spousal support. Though the receipts of expenses submitted in court unmistakably show how
much respondent lavished on his children, it appears that the matter of spousal support was a
different matter altogether. Rejecting petitioner’s prayer for ₱500,000.00 monthly support and finding
the ₱75,000.00 monthly support offered by respondent as insufficient, the trial court fixed the
monthly support pendente lite at ₱250,000.00. However, since the supposed income in millions of
respondent was based merely on the allegations of petitioner in her complaint and registration
documents of various corporations which respondent insisted are owned not by him but his parents
and siblings, the CA reduced the amount of support pendente lite to ₱115,000.00, which ruling was
no longer questioned by both parties.

Controversy between the parties resurfaced when respondent’s compliance with the final CA
decision indicated that he deducted from the total amount in arrears (₱2,645,000.00) the sum of
₱2,482,348.16, representing the value of the two cars for the children, their cost of maintenance and
advances given to petitioner and his children. Respondent explained that the deductions were made
consistent with the fallo of the CA Decision in CA-G.R. SP No. 84740 ordering him to pay support
pendente lite in arrears less the amount supposedly given by him to petitioner as her and their two
children’s monthly support.

The following is a summary of the subject deductions under Compliance dated June 28, 2005, duly
supported by receipts22:

Car purchases for Angelli Suzanne - Php1,350,000.00

and Daniel Ryan - 613,472.86
Car Maintenance fees of Angelli - 51,232.50
Suzanne
Credit card statements of Daniel Ryan - 348,682.28
Car Maintenance fees of Daniel Ryan - 118,960.52

Php2,482,348.16

After the trial court disallowed the foregoing deductions, respondent filed a motion for
reconsideration further asserting that the following amounts, likewise with supporting receipts, be
considered as additional advances given to petitioner and the children23:

Medical expenses of Susan Lim-Lua Php 42,450.71

Dental Expenses of Daniel Ryan 11,500.00
Travel expenses of Susan Lim-Lua 14,611.15
Credit card purchases of Angelli 408,891.08
Suzanne
Salon and travel expenses of Angelli 87,112.70
Suzanne
School expenses of Daniel Ryan Lua 260,900.00
Cash given to Daniel and Angelli 121,000.00

TOTAL - Php 946,465.64

 GRAND TOTAL - Php 3,428,813.80

The CA, in ruling for the respondent said that all the foregoing expenses already incurred by the
respondent should, in equity, be considered advances which may be properly deducted from the
support in arrears due to the petitioner and the two children. Said court also noted the absence of
petitioner’s contribution to the joint obligation of support for their children.

We reverse in part the decision of the CA.

Judicial determination of support pendente lite in cases of legal separation and petitions for
declaration of nullity or annulment of marriage are guided by the following provisions of the Rule on
Provisional Orders24

Sec. 2. Spousal Support.–In determining support for the spouses, the court may be guided by the
following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the
spouses may be supported from the properties of the absolute community or the conjugal
partnership.

(b) The court may award support to either spouse in such amount and for such period of time
as the court may deem just and reasonable based on their standard of living during the
marriage.

(c) The court may likewise consider the following factors: (1) whether the spouse seeking
support is the custodian of a child whose circumstances make it appropriate for that spouse
not to seek outside employment; (2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find appropriate employment, and that
spouse’s future earning capacity; (3) the duration of the marriage; (4) the comparative
financial resources of the spouses, including their comparative earning abilities in the labor
market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to
the marriage, including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical and
emotional conditions of the spouses; (9) the ability of the supporting spouse to give support,
taking into account that spouse’s earning capacity, earned and unearned income, assets,
and standard of living; and (10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of
the spouse.

Sec. 3. Child Support.–The common children of the spouses shall be supported from the properties
of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an amount
necessary for the support, maintenance, and education of the child. It shall be in proportion to the
resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the child;
(2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the
standard of living the child has been accustomed to; (4) the non-monetary contributions that the
parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the salary of the parent.

Since the amount of monthly support pendente lite as fixed by the CA was not appealed by either
party, there is no controversy as to its sufficiency and reasonableness. The dispute concerns the
deductions made by respondent in settling the support in arrears.

On the issue of crediting of money payments or expenses against accrued support, we find as
relevant the following rulings by US courts.

In Bradford v. Futrell,25 appellant sought review of the decision of the Circuit Court which found him
in arrears with his child support payments and entered a decree in favor of appellee wife. He
complained that in determining the arrearage figure, he should have been allowed full credit for all
money and items of personal property given by him to the children themselves, even though he
referred to them as gifts. The Court of Appeals of Maryland ruled that in the suit to determine amount
of arrears due the divorced wife under decree for support of minor children, the husband (appellant)
was not entitled to credit for checks which he had clearly designated as gifts, nor was he entitled to
credit for an automobile given to the oldest son or a television set given to the children. Thus, if the
children remain in the custody of the mother, the father is not entitled to credit for money paid
directly to the children if such was paid without any relation to the decree.

In the absence of some finding of consent by the mother, most courts refuse to allow a husband to
dictate how he will meet the requirements for support payments when the mode of payment is fixed
by a decree of court. Thus he will not be credited for payments made when he unnecessarily
interposed himself as a volunteer and made payments direct to the children of his own accord. Wills
v. Baker, 214 S. W. 2d 748 (Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah 1935). In the
latter case the court said in part: "The payments to the children themselves do not appear to have
been made as payments upon alimony, but were rather the result of his fatherly interest in the
welfare of those children. We do not believe he should be permitted to charge them to plaintiff. By so
doing he would be determining for Mrs. Openshaw the manner in which she should expend her
allowances. It is a very easy thing for children to say their mother will not give them money,
especially as they may realize that such a plea is effective in attaining their ends. If she is not
treating them right the courts are open to the father for redress."26

In Martin, Jr. v. Martin,27 the Supreme Court of Washington held that a father, who is required by a
divorce decree to make child support payments directly to the mother, cannot claim credit for
payments voluntarily made directly to the children. However, special considerations of an equitable
nature may justify a court in crediting such payments on his indebtedness to the mother, when such
can be done without injustice to her.

The general rule is to the effect that when a father is required by a divorce decree to pay to the
mother money for the support of their dependent children and the unpaid and accrued installments
become judgments in her favor, he cannot, as a matter of law, claim credit on account of payments
voluntarily made directly to the children. Koon v. Koon, supra; Briggs v. Briggs, supra. However,
special considerations of an equitable nature may justify a court in crediting such payments on his
indebtedness to the mother, when that can be done without injustice to her. Briggs v. Briggs, supra.
The courts are justifiably reluctant to lay down any general rules as to when such credits may be
allowed.28 (Emphasis supplied.)
Here, the CA should not have allowed all the expenses incurred by respondent to be credited
against the accrued support pendente lite. As earlier mentioned, the monthly support pendente lite
granted by the trial court was intended primarily for food, household expenses such as salaries of
drivers and house helpers, and also petitioner’s scoliosis therapy sessions. Hence, the value of two
expensive cars bought by respondent for his children plus their maintenance cost, travel expenses of
petitioner and Angelli, purchases through credit card of items other than groceries and dry goods
(clothing) should have been disallowed, as these bear no relation to the judgment awarding support
pendente lite. While it is true that the dispositive portion of the executory decision in CA-G.R. SP No.
84740 ordered herein respondent to pay the support in arrears "less than the amount supposedly
given by petitioner to the private respondent as her and their two (2) children monthly support," the
deductions should be limited to those basic needs and expenses considered by the trial and
appellate courts. The assailed ruling of the CA allowing huge deductions from the accrued monthly
support of petitioner and her children, while correct insofar as it commends the generosity of the
respondent to his children, is clearly inconsistent with the executory decision in CA-G.R. SP No.
84740. More important, it completely ignores the unfair consequences to petitioner whose
sustenance and well-being, was given due regard by the trial and appellate courts. This is evident
from the March 31, 2004 Order granting support pendente lite to petitioner and her children, when
the trial court observed:

While there is evidence to the effect that defendant is giving some forms of financial assistance to
his two (2) children via their credit cards and paying for their school expenses, the same is, however,
devoid of any form of spousal support to the plaintiff, for, at this point in time, while the action for
nullity of marriage is still to be heard, it is incumbent upon the defendant, considering the physical
and financial condition of the plaintiff and the overwhelming capacity of defendant, to extend support
unto the latter. x x x29

On appeal, while the Decision in CA-G.R. SP No. 84740 reduced the amount of monthly support
fixed by the trial court, it nevertheless held that considering respondent’s financial resources, it is but
fair and just that he give a monthly support for the sustenance and basic necessities of petitioner
and his children. This would imply that any amount respondent seeks to be credited as monthly
support should only cover those incurred for sustenance and household expenses. 1avv phi 1

In the case at bar, records clearly show and in fact has been admitted by petitioner that aside from
paying the expenses of their two (2) children’s schooling, he gave his two (2) children two (2) cars
and credit cards of which the expenses for various items namely: clothes, grocery items and repairs
of their cars were chargeable to him which totaled an amount of more than One Hundred Thousand
(₱100,000.00) for each of them and considering that as testified by the private respondent that she
needs the total amount of ₱113,000.00 for the maintenance of the household and other
miscellaneous expenses and considering further that petitioner can afford to buy cars for his two (2)
children, and to pay the expenses incurred by them which are chargeable to him through the credit
cards he provided them in the amount of ₱100,000.00 each, it is but fair and just that the monthly
support pendente lite for his wife, herein private respondent, be fixed as of the present in the amount
of ₱115,000.00 which would be sufficient enough to take care of the household and other needs.
This monthly support pendente lite to private respondent in the amount of ₱115,000.00 excludes the
amount of One Hundred ThirtyFive (₱135,000.00) Thousand Pesos for medical attendance
expenses needed by private respondent for the operation of both her eyes which is demandable
upon the conduct of such operation. Likewise, this monthly support of ₱115,000.00 is without
prejudice to any increase or decrease thereof that the trial court may grant private respondent as the
circumstances may warrant i.e. depending on the proof submitted by the parties during the
proceedings for the main action for support.
The amounts already extended to the two (2) children, being a commendable act of petitioner,
should be continued by him considering the vast financial resources at his disposal.30 (Emphasis
supplied.)

Accordingly, only the following expenses of respondent may be allowed as deductions from the
accrued support pendente lite for petitioner and her children:
1âw phi1

Medical expenses of Susan Lim-Lua Php 42,450.71

Dental Expenses of Daniel Ryan 11,500.00
Credit card purchases of Angelli 365,282.20
(Groceries and Dry Goods) 228,869.38
Credit Card purchases of Daniel Ryan
TOTAL Php 648,102.29

As to the contempt charge, we sustain the CA in holding that respondent is not guilty of indirect
contempt.

Contempt of court is defined as a disobedience to the court by acting in opposition to its authority,
justice, and dignity. It signifies not only a willful disregard or disobedience of the court’s order, but
such conduct which tends to bring the authority of the court and the administration of law into
disrepute or, in some manner, to impede the due administration of justice.31 To constitute contempt,
the act must be done willfully and for an illegitimate or improper purpose.32 The good faith, or lack of
it, of the alleged contemnor should be considered.33

Respondent admittedly ceased or suspended the giving of monthly support pendente lite granted by
the trial court, which is immediately executory. However, we agree with the CA that respondent’s act
was not contumacious considering that he had not been remiss in actually providing for the needs of
his children. It is a matter of record that respondent continued shouldering the full cost of their
education and even beyond their basic necessities in keeping with the family’s social status.
Moreover, respondent believed in good faith that the trial and appellate courts, upon equitable
grounds, would allow him to offset the substantial amounts he had spent or paid directly to his
children.

Respondent complains that petitioner is very much capacitated to generate income on her own
because she presently maintains a boutique at the Ayala Center Mall in Cebu City and at the same
time engages in the business of lending money. He also claims that the two children have finished
their education and are now employed in the family business earning their own salaries.

Suffice it to state that the matter of increase or reduction of support should be submitted to the trial
court in which the action for declaration for nullity of marriage was filed, as this Court is not a trier of
facts. The amount of support may be reduced or increased proportionately according to the
reduction or increase of the necessities of the recipient and the resources or means of the person
obliged to support.34 As we held in Advincula v. Advincula35

…Judgment for support does not become final. The right to support is of such nature that its
allowance is essentially provisional; for during the entire period that a needy party is entitled to
support, his or her alimony may be modified or altered, in accordance with his increased or
decreased needs, and with the means of the giver. It cannot be regarded as subject to final
determination.36
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated April 20, 2006 of the Court of
Appeals in CA-G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read as follows:

"WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages
filed by Susan Lim Lua against Danilo Y. Lua with docket no. SP. CA-G.R. No. 01154;

b) GRANTING IN PART Danilo Y. Lua's Petition for Certiorari docketed as SP. CA-G.R. No.
01315. Consequently, the assailed Orders dated 27 September 2005 and 25 November
2005 of the Regional Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346
entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE, and
instead a new one is entered:

i. ORDERING the deduction of the amount of Php 648,102.29 from the support
pendente lite in arrears of Danilo Y. Lua to his wife, Susan Lim Lua and their two (2)
children;

ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of

Ph₱115,000.00 pesos starting from the time payment of this amount was deferred by
him subject to the deduction aforementioned.

iii. DIRECTING the immediate execution of this judgment.

SO ORDERED."

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:
G.R. No. 125041 June 30, 2006

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA
DELGADO and REGINA ISABEL DELGADO. Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge,
RTC-Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C.
DELGADO, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated
20 March 1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court (RTC),
Branch 149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel
(Rina), both surnamed Delgado.

The generative facts leading to the filing of the present petition are as follows:

On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica
and Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente
lite with the RTC Makati.3 In said petition, it was alleged that on 16 February 1975, petitioner and
respondent Federico Delgado were civilly married by then City Court Judge Eleuterio Agudo in
Legaspi City, Albay. At that time, petitioner was only 21 years old while respondent Federico was
only 19 years old. As the marriage was solemnized without the required consent per Article 85 of the
New Civil Code,4 it was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic
Relations Court.5

On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave
birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second husband
Danny Mangonon, raised her twin daughters as private respondents had totally abandoned them. At
the time of the institution of the petition, Rica and Rina were about to enter college in the United
States of America (USA) where petitioner, together with her daughters and second husband, had
moved to and finally settled in. Rica was admitted to the University of Massachusetts (Amherst)
while Rina was accepted by the Long Island University and Western New England College. Despite
their admissions to said universities, Rica and Rina were, however, financially incapable of pursuing
collegiate education because of the following:

i) The average annual cost for college education in the US is about US$22,000/year, broken
down as follows:

Tuition Fees US$13,000.00

Room & Board 5,000.00

Books 1,000.00

Yearly Transportation &

Meal Allowance 3,000.00

 Total US$ 22,000.00

or a total of US$44,000.00, more or less, for both Rica and Rina

ii) Additionally, Rica and Rina need general maintenance support each in the amount of
US$3,000.00 per year or a total of US$6,000 per year.

iii) Unfortunately, petitioner’s monthly income from her 2 jobs is merely US$1,200 after taxes
which she can hardly give general support to Rica and Rina, much less their required college
educational support.

iv) Neither can petitioner’s present husband be compelled to share in the general support
and college education of Rica and Rina since he has his own son with petitioner and own
daughter (also in college) to attend to.

v) Worse, Rica and Rina’s petitions for Federal Student Aid have been rejected by the U.S.
Department of Education.6

Petitioner likewise averred that demands7 were made upon Federico and the latter’s father,
Francisco,8 for general support and for the payment of the required college education of Rica and
Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with
respondent Federico and respondent Francisco, the latter being generally known to be financially
well-off.9 These demands, however, remained unheeded. Considering the impending deadline for
admission to college and the opening of classes, petitioner and her then minor children had no
choice but to file the petition before the trial court.

Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since
the twin sisters were born within seven months from the date of the annulment of her marriage to
respondent Federico. However, as respondent Federico failed to sign the birth certificates of Rica
and Rina, it was imperative that their status as legitimate children of respondent Federico, and as
granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of the Family
Code.10

As legitimate children and grandchildren, Rica and Rina are entitled to general and educational
support under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the
Family Code. Petitioner alleged that under these provisions, in case of default on the part of the
parents, the obligation to provide support falls upon the grandparents of the children; thus,
respondent Federico, or in his default, respondent Francisco should be ordered to provide general
and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year.

Petitioner also claimed that she was constrained to seek support pendente lite from private
respondents - who are millionaires with extensive assets both here and abroad - in view of the
imminent opening of classes, the possibility of a protracted litigation, and Rica and Rina’s lack of
financial means to pursue their college education in the USA.

In his Answer,15 respondent Francisco stated that as the birth certificates of Rica and Rina do not
bear the signature of respondent Federico, it is essential that their legitimacy be first established as
"there is no basis to claim support until a final and executory judicial declaration has been made as
to the civil status of the children."16 Whatever good deeds he may have done to Rica and Rina,
according to respondent Francisco, was founded on pure acts of Christian charity. He, likewise,
averred that the order of liability for support under Article 199 of the Family Code is not concurrent
such that the obligation must be borne by those more closely related to the recipient. In this case, he
maintained that responsibility should rest on the shoulders of petitioner and her second husband, the
latter having voluntarily assumed the duties and responsibilities of a natural father. Even assuming
that he is responsible for support, respondent Francisco contends that he could not be made to
answer beyond what petitioner and the father could afford.

On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in
Default.17 This was favorably acted upon by the trial court in the Order dated 16 June 1994.18

On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the
summons and a copy of the petition were not served in his correct address.19 Attached thereto was
his Answer20 where he claimed that petitioner had no cause of action against him. According to him,
he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of
the three hundred days immediately preceding March 25, 1976" and that he only came to know
about the birth of Rica and Rina when the twins introduced themselves to him seventeen years later.
In order not to antagonize the two, respondent Federico claimed he did not tell them that he could
not be their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he
could not give them the support they were demanding as he was only making P40,000.00 a month.

Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its Order
dated 16 June 1994 and admitted his Answer.21

In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support
Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial resources
for their education.22 This Motion was opposed by respondent Francisco.23 After both parties
submitted supplemental pleadings to bolster their respective positions, the trial court resolved the
motion in an Order dated 12 September 1995 in this wise:

WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to
provide a monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel Delgado to be delivered within the first five days of
each month without need of demand.24

Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via
Petition for Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the
petition in the following manner:

WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court
dated September 12, 1995 is hereby AFFIRMED.25

Petitioner’s Motion for Reconsideration was denied through the Resolution of the Court of Appeals
dated 16 May 1996.26

Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted
with the following errors:

RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE

DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY
SUPPORT PENDENTE LITE GRANTED TO PETITIONER’S CHILDREN AT A
MEASLEY P5,000.00 PER CHILD.

I.
RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY
OF RICA AND RINA’S PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT
DEVOLVES ON THE GRANDFATHER.

II.

IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT – GRANDFATHER

DON PACO – IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED,
RESPONDENT COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH
GRAVE ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT
IS OBVIOUSLY INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE
RECIPIENTS.27

At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers
University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was
able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US
government in the amount of US$2,615.00.28 In order to defray the remaining balance of Rica’s
education for said school year, petitioner claims that she had to secure a loan under the Federal
Direct Student Loan Program.

Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend
US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00,
federal work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00.29 Again,
petitioner obtained a loan to cover the remainder of Rina’s school budget for the year.

Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be
first imposed upon their parents. She contends, however, that the records of this case demonstrate
her as well as respondent Federico’s inability to give the support needed for Rica and Rina’s college
education. Consequently, the obligation to provide support devolves upon respondent Francisco
being the grandfather of Rica and Rina.

Petitioner also maintains that as respondent Francisco has the financial resources to help defray the
cost of Rica and Rina’s schooling, the Court of Appeals then erred in sustaining the trial court’s
Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00 each as
monthly support pendente lite.

On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner
and respondent Federico should be the ones to provide the support needed by their twin daughters
pursuant to Article 199 of the Family Code. He also maintains that aside from the financial package
availed of by Rica and Rina in the form of state tuition aid grant, work study program and federal
student loan program, petitioner herself was eligible for, and had availed herself of, the federal
parent loan program based on her income and properties in the USA. He, likewise, insists that
assuming he could be held liable for support, he has the option to fulfill the obligation either by
paying the support or receiving and maintaining in the dwelling here in the Philippines the person
claiming support.30 As an additional point to be considered by this Court, he posits the argument that
because petitioner and her twin daughters are now US citizens, they cannot invoke the Family Code
provisions on support as "[l]aws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though living abroad."31

Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating the
grounds he had previously raised before the trial court. Like his father, respondent Federico argues
that assuming he is indeed the father of the twin sisters, he has the option under the law as to how
he would provide support. Lastly, he assents with the declaration of the trial court and the Court of
Appeals that the parents of a child should primarily bear the burden of providing support to their
offspring.

The petition is meritorious.

As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente
lite. The pertinent portion of the Rules of Court on the matter provides:

Rule 61
SUPPORT ‘PENDENTE LITE’

SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time
prior to the judgment or final order, a verified application for support pendente lite may be filed by
any party stating the grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in support thereof.

xxxx

SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such
orders as justice and equity may require, having due regard to the probable outcome of the case and
such other circumstances as may aid in the proper resolution of the question involved. If the
application is granted, the court shall fix the amount of money to be provisionally paid or such other
forms of support as should be provided, taking into account the necessities of the applicant and the
resources or means of the adverse party, and the terms of payment or mode for providing the
support. If the application is denied, the principal case shall be tried and decided as early as
possible.

Under this provision, a court may temporarily grant support pendente lite prior to the rendition of
judgment or final order. Because of its provisional nature, a court does not need to delve fully into
the merits of the case before it can settle an application for this relief. All that a court is tasked to do
is determine the kind and amount of evidence which may suffice to enable it to justly resolve the
application. It is enough that the facts be established by affidavits or other documentary evidence
appearing in the record.32 lavvphi1.net

After the hearings conducted on this matter as well as the evidence presented, we find that petitioner
was able to establish, by prima facie proof, the filiation of her twin daughters to private respondents
and the twins’ entitlement to support pendente lite. In the words of the trial court –

By and large, the status of the twins as children of Federico cannot be denied. They had maintained
constant communication with their grandfather Francisco. As a matter of fact, respondent Francisco
admitted having wrote several letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30). In
the said letters, particularly at the bottom thereof, respondent Francisco wrote the names of Rica
and Rina Delgado. He therefore was very well aware that they bear the surname Delgado. Likewise,
he referred to himself in his letters as either "Lolo Paco" or "Daddy Paco." In his letter of October 13,
1989 (Exh. G-21), he said "as the grandfather, am extending a financial help of US$1,000.00." On
top of this, respondent Federico even gave the twins a treat to Hongkong during their visit to the
Philippines. Indeed, respondents, by their actuations, have shown beyond doubt that the twins are
the children of Federico.33

Having addressed the issue of the propriety of the trial court’s grant of support pendente lite in favor
of Rica and Rina, the next question is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:

ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters.

An eminent author on the subject explains that the obligation to give support rests principally on
those more closely related to the recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those who are called upon to provide
support do not have the means to do so.34

In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide
monthly support pendente lite in the total amount of P10,000.00 by taking into consideration his
supposed income of P30,000.00 to P40,000.00 per month. We are, however, unconvinced as to the
veracity of this ground relied upon by the trial court and the Court of Appeals.

It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for
review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent
application where the Court of Appeals upholds the findings of fact of the trial court; in such a
situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by the
appellate and the lower courts. This rule, however, is not ironclad as it admits of the following
recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the
findings are conclusions without citation of specific evidence on which they are based; (9) when the
facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by
the respondent; (10) when the findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would
justify a different conclusion."35 The case at bar falls within the seventh and eleventh exceptions.

The trial court gave full credence to respondent Federico’s allegation in his Answer36 and his
testimony37 as to the amount of his income. We have, however, reviewed the records of this case
and found them bereft of evidence to support his assertions regarding his employment and his
earning. Notably, he was even required by petitioner’s counsel to present to the court his income tax
return and yet the records of this case do not bear a copy of said document.38 This, to our mind,
severely undermines the truthfulness of respondent Federico’s assertion with respect to his financial
status and capacity to provide support to Rica and Rina.

In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his son,
respondent Federico did not own anything –
"Atty. Lopez:

I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19,
1991 addressed to Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you
remember."

xxxx

WITNESS:

A: I do remember this letter because it really irritated me so much that I threw it away in a waste
basket. It is a very demanding letter, that is what I do not like at all.

ATTY. LOPEZ:

Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for
reasons we both are aware of." Do you know what reason that is?

A: Yes. The reason is that my son do not have fix employment and do not have fix salary and
income and they want to depend on the lolo.

xxxx lavvphi 1.net

Q: Would you have any knowledge if Federico owns a house and lot?

A: Not that I know. I do not think he has anything.

Q: How about a car?

A: Well, his car is owned by my company.39

Respondent Federico himself admitted in court that he had no property of his own, thus:

Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified
that this building belongs to Citadel Corporation. Do you confirm that?

A: Yes, sir.

Q: What car are you driving, Mr. Witness?

A: I am driving a lancer, sir.

Q: What car, that registered in the name of the corporation?

A: In the corporation, sir.

Q: What corporation is that?

A: Citadel Commercial, Inc., sir.

Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness?

A: None, sir."40 (Emphasis supplied.)

Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to
her twin daughters as she has gainful employment in the USA. He even went as far as to state that
petitioner’s income abroad, when converted to Philippine peso, was much higher than that received
by a trial court judge here in the Philippines. In addition, he claims that as she qualified for the
federal parent loan program, she could very well support the college studies of her daughters.

We are unconvinced. Respondent Francisco’s assertion that petitioner had the means to support her
daughters’ education is belied by the fact that petitioner was even forced by her financial status in
the USA to secure the loan from the federal government. If petitioner were really making enough
money abroad, she certainly would not have felt the need to apply for said loan. The fact that
petitioner was compelled to take out a loan is enough indication that she did not have enough money
to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves
were forced by the circumstances they found themselves in to secure loans under their names so as
not to delay their entrance to college.

There being prima facie evidence showing that petitioner and respondent Federico are the parents
of Rica and Rina, petitioner and respondent Federico are primarily charged to support their
children’s college education. In view however of their incapacities, the obligation to furnish said
support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent
Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his
granddaughters in default of their parents. It bears stressing that respondent Francisco is the
majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated,
which owns and manages twelve gasoline stations, substantial real estate, and is engaged in
shipping, brokerage and freight forwarding. He is also the majority stockholder and Chairman of the
Board of Directors of Citadel Shipping which does business with Hyundai of Korea. Apart from these,
he also owns the Citadel Corporation which, in turn, owns real properties in different parts of the
country. He is likewise the Chairman of the Board of Directors of Isla Communication Co. and he
owns shares of stocks of Citadel Holdings. In addition, he owns real properties here and abroad.41 It
having been established that respondent Francisco has the financial means to support his
granddaughters’ education, he, in lieu of petitioner and respondent Federico, should be held liable
for support pendente lite.

Anent respondent Francisco and Federico’s claim that they have the option under the law as to how
they could perform their obligation to support Rica and Rina, respondent Francisco insists that Rica
and Rina should move here to the Philippines to study in any of the local universities. After all, the
quality of education here, according to him, is at par with that offered in the USA. The applicable
provision of the Family Code on this subject provides:

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by
paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who
has a right to receive support. The latter alternative cannot be availed of in case there is a moral or
legal obstacle thereto.

Under the abovecited provision, the obligor is given the choice as to how he could dispense his
obligation to give support. Thus, he may give the determined amount of support to the claimant or he
may allow the latter to stay in the family dwelling. The second option cannot be availed of in case
there are circumstances, legal or moral, which should be considered.
In this case, this Court believes that respondent Francisco could not avail himself of the second
option. From the records, we gleaned that prior to the commencement of this action, the relationship
between respondent Francisco, on one hand, and petitioner and her twin daughters, on the other,
was indeed quite pleasant. The correspondences exchanged among them expressed profound
feelings of thoughtfulness and concern for one another’s well-being. The photographs presented by
petitioner as part of her exhibits presented a seemingly typical family celebrating kinship. All of
these, however, are now things of the past. With the filing of this case, and the allegations hurled at
one another by the parties, the relationships among the parties had certainly been affected.
Particularly difficult for Rica and Rina must be the fact that those who they had considered and
claimed as family denied having any familial relationship with them. Given all these, we could not
see Rica and Rina moving back here in the Philippines in the company of those who have disowned
them.

Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law
mandating the amount of support to be proportionate to the resources or means of the giver and to
the necessities of the recipient.42 Guided by this principle, we hold respondent Francisco liable for
half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As
established by petitioner, respondent Francisco has the financial resources to pay this amount given
his various business endeavors.

Considering, however, that the twin sisters may have already been done with their education by the
time of the promulgation of this decision, we deem it proper to award support pendente lite in
arrears43 to be computed from the time they entered college until they had finished their respective
studies.

The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters
raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it
would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then
order the return of the amounts already paid with legal interest from the dates of actual payment.44

WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the
Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated
12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of support
pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in that
respondent Francisco Delgado is hereby held liable for support pendente lite in the amount to be
determined by the trial court pursuant to this Decision. Let the records of this case be remanded to
the trial court for the determination of the proper amount of support pendente lite for Rebecca
Angela and Regina Isabel as well as the arrearages due them in accordance with this Decision
within ten (10) days from receipt hereof. Concomitantly, the trial court is directed to proceed with the
trial of the main case and the immediate resolution of the same with deliberate dispatch. The RTC
Judge, Branch 149, Makati, is further directed to submit a report of his compliance with the directive
regarding the support pendente lite within ten (10) days from compliance thereof.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
G.R. No. 104818 September 17, 1993

ROBERTO DOMINGO, petitioner,

vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact
MOISES R. AVERA, respondents.

Jose P.O. Aliling IV for petitioner.

De Guzman, Meneses & Associates for private respondent.

ROMERO, J.:

The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of
discretion in the lower court's order denying petitioner's motion to dismiss the petition for declaration
of nullity of marriage and separation of property.

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional
Trial Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against
petitioner Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J
alleged among others that: they were married on November 29, 1976 at the YMCA Youth Center
Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with Marriage License No.
4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina
dela Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the prior
marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23
1979 up to the present, she has been working in Saudi Arabia and she used to come to the
Philippines only when she would avail of the one-month annual vacation leave granted by her
foreign employer since 1983 up to the present, he has been unemployed and completely dependent
upon her for support and subsistence; out of her personal earnings, she purchased real and
personal properties with a total amount of approximately P350,000.00, which are under the
possession and administration of Roberto; sometime in June 1989, while on her one-month
vacation, she discovered that he was cohabiting with another woman; she further discovered that he
had been disposing of some of her properties without her knowledge or consent; she confronted him
about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care
of her properties; he failed and refused to turn over the possession and administration of said
properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the
same on account of the nullity of their marriage. The petition prayed that a temporary restraining
order or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of
administration and ownership over said properties; their marriage be declared null and void and of
no force and effect; and Delia Soledad be declared the sole and exclusive owner of all properties
acquired at the time of their void marriage and such properties be placed under the proper
management and administration of the attorney-in-fact.

Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The
marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous
and unnecessary. It added that private respondent has no property which is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss
for lack of merit. She explained:
 Movant argues that a second marriage contracted after a first marriage by a man
with another woman is illegal and void (citing the case of Yap v. Court of Appeals,
145 SCRA 229) and no judicial decree is necessary to establish the invalidity of a
void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v.
Mendoza, 95 Phil. 845). Indeed, under the Yap case there is no dispute that the
second marriage contracted by respondent with herein petitioner after a first
marriage with another woman is illegal and void. However, as to whether or not the
second marriage should first be judicially declared a nullity is not an issue in said
case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit
terms, thus:

And with respect to the right of the second wife, this Court observed
that although the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still subsisting,
still there is need for judicial declaration of its nullity. (37 SCRA 316,
326)

The above ruling which is of later vintage deviated from the previous
rulings of the Supreme Court in the aforecited cases of Aragon and
Mendoza.

Finally, the contention of respondent movant that petitioner has no

property in his possession is an issue that may be determined only
after trial on the merits.1

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra
v. GSIS2 and the absence of justiciable controversy as to the nullity of the marriage. On September
11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days
from receipt within which to file his answer.

Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with grave abuse of discretion
amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals3 dismissed the petition. It explained that the case of Yap
v. CA4 cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of facts because these cases dealt with the
successional rights of the second wife while the instant case prays for separation of property
corollary with the declaration of nullity of marriage. It observed that the separation and subsequent
distribution of the properties acquired during the union can be had only upon proper determination of
the status of the marital relationship between said parties, whether or not the validity of the first
marriage is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits,
the declaration of nullity of marriage may be invoked in this proceeding together with the partition
and distribution of the properties involved. Citing Articles 48, 50 and 52 of the Family Code, it held
that private respondent's prayer for declaration of absolute nullity of their marriage may be raised
together with other incidents of their marriage such as the separation of their properties. Lastly, it
noted that since the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss
is merely one of law for which the remedy ordinarily would have been to file an answer, proceed with
the trial and in case of an adverse decision, reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of merit.5

Hence, this petition.

The two basic issues confronting the Court in the instant case are the following.

First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for purposes of remarriage.

Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain
real and personal properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon6 and People v. Mendoza,7 contends that SP. No.
1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private respondent
must be dismissed for being unnecessary and superfluous. Furthermore, under his own
interpretation of Article 40 of the Family Code, he submits that a petition for declaration of absolute
nullity of marriage is required only for purposes of remarriage. Since the petition in SP No. 1989-J
contains no allegation of private respondent's intention to remarry, said petition should therefore, be
dismissed.

On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity
of their marriage, not for purposes of remarriage, but in order to provide a basis for the separation
and distribution of the properties acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebrated while the
former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it
is from the beginning.8 Petitioner himself does not dispute the absolute nullity of their marriage.9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where
the Court had earlier ruled that no judicial decree is necessary to establish the invalidity of a void,
bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on
these occasions stating that:

Though the logician may say that where the former marriage was void there would
be nothing to dissolve, still it is not for the spouses to judge whether that marriage
was void or not. That judgment is reserved to the courts. . . . 10

This dissenting opinion was adopted as the majority position in subsequent cases involving the
same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of
the disputed property acquired during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial
declaration thereof, which of course contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service
Insurance System, that "although the second marriage can be presumed to be void ab initio as it
was celebrated while the first marriage was still subsisting, still there is need for judicial declaration
of such nullity."

In Tolentino v. Paras,12 however, the Court turned around and applied

the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a
declaration as the lawful surviving spouse and the correction of the death certificate of her deceased
husband, it explained that "(t)he second marriage that he contracted with private respondent during
the lifetime of his first spouse is null and void from the beginning and of no force and effect. No
judicial decree is necessary to establish the invalidity of a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to
the Consuegra case and held that there was "no need of introducing evidence about the existing
prior marriage of her first husband at the time they married each other, for then such a marriage
though void still needs according to this Court a judicial declaration of such fact and for all legal
intents and purposes she would still be regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action
or a ground for defense. 14 Where the absolute nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the sole basis acceptable in law for said projected
marriage be free from legal infirmity is a final judgment declaring the previous marriage void. 15

The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted what is
now the Family Code of the Philippines took the position that parties to a marriage should not be
allowed to assume that their marriage is void even if such be the fact but must first secure a judicial
declaration of the nullity of their marriage before they can be allowed to marry again. This is borne
out by the following minutes of the 152nd Joint Meeting of the Civil Code and Family Law
Committees where the present Article 40, then Art. 39, was discussed.

B. Article 39. —

The absolute nullity of a marriage may be invoked only on the basis

of a final judgment declaring the marriage void, except as provided in
Article 41.

Justice Caguioa remarked that the above provision should include not only void but
also voidable marriages. He then suggested that the above provision be modified as
follows:

The validity of a marriage may be invoked only . . .

Justice Reyes (J.B.L. Reyes), however, proposed that they say:

The validity or invalidity of a marriage may be invoked

only . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . .

Justice Caguioa explained that his idea is that one cannot determine for himself
whether or not his marriage is valid and that a court action is needed. Justice Puno
accordingly proposed that the provision be modified to read:

The invalidity of a marriage may be invoked only on the basis of a

final judgment annulling the marriage or declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice Puno,
however, pointed out that, even if it is a judgment of annulment, they still have to
produce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be invoked only on the basis of a

final judgment declaring the marriage invalid, except as provided in
Article 41.

Justice Puno raised the question: When a marriage is declared invalid, does it
include the annulment of a marriage and the declaration that the marriage is void?
Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments,
even if the marriage is annulled, it is declared void. Justice Puno suggested that this
matter be made clear in the provision.

Prof. Baviera remarked that the original idea in the provision is to require first a
judicial declaration of a void marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that annullable marriages are presumed
valid until a direct action is filed to annul it, which the other members affirmed.
Justice Puno remarked that if this is so, then the phrase "absolute nullity" can stand
since it might result in confusion if they change the phrase to "invalidity" if what they
are referring to in the provision is the declaration that the marriage is void.

Prof. Bautista commented that they will be doing away with collateral defense as well
as collateral attack. Justice Caguioa explained that the idea in the provision is that
there should be a final judgment declaring the marriage void and a party should not
declare for himself whether or not the marriage is void, while the other members
affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral
attack on that point. Prof. Bautista stated that there are actions which are brought on
the assumption that the marriage is valid. He then asked: Are they depriving one of
the right to raise the defense that he has no liability because the basis of the liability
is void? Prof. Bautista added that they cannot say that there will be no judgment on
the validity or invalidity of the marriage because it will be taken up in the same
proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice
Caguioa saw the point of Prof. Bautista and suggested that they limit the provision to
remarriage. He then proposed that Article 39 be reworded as follows:

The absolute nullity of a marriage for purposes of remarriage may be

invoked only on the basis of final judgment . . .

Justice Puno suggested that the above be modified as follows:

The absolute nullity of a previous marriage may be invoked for

purposes of establishing the validity of a subsequent marriage only
on the basis of a final judgment declaring such previous marriage
void, except as provided in Article 41.

Justice Puno later modified the above as follows:

For the purpose of establishing the validity of a subsequent marriage,

the absolute nullity of a previous marriage may only be invoked on
 the basis of a final judgment declaring such nullity, except as
provided in Article 41.

Justice Caguioa commented that the above provision is too broad and will not solve
the objection of Prof. Bautista. He proposed that they say:

For the purpose of entering into a subsequent marriage, the absolute

nullity of a previous marriage may only be invoked on the basis of a
final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one enters
into a subsequent marriage without obtaining a final judgment declaring the nullity of
a previous marriage, said subsequent marriage is void ab initio.

After further deliberation, Justice Puno suggested that they go back to the original
wording of the provision as follows:

The absolute nullity of a previous marriage may be invoked for

purposes of remarriage only on the basis of a final judgment
declaring such previous marriage void, except as provided in Article
41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of
the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial
declaration of the nullity of his or her first marriage, the person who marries again cannot be charged
with bigamy. 18

Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration
of absolute nullity of a prior subsisting marriage before contracting another in the recent case
of Terre v. Terre. 19 The Court, in turning down the defense of respondent Terre who was charged
with grossly immoral conduct consisting of contracting a second marriage and living with another
woman other than complainant while his prior marriage with the latter remained subsisting, said that
"for purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits
that the same can be maintained only if it is for the purpose of remarriage. Failure to allege this
purpose, according to petitioner's theory, will warrant dismissal of the same.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)

Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely."
As it is placed, the same shows that it is meant to qualify "final judgment declaring such previous
marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the
Committee members, the provision in question, as it finally emerged, did not state "The absolute
nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in which case
"solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been
such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of
a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the
clause "on the basis solely of a final judgment declaring such previous marriage void."

That Article 40 as finally formulated included the significant clause denotes that such final judgment
declaring the previous marriage void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party might well invoke the absolute
nullity of a previous marriage for purposes other than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property between the erstwhile spouses, as well
as an action for the custody and support of their common children and the delivery of the latters'
presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering such a previous marriage an absolute
nullity. These need not be limited solely to an earlier final judgment of a court declaring such
previous marriage void. Hence, in the instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into another marriage which is legally
unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he
may do on the basis solely of a final judgment declaring such previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why
should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a
final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage,
other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is

the foundation of the family;" as such, it "shall be protected by the State."20 In more explicit terms, the
Family Code characterizes it as "a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal, and family life." 21 So
crucial are marriage and the family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to stipulation . . ." 22 As a matter of
policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be
accomplished merely on the basis of the perception of both parties or of one that their union is so
defective with respect to the essential requisites of a contract of marriage as to render it void ipso
jure and with no legal effect — and nothing more. Were this so, this inviolable social institution would
be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for
nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could
conceive. For such a social significant institution, an official state pronouncement through the courts,
and nothing less, will satisfy the exacting norms of society. Not only would such an open and public
declaration by the courts definitively confirm the nullity of the contract of marriage, but the same
would be easily verifiable through records accessible to everyone.

That the law seeks to ensure that a prior marriage is no impediment to a second sought to be
contracted by one of the parties may be gleaned from new information required in the Family Code
to be included in the application for a marriage license, viz, "If previously married, how, when and
where the previous marriage was dissolved and annulled." 23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is,
undoubtedly, quite restrictive. Thus, his position that private respondent's failure to state in the
petition that the same is filed to enable her to remarry will result in the dismissal of SP No. 1989-J is
untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely"
was in fact anticipated by the members of the Committee.
 Dean Gupit commented the word "only" may be misconstrued to refer to "for
purposes of remarriage." Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the basis only of a final
judgment." Prof. Baviera suggested that they use the legal term "solely" instead of
"only," which the Committee approved. 24 (Emphasis supplied)

Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary,
petitioner suggests that private respondent should have filed an ordinary civil action for the recovery
of the properties alleged to have been acquired during their union. In such an eventuality, the lower
court would not be acting as a mere special court but would be clothed with jurisdiction to rule on the
issues of possession and ownership. In addition, he pointed out that there is actually nothing to
separate or partition as the petition admits that all the properties were acquired with private
respondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of
absolute nullity of marriage may be raised together with the other incident of their marriage such as
the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment therein shall
provide for "the liquidation, partition and distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings." 25 Other specific effects flowing
therefrom, in proper cases, are the following:

Art. 43. xxx xxx xxx

(2) The absolute community of property or the conjugal partnership, as the case may
be, shall be dissolved and liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage or, in default of
children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked
by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession.
(n)

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked by operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of property
will simply be one of the necessary consequences of the judicial declaration of absolute nullity of
their marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an
ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage, one of which is the separation of
property according to the regime of property relations governing them. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is brought is likewise clothed with
jurisdiction to decide the incidental questions regarding the couple's properties. Accordingly, the
respondent court committed no reversible error in finding that the lower court committed no grave
abuse of discretion in denying petitioner's motion to dismiss SP No. 1989-J.

WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated
February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED.

SO ORDERED.

Bidin and Melo, JJ., concur.

Feliciano, J., is on leave.

 II. LEGAL SEPARATION

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-11-SC March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court
submitting for this Court's consideration and approval the Proposed Rule on Legal Separation, the
Court Resolved to APPROVED the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of
general circulation not later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.

RULE ON LEGAL SEPARATION

Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of
the Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed
only by the husband or the wife, as the case may be within five years from the time of the
occurrence of any of the following causes:

(a) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious
or political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a

child of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
 (d) Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or

outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or

(j) Abandonment of petitioner by respondent without justifiable cause for more than
one year.

(b) Contents and form. - The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(2) State the names and ages of the common children of the parties, specify the
regime governing their property relations, the properties involved, and creditors, if
any. If there is no adequate provision in a written agreement between the parties, the
petitioner may apply for a provisional order for spousal support, custody and support
of common children, visitation rights, administration of community or conjugal
property, and other similar matters requiring urgent action,

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

verification and certification must be personally signed by the petitioner. No petition
may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a
foreign country, the verification and certification against forum shopping shall be
authenticated by the duly authorized officer of the Philippine embassy or legation,
consul general, consul or vice-consul or consular agent in said country

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish
a copy of the petition to the City or Provincial Prosecutor and the creditors, if any,
and submit to the court proof of such service within the same period.

Failure to comply with the preceding requirements may be a ground for

immediate dismissal of the petition.

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing
"or in The case of a non-resident respondent, where he may be found in the Philippines, at
the election of the petitioner.

Section 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court
and by the following rules:
 (a) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of
court, be effected upon him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such place as the court may order.
In addition, a copy of the summons shall be served on respondent at his last known address
by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the
following data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal
grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to answer
within thirty days from the last issue of publication.

Section 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any
other ground that might warrant a dismissal of the case may be raised as an affirmative defense in
an answer.

Section 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of
summons, or within thirty days from the last issue of publication in case of service of summons by
publication. The answer must be verified by respondent himself and not by counsel or attorney-in-
fact.

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed/or if the answer does not tender an issue the court shall order
the public prosecutor to investigate whether collusion exists between the parties.

Section 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the
court order mentioned in paragraph (c) of the preceeding section, the public prosecutor shall submit
a report to the court on whether the parties are in collusion and serve copies on the parties and their
respective counsels, if any.

(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his
report. The parties shall file their respective comments on the finding of collusion within ten
days from receipt of copy of the report. The court shall set the report for hearing and if
convinced that parties are in collusion,-it shall dismiss the petition.

(c) If the public prosecutor reports that no collusion exists, the court shall set the case for
pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Section 7. Social Worker. - The court may require a social worker to conduct a case study and to
submit the corresponding report at least three days before the pre-trial. The court may also require a
case study at any stage of the case whenever necessary,

Section 8. Pre-trial. -

(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion or motu proprio, the court shall
set the pre-trial after the last pleading has been served and filed, or upon receipt of the report
of the public prosecutor that no collusion exists between the parties on a date not earlier than
six months from date of the filing of the petition.
 (b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure the receipt thereof by the adverse party
at least three days before the date of pre-trial.

(2) The notice shall be served separately on the parties and their respective counsels
as well as on the public prosecutor. It shall be their duty to appear personally at the
pre-trial.

(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer.
In case of summons by publication and the respondent failed to file his answer,
notice of pre-trial shall be sent to respondent at his last known address.

Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(1) A statement of the willingness of the parties to enter into agreements as may be allowed
by law, indicating the desired terms thereof;

(2) A concise statement of their respective claims together with the applicable laws and
authorities;

(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and
legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or
describing the nature and purpose thereof;

(5) The number and names of the witnesses and their respective affidavits; and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial under the succeeding section.

Section 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally,
the case shall be dismissed unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-
trial and require the public prosecutor to investigate the non-appearance of the respondent
and submit within fifteen days a report to the court stating whether his non-appearance is
due to any collusion between the parties/ If there is no collusion the court shall require the
public prosecutor to intervene for the State during the trial on the.merits to prevent
suppression or fabrication of evidence.

Section 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a
mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.
 The mediator shall render a report within one month from referral which, for good reasons, the
court may extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider the advisability of receiving expert testimony and
such other matters as may aid in the prompt disposition of the petition.

Section 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up
in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except
as to the ground of legal separation, the agreements or admissions made by the parties on any of
the matters considered, including any provisional order that may be necessary or agreed upon by
the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to
Section 13 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be
presented;

(4) Names of witnesses who will be presented and their testimonies in the form of
affidavits; and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for
the State and take steps to prevent collusion between the parties at any stage of the
proceedings and fabrication or suppression of evidence during the trial on the merits.

(c) The parties shall not be allowed to raise issues or present witnesses and evidence other
than those stated in the pre-trial order. The order shall control the trial of the case unless
modified by the court to prevent manifest injustice.

(d) The parties shall have five days from receipt of the pre-trial order to propose corrections
or modifications.

Section 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters,
such as the following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground lor legal separation;

(4) Future support;

 (5) The jurisdiction of courts; and

(6) Future legitime.

Section 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.

(b) The grounds for legal separation must be proved. No judgment on the pleadings,
summary judgment, or confession of judgment shall be allowed.

(c) The court may order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case. Such an order may be made if the
court determines on the record othat requiring a party to testify in open court would not
enhance the ascertainment of truth; would cause to the party psychological harm or inability
to effectively communicate due to embarrassment, fear, or timidity; would violate the party's
right to privacy; or would be offensive to decency

(d) No copy shall be taken nor any examination or perusal of the records of the case or parts
thereof be made by any person other than a party or counsel of a party, except by order of
the court.

Section 15. Memoranda. - The court may require the parties and the public prosecutor to file their
respective memoranda in support of their claims within fifteen days from the date the trial is
terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of
the period herein provided, the case will be considered submitted for decision, with or without the
memoranda.

Section 16. Decision. - (a) The court shall deny the petition on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has
consented to the commission of the offense or act complained of;

(2) There is connivance in the commission of the offense-or act constituting the
ground for legal separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the Decree
of Legal Separation shall be issued by the court only after full compliance with liquidation
under the Family Code.

However, in the absence of any property of.the parties, the court shall forthwith issue a
Decree of Legal Separation which shall be registered in the Civil Registry where the
marriage was recorded and in the Civil Registry where the Family Court granting the legal
separation is located.
 (c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond
is not severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent spouse by
intestate succession, and provisions in favor of the offending spouse made in the will
of the innocent spouse are revoked by operation of law.

(d) The parties, including the Solicitor General and the public prosecutor, shall be served
with copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall also be
published once in a newspaper of general circulation.

Section 17. Appeal. -

(a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon
the adverse parties.

Section 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon
entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family Court, on motion of either party,
shall proceed with the liquidation, partition and distribution of the properties of the spouses, including
custody and support of common children, under the Family Code unless such matters had been
adjudicated in previous judicial proceedings.

Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal
Separation after:

(1) registration of the entry of judgment granting the petition tor legal separation in
the Civil Registry where the marriage was celebrated and in the Civil Registry where
the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of the
spouses, in the proper Register of Deeds where the real properties are located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and
attach to the Decree the approved deed of partition.

Section 20. Registration and publication of the Decree of Legal Separation; decree as best
evidence. -

(a) Registration of decree.-The prevailing party shall cause the registration of the Decree in
the Civil Registry where the marriage was registered, in the Civil Registry of the place where
 the Family Court is situated, and in the National Census and Statistics Office. He shall report
to the court compliance with this requirement within thirty days iron receipt of the copy of the
Decree.

(b) Publication of decree.-- In case service of summons was made by publication, the parties
shall cause the publication of the Decree once in a newspaper of general circulation.

(c) Best evidence.-The registered Decree shall be the best evidence to prove the legal
separation of the parties and shall serve as notice to third persons concerning the properties
of petitioner and respondent.

Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a
party dies at any stage of me proceedings before the entry of judgment, the court shall order the
case closed and terminated without prejudice to the settlement of estate proper proceedings in the
regular courts.

(b) If the party dies after the entry of judgment, the same shall be binding upon the parties
and their successors in interest in the settlement of the estate in the regular courts.

Section 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision
granting the petition for legal separation has become final, the innocent spouse may file a petition
under oath the same proceeding for legal separation to revoke the donations in favor of the
offending spouse.

(b)The revocation of the donations shall be recorded in the Register of Deeds of Deeds in
the places where the properties are located.

(c)Alienations, liens, and encumbrances registered in good faith. before the recording of the
petition for revocation in the registries of property shall be respected.

(d)After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the
designation of the offending spouse as a beneficiary in any insurance policy even if such
designation be stipulated as irrevocable. The revocation or change shall take effect upon
written notification thereof to the insurer.

Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation under
oath, duly signed by the spouses, may be filed in the same proceeding for legal separation.

(b) If the reconciliation occurred while the proceeding for legal separation is pending, the
court shall immediately issue an order terminating the proceeding.

(c) If the reconciliation occurred after the rendition of the judgment granting the petition for
legal separation but before the issuance of the Decree, the spouses shall express in their
manifestation whether or not they agree to revive the former regime of their property
relations or choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal
separation proceeding is set aside and specifying the regime of property relations under
which the spouses shall be covered.
 (d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion,
shall issue a decree of reconciliation declaring therein that the Decree is set aside but the
separation of property and any forfeiture of the share of the guilty spouse already effected
subsists, unless the spouses have agreed to revive their former regime of property relations
or adopt a new regime.

(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a
regime of property relations different from that which they had prior to the filing of the petition
for legal separation, the spouses shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage
and the Decree had been registered.

Section 24. Revival of property regime or adoption of another. -

(a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a
verified motion for revival of regime of property relations or the adoption of another regime of
property relations in the same proceeding for legal separation attaching to said motion their
agreement for the approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses, and the amounts owing
to each.

(c) The creditors shall be furnished with copies of the motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion for
two consecutive weeks in a newspaper of general circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order
directing the parties to record the order in the proper registries of property within thirty days
from receipt of a copy of the order and submit proof of compliance within the same period.

Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.
G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis
Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the
respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to
private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated
5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation
filed against him by private respondent as well as his motion to inhibit respondent Judge from further
hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial
Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over
by respondent Judge, a complaint against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of damages. This case was docketed as Civil
Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court,
General Santos City, a complaint against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the
provisional remedy of support pendente lite, pending a decision in the action for legal separation,
was filed by private respondent in the civil case for legal separation. The respondent judge, as
already stated, on 10 December 1986, ordered The payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view of
the criminal case for concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party
shall have instituted the civil action to enforce the civil liability arising from the
offense. as contemplated in the first Section 1 hereof, the following rules shall be
observed:

(a) After a criminal action has been commenced the pending civil action arising from
the same offense shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that
such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all
proceedings related to legal separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation
would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107
of the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise

provided by law, the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal action, unless
the offended party expressly waives the civil action or reserves his right to institute it
separately;

(b) Criminal and civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil action can not
be instituted until final judgment has been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended in whatever stage it
may be found until final judgment in the criminal proceeding has been rendered ...
(Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of the amendment under the 1985 Rules on
Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead
of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to
enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from
or are related to the same offense. Such civil action is one intended to obtain the right to live
separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership
of gains, custody of offsprings, support, and disqualification from inheriting from the innocent
spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5
August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of
Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied
paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising

from the same offense can be prosecuted and the same shall be
suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil
actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense
charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil
liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is
aimed at the conjugal rights of the spouses and their relations to each other, within the
contemplation of Articles 7 to 108, of the Civil Code."2

Petitioner also argues that his conviction for concubinage will have to be first secured before the
action for legal separation can prosper or succeed, as the basis of the action for legal separation is
his alleged offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction
is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was
decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the
same grounds for legal separation under the New Civil Code, with the requirement, under such
former law, that the guilt of defendant spouses had to be established by final judgment in a criminal
action. That requirement has not been reproduced or adopted by the framers of the present Civil
Code, and the omission has been uniformly accepted as a modification of the stringent rule
in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no
proof of grave abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted
at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant
of support pendente lite and the denial of the motion to suspend hearings in the case, are taken by
the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the
respondent Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and
a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the
judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this
case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep.

2 Rollo at 33.
3 Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his Motion
to Inhibit Respondent Judge and Motion to Suspend Hearing wherein he states,
"Concubinage is the same criminal offense punishable under Art. 334 of the Revised
Penal Code which in a case for legal separation, the same may be proved based on
preponderance of evidence". Rollo at 50.

4 50 Phil. 42 (1927)

5 Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE
PHILIPPINES ANNOTATED 374 (1971); Tolentino, I COMMENTARIES AND
JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 311 (1983).
Tolentino qualifies: " It is not mere sexual infidelity that constitutes the ground for
legal separation. Such infidelity must constitute adultery or concubinage as defined
by the Revised Penal Code." (Id. at 310). Further: "There would be no more legal
obstacle to a decree of legal separation at the instance of an offended wife, based on
an act of infidelity for which the guilty husband has been convicted of adultery upon
the complaint of his paramour's husband so long as such act may also constitute
concubinage and can be proven in the legal separation proceedings. We submit that
the new Code, by omitting the requirement of criminal conviction of adultery or
concubinage, as the case may be, has modified the doctrine in the case of Francisco
v. Tayao."(Id. at 311).

It may be noted that under Article 55(6) of the Family Code of the Philippines
(Executive Order No. 209 as ammended) soon to take effect, sexual infidelity or
perversion of either spouse has replaced adultery on the part of the wife and
concubinage on the part of the husband as defined by the Revised Penal Code (Art.
97, New Civil Code) as one of the grounds for legal separation.

6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956).

7 Sec. 5, Rule 61 of the Rules of Court states:

Order.- The court shall determine provisionally the pertinent facts, and shall render
such order as equity and justice may require, having due regard to the necessities of
the applicant, the means of the adverse party, the probable outcome of the case, and
such other circumstances as may aid in the proper elucidation of the question
involved. If the application is granted, the court shall fix the amount of money to be
provissionally paid, and the terms of payment. If the application is denied, the trial of
the principal case on its merit shall be held as early as possible.
G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,

vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance
of Negros Oriental and CLEMEN G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal
separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for
preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First
Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads
thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He
therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a
writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy
Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will
be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea
for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of
respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the
respondent's part and an attempt by him against her life being alleged. She likewise sought the
issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be
her paraphernal and exclusive property, then under the administration and management of
respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July
3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated
July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect
of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the
parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent Judge granting the motion of respondent
Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is
the order complained of in this petition for certiorari. Respondents were required to answer
according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then
on January 12, 1972 came a manifestation from parties in the case submitting the matter without
further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article
103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the
expiration of the six-month period.
1. It is understandable why there should be a period during which the court is precluded from acting.
Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served.
The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however,
is something else again. It involves a relationship on which the law for the best reasons would attach
the quality of permanence. That there are times when domestic felicity is much less than it ought to
be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or
both of the spouses. There may be constant bickering. The loss affection on the part of one or both
may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the
husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason
for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for
certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an
attempt of one spouse against the life of the other,1 it recognizes, albeit reluctantly, that the couple is
better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their
differences is not all together abandoned. The healing balm of time may aid in the process.
Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit
magnanimity. Hence, the interposition of a six-month period before an action for legal separation is
to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the
parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility
for the view of the lower court that an ancillary motion such as one for preliminary mandatory
injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal
language of such codal provision. That the law, however, remains cognizant of the need in certain
cases for judicial power to assert itself is discernible from what is set forth in the following article. It
reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live
separately from each other and manage their respective property. The husband shall continue to
manage the conjugal partnership property but if the court deems it proper, it may appoint another to
manage said property, in which case the administrator shall have the same rights and duties as a
guardian and shall not be allowed to dispose of the income or of the capital except in accordance
with the orders of the court."2 There would appear to be then a recognition that the question of
management of their respective property need not be left unresolved even during such six-month
period. An administrator may even be appointed for the management of the property of the conjugal
partnership. The absolute limitation from which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be heard. There is justification then for the
petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by
the lower court. There is all the more reason for this response from respondent Judge, considering
that the husband whom she accused of concubinage and an attempt against her life would in the
meanwhile continue in the management of what she claimed to be her paraphernal property, an
assertion that was not specifically denied by him. What was held by this Court in Araneta v.
Concepcion,3 thus possesses relevance: "It is conceded that the period of six months fixed therein
Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation
between the spouses. The recital of their grievances against each other in court may only fan their
already inflamed passions against one another, and the lawmaker has imposed the period to give
them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions such as the determination of
the custody of the children and alimony and support pendente lite according to the circumstance ...
The law expressly enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may
be caused."4 At any rate, from the time of the issuance of the order complained of on August 4, 1971,
more than six months certainly had elapsed. Thus there can be no more impediment for the lower
court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent
Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory
injunction is set aside. Respondent Judge is directed to proceed without delay to hear the motion for
preliminary mandatory injunction. Costs against respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.

G.R. No. 153206 October 23, 2006

ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,

vs.
LUCITA G. ONG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review seeking the reversal of the Decision1 of the Court of
Appeals (CA) in CA G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial
Court (RTC) Branch 41, Dagupan City granting the petition for legal separation filed by herein
respondent, as well as the Resolution2 of the CA dated April 26, 2002 which denied petitioner’s
motion for reconsideration.

Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married on
July 13, 1975 at the San Agustin Church in Manila. They have three children: Kingston, Charleston,
and Princeton who are now all of the age of majority.3

On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the
Family Code4 before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life
with William was marked by physical violence, threats, intimidation and grossly abusive conduct.5

Lucita claimed that: soon after three years of marriage, she and William quarreled almost every day,
with physical violence being inflicted upon her; William would shout invectives at her like "putang ina
mo", "gago", "tanga", and he would slap her, kick her, pull her hair, bang her head against concrete
wall and throw at her whatever he could reach with his hand; the causes of these fights were petty
things regarding their children or their business; William would also scold and beat the children at
different parts of their bodies using the buckle of his belt; whenever she tried to stop William from
hitting the children, he would turn his ire on her and box her; on December 9, 1995, after she
protested with William’s decision to allow their eldest son Kingston to go to Bacolod, William slapped
her and said, "it is none of your business"; on December 14, 1995, she asked William to bring
Kingston back from Bacolod; a violent quarrel ensued and William hit her on her head, left cheek,
eye, stomach, and arms; when William hit her on the stomach and she bent down because of the
pain, he hit her on the head then pointed a gun at her and asked her to leave the house; she then
went to her sister’s house in Binondo where she was fetched by her other siblings and brought to
their parents house in Dagupan; the following day, she went to her parent’s doctor, Dr. Vicente
Elinzano for treatment of her injuries.6

William for his part denied that he ever inflicted physical harm on his wife, used insulting language
against her, or whipped the children with the buckle of his belt. While he admits that he and Lucita
quarreled on December 9, 1995, at their house in Jose Abad Santos Avenue, Tondo, Manila, he
claimed that he left the same, stayed in their Greenhills condominium and only went back to their
Tondo house to work in their office below. In the afternoon of December 14, 1995, their
laundrywoman told him that Lucita left the house.7

On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal

separation of plaintiff and defendant, with all the legal effects attendant thereto, particularly
the dissolution and liquidation of the conjugal partnership properties, for which purpose the
parties are hereby ordered to submit a complete inventory of said properties so that the
Court can make a just and proper division, such division to be embodied in a supplemental
decision.

SO ORDERED.8

The RTC found that:

It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and
misunderstanding which made both of their lives miserable and hellish. This is even admitted
by the defendant when he said that there was no day that he did not quarrel with his wife.
Defendant had regarded the plaintiff negligent in the performance of her wifely duties and
had blamed her for not reporting to him about the wrongdoings of their children. (citations
omitted)

These quarrels were always punctuated by acts of physical violence, threats and intimidation
by the defendant against the plaintiff and on the children. In the process, insulting words and
language were heaped upon her. The plaintiff suffered and endured the mental and physical
anguish of these marital fights until December 14, 1995 when she had reached the limits of
her endurance. The more than twenty years of her marriage could not have been put to
waste by the plaintiff if the same had been lived in an atmosphere of love, harmony and
peace. Worst, their children are also suffering. As very well stated in plaintiff’s memorandum,
"it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children, whom she loves, if there exists no
cause, which is already beyond her endurance.9

William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated October 8,
2001, the CA found that the testimonies for Lucita were straightforward and credible and the ground
for legal separation under Art. 55, par. 1 of the Family Code, i.e., physical violence and grossly
abusive conduct directed against Lucita, were adequately proven.10

As the CA explained:

The straightforward and candid testimonies of the witnesses were uncontroverted and
credible. Dr. Elinzano’s testimony was able to show that the [Lucita] suffered several injuries
inflicted by [William]. It is clear that on December 14, 1995, she sustained redness in her
cheek, black eye on her left eye, fist blow on the stomach, blood clot and a blackish
 discoloration on both shoulders and a "bump" or "bukol" on her head. The presence of these
injuries was established by the testimonies of [Lucita] herself and her sister, Linda Lim. The
Memorandum/Medical Certificate also confirmed the evidence presented and does not
deviate from the doctor’s main testimony --- that [Lucita] suffered physical violence on [sic]
the hands of her husband, caused by physical trauma, slapping of the cheek, boxing and fist
blows. The effect of the so-called alterations in the Memorandum/Medical Certificate
questioned by [William] does not depart from the main thrust of the testimony of the said
doctor.

Also, the testimony of [Lucita] herself consistently and constantly established that [William]
inflicted repeated physical violence upon her during their marriage and that she had been
subjected to grossly abusive conduct when he constantly hurled invectives at her even in
front of their customers and employees, shouting words like, "gaga", "putang ina mo,"
tanga," and "you don’t know anything."

These were further corroborated by several incidents narrated by Linda Lim who lived in their
conjugal home from 1989 to 1991. She saw her sister after the December 14, 1995 incident
when she (Lucita) was fetched by the latter on the same date. She was a witness to the kind
of relationship her sister and [William] had during the three years she lived with them. She
observed that [William] has an "explosive temper, easily gets angry and becomes very
violent." She cited several instances which proved that William Ong indeed treated her wife
shabbily and despicably, in words and deeds.

xxx

That the physical violence and grossly abusive conduct were brought to bear upon [Lucita]
by [William] have been duly established by [Lucita] and her witnesses. These incidents were
not explained nor controverted by [William], except by making a general denial thereof.
Consequently, as between an affirmative assertion and a general denial, weight must be
accorded to the affirmative assertion.

The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her
sister. The injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in
front of their employees and friends, are enough to constitute grossly abusive conduct. The
aggregate behavior of [William] warrants legal separation under grossly abusive conduct. x x
x11

William filed a motion for reconsideration which was denied by the CA on April 26, 2002.12

Hence the present petition where William claims that:

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING

CLEAR EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED
BY THE PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF REMOVING FROM
PETITIONER THE CONTROL AND OWNERSHIP OF THEIR CONJUGAL PROPERTIES
AND TO TRANSFER THE SAME TO PRIVATE RESPONDENT’S FAMILY.

II
 THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING
CLEAR EVIDENCE REPUDIATING PRIVATE RESPONDENT’S CLAIM OF REPEATED
PHYSICAL VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE PART OF
PETITIONER.13

William argues that: the real motive of Lucita and her family in filing the case is to wrest control and
ownership of properties belonging to the conjugal partnership; these properties, which include real
properties in Hong Kong, Metro Manila, Baguio and Dagupan, were acquired during the marriage
through his (William’s) sole efforts; the only parties who will benefit from a decree of legal separation
are Lucita’s parents and siblings while such decree would condemn him as a violent and cruel
person, a wife-beater and child abuser, and will taint his reputation, especially among the Filipino-
Chinese community; substantial facts and circumstances have been overlooked which warrant an
exception to the general rule that factual findings of the trial court will not be disturbed on appeal; the
findings of the trial court that he committed acts of repeated physical violence against Lucita and
their children were not sufficiently established; what took place were disagreements regarding the
manner of raising and disciplining the children particularly Charleston, Lucita’s favorite son; marriage
being a social contract cannot be impaired by mere verbal disagreements and the complaining party
must adduce clear and convincing evidence to justify legal separation; the CA erred in relying on the
testimonies of Lucita and her witnesses, her sister Linda Lim, and their parent’s doctor, Dr. Vicente
Elinzanzo, whose testimonies are tainted with relationship and fraud; in the 20 years of their
marriage, Lucita has not complained of any cruel behavior on the part of William in relation to their
marital and family life; William expressed his willingness to receive respondent unconditionally
however, it is Lucita who abandoned the conjugal dwelling on December 14, 1995 and instituted the
complaint below in order to appropriate for herself and her relatives the conjugal properties; the
Constitution provides that marriage is an inviolable social institution and shall be protected by the
State, thus the rule is the preservation of the marital union and not its infringement; only for grounds
enumerated in Art. 55 of the Family Code, which grounds should be clearly and convincingly proven,
can the courts decree a legal separation among the spouses.14

Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present
petition are factual; the findings of both lower courts rest on strong and clear evidence borne by the
records; this Court is not a trier of facts and factual findings of the RTC when confirmed by the CA
are final and conclusive and may not be reviewed on appeal; the contention of William that Lucita
filed the case for legal separation in order to remove from William the control and ownership of their
conjugal properties and to transfer the same to Lucita’s family is absurd; Lucita will not just throw her
marriage of 20 years and forego the companionship of William and her children just to serve the
interest of her family; Lucita left the conjugal home because of the repeated physical violence and
grossly abusive conduct of petitioner.15

Petitioner filed a Reply, reasserting his claims in his petition,16 as well as a Memorandum where he
averred for the first time that since respondent is guilty of abandonment, the petition for legal
separation should be denied following Art. 56, par. (4) of the Family Code.17 Petitioner argues that
since respondent herself has given ground for legal separation by abandoning the family simply
because of a quarrel and refusing to return thereto unless the conjugal properties were placed in the
administration of petitioner’s in-laws, no decree of legal separation should be issued in her favor.18

Respondent likewise filed a Memorandum reiterating her earlier assertions.19

We resolve to deny the petition.

It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of the
Rules of Court. The rule finds more stringent application where the CA upholds the findings of fact of
the trial court. In such instance, this Court is generally bound to adopt the facts as determined by the
lower courts.20

The only instances when this Court reviews findings of fact are:

(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8)
when the findings are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply
briefs are not disputed by the respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record; and (11) when
the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different conclusion.21

As petitioner failed to show that the instant case falls under any of the exceptional circumstances,
the general rule applies.

Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by
the records or are based on substantial evidence.22 In this case, the findings of the RTC were
affirmed by the CA and are adequately supported by the records.

As correctly observed by the trial court, William himself admitted that there was no day that he did
not quarrel with his wife, which made his life miserable, and he blames her for being negligent of her
wifely duties and for not reporting to him the wrongdoings of their children.23

Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William
displayed violent temper against Lucita and their children; such as: when William threw a steel chair
at Lucita;24 threw chairs at their children;25 slapped Lucita and utter insulting words at her;26 use the
buckle of the belt in whipping the children;27 pinned Lucita against the wall with his strong arms
almost strangling her, and smashed the flower vase and brick rocks and moldings leaving the
bedroom in disarray;28 shouted at Lucita and threw a directory at her, in front of Linda and the
employees of their business, because he could not find a draft letter on his table;29 got mad at
Charleston for cooking steak with vetchin prompting William to smash the plate with steak and hit
Charleston, then slapped Lucita and shouted at her "putang ina mo, gago, wala kang pakialam,
tarantado" when she sided with Charleston;30 and the December 9 and December 14, 1995 incidents
which forced Lucita to leave the conjugal dwelling.31

Lucita also explained that the injuries she received on December 14, 1995, were not the first. As she
related before the trial court:

q. You stated on cross examination that the injuries you sustained on December 14, 1995
were the most serious?

a. Unlike before I considered December 14, 1995 the very serious because before it is only
on the arm and black eye, but on this December 14, I suffered bruises in all parts of my
body, sir.32
To these, all William and his witnesses, could offer are denials and attempts to downplay the said
incidents.33

As between the detailed accounts given for Lucita and the general denial for William, the Court gives
more weight to those of the former. The Court also gives a great amount of consideration to the
assessment of the trial court regarding the credibility of witnesses as trial court judges enjoy the
unique opportunity of observing the deportment of witnesses on the stand, a vantage point denied
appellate tribunals.34 Indeed, it is settled that the assessment of the trial court of the credibility of
witnesses is entitled to great respect and weight having had the opportunity to observe the conduct
and demeanor of the witnesses while testifying.35

In this case, the RTC noted that:

William’s denial and that of his witnesses of the imputation of physical violence committed by
him could not be given much credence by the Court. Since the office secretary Ofelia Rosal
and the family laundrywoman Rosalino Morco are dependent upon defendant for their
livelihood, their testimonies may be tainted with bias and they could not be considered as
impartial and credible witnesses. So with Kingston Ong who lives with defendant and
depends upon him for support.36

Parenthetically, William claims that that the witnesses of Lucita are not credible because of their
relationship with her. We do not agree. Relationship alone is not reason enough to discredit and
label a witness’s testimony as biased and unworthy of credence37 and a witness’ relationship to one
of the parties does not automatically affect the veracity of his or her testimony.38 Considering the
detailed and straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano, bolstered by
the credence accorded them by the trial court, the Court finds that their testimonies are not tainted
with bias.

William also posits that the real motive of Lucita in filing the case for legal separation is in order for
her side of the family to gain control of the conjugal properties; that Lucita was willing to destroy his
reputation by filing the legal separation case just so her parents and her siblings could control the
properties he worked hard for. The Court finds such reasoning hard to believe. What benefit would
Lucita personally gain by pushing for her parents’ and siblings’ financial interests at the expense of
her marriage? What is more probable is that there truly exists a ground for legal separation, a cause
so strong, that Lucita had to seek redress from the courts. As aptly stated by the RTC,

...it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children whom she loves, if there exists no
cause, which is already beyond her endurance.39

The claim of William that a decree of legal separation would taint his reputation and label him as a
wife-beater and child-abuser also does not elicit sympathy from this Court. If there would be such a
smear on his reputation then it would not be because of Lucita’s decision to seek relief from the
courts, but because he gave Lucita reason to go to court in the first place.

Also without merit is the argument of William that since Lucita has abandoned the family, a decree of
legal separation should not be granted, following Art. 56, par. (4) of the Family Code which provides
that legal separation shall be denied when both parties have given ground for legal separation. The
abandonment referred to by the Family Code is abandonment without justifiable cause for more than
one year.40 As it was established that Lucita left William due to his abusive conduct, such does not
constitute abandonment contemplated by the said provision.
As a final note, we reiterate that our Constitution is committed to the policy of strengthening the
family as a basic social institution.41 The Constitution itself however does not establish the
parameters of state protection to marriage and the family, as it remains the province of the
legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to
protect it and put into operation the constitutional provisions that protect the same.42 With the
enactment of the Family Code, this has been accomplished as it defines marriage and the family,
spells out the corresponding legal effects, imposes the limitations that affect married and family life,
as well as prescribes the grounds for declaration of nullity and those for legal separation.43 As Lucita
has adequately proven the presence of a ground for legal separation, the Court has no reason but to
affirm the findings of the RTC and the CA, and grant her the relief she is entitled to under the law.

WHEREFORE, the petition is DENIED for lack of merit.

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on
motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court
of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no
question of fact involved, the motion being predicated on the assumption as true of the very facts
testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez
left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside
with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study
in a local college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing)
informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-
examination, plaintiff admitted that his wife also informed him by letter, which she claims to have
destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October,
1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him
and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult
instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the
house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded
to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2
nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed
the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from
his wife the truth of the information he received that she had committed adultery but Leonila, instead
of answering his query, merely packed up and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently
denying the averments of the complaint and setting up affirmative defenses. After the issues were
joined and convinced that a reconciliation was not possible, the court set the case for hearing on
June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-
husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of
the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10
days to answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of
the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of
action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act
charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a
cause of action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground
of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of
Appeals, appellant's counsel maintaining that the lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and

(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised
in the answer or in a motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the
case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot by either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of the petition.
 ART. 102. An action for legal separation cannot be filed except within one year from and
after the date on which the plaintiff became cognizant of the cause and within five years from
and after the date when such cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the
charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will
disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted,
however, that in defendant's answer she vehemently and vigorously denies having committed any
act of infidelity against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with
the averments of the complaint, We would have to conclude that the facts appearing on the record
are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff
claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous
letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife
addressed to him admitting that she had been kissed by one Eliong, whose identity was not
established and which admission defendant had no opportunity to deny because the motion to
dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that
can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under
the assumption that he really believed his wife guilty of adultery. What did he do in such state of
mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived
together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from
her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife,
instead of answering his query on the matter, preferred to desert him, probably enraged for being
subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's
attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him,
amount to a condonation of her previous and supposed adulterous acts? In the order appealed from,
the Court a quo had the following to say on this point:

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

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please
tell this Hon. Court why you want to separate from your wife? — A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told me to consult the legal
adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went
to the house of our god-mother, and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.) l awphil.net

Q. What happened next? — A. I persuaded her to come along with me. She consented but I
did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12,
t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day
and one night. (p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and
wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together also as
husband and wife? — A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p.
19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as
defined on the Penal Code.

and in its Art. 100 it says:

lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been
no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, legal separation cannot be claimed by either of them. Collusion between the
parties to obtain legal separation shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions

quoted above, clearly shows that there was a condonation on the part of the husband for the
supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife.
Admitting for the sake of argument that the infidelities amounting to adultery were committed
by the defendant, a reconciliation was effected between her and the plaintiff. The act of the
latter in persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and together they slept
there as husband and wife for one day and one night, and the further fact that in the second
night they again slept together in their house likewise as husband and wife — all these facts
have no other meaning in the opinion of this court than that a reconciliation between them
was effected and that there was a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of infidelity amounting to
adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
"condonation is implied from sexual intercourse after knowledge of the other infidelity. such
acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the
wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt,
her consent should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

 Condonation. Is the forgiveness of a marital offense constituting a ground for divorce
and bars the right to a divorce. But it is on the condition, implied by the law when not
express, that the wrongdoer shall not again commit the offense; and also that he
shall thereafter treat the other spouse with conjugal kindness. A breach of the
condition will revive the original offense as a ground for divorce. Condonation may be
express or implied.

It has been held in a long line of decisions of the various supreme courts of the different
states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse
after discovery of the offense is ordinarily sufficient to constitute condonation, especially as
against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above
quoted, and of the various decisions above-cited, the inevitable conclusion is that the present
action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to
constitute condonation, and where the parties live in the same house, it is presumed that
they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after
it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S.
E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of
marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to
the contrary, from the fact of the living together as husband and wife, especially as against
the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation
as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss,
because in the second ground of the motion to dismiss. It is true that it was filed after the answer
and after the hearing had been commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of
the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with
costs against appellant. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia,
JJ., concur.

G.R. No. 196842 October 9, 2013

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.

DECISION

PEREZ, J.:

Before us is a petition for certiorari seeking to annul and set aside the Resolution of the Ombudsman
dated 17 April 20091 and Order dated October 2010,2 which directed the tiling of an Information for
Concubinage under Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A.
Busuego (Alfredo).

We chronicle the facts thus.

Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334
of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the
Office of the Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.

In her complaint, Rosa painted a picture of a marriage in disarray.

She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union
was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in
1983, their marriage turned sour. At this time, Rosa unearthed photographs of, and love letters
addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed ignorance of the
existence of these letters and innocence of any wrongdoing.

Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home
late at night on weekdays and head early to work the next day; his weekends were spent with his
friends, instead of with his family. Rosa considered herself lucky if their family was able to spend a
solid hour with Alfredo.

Around this time, an opportunity to work as nurse in New York City, United States of America (US)
opened up for Rosa. Rosa informed Alfredo, who vehemently opposed Rosa’s plan to work abroad.
Nonetheless, Rosa completed the necessary requirements to work in the US and was scheduled to
depart the Philippines in March 1985.

Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working
abroad. Furious with Rosa’s pressing, Alfredo took his loaded gun and pointed it at Rosa’s right
temple, threatening and taunting Rosa to attempt to leave him and their family. Alfredo was only
staved off because Rosa’s mother arrived at the couple’s house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.

Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa
became homesick and was subsequently joined by her children who were brought to the US by
Alfredo. Rosa singularly reared them: Alfred, from grade school to university, while Robert, upon
finishing high school, went back to Davao City to study medicine and lived with Alfredo.

During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was
Rosa who would remit money to Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao City.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home.
When Rosa asked Alfredo, the latter explained that Sia was a nurse working at the Regional
Hospital in Tagum who was in a sorry plight as she was allegedly being raped by Rosa’s brother-in-
law. To get her out of the situation, Alfredo allowed Sia to live in their house and sleep in the maids’
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.

In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships. Robert, who was
already living in Davao City, called Rosa to complain of Alfredo’s illicit affairs and shabby treatment
of him. Rosa then rang up Alfredo which, not surprisingly, resulted in an altercation. Robert executed
an affidavit, corroborating his mother’s story and confirming his father’s illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia slept
with his father in the conjugal bedroom.

2. He did not inform his mother of that odd arrangement as he did not want to bring trouble to
their family.

3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s mistress.

4. During this period of concubinage, Sia was hospitalized and upon her discharge, she and
Alfredo resumed their cohabitation.

5. The relationship between Alfredo and Sia ended only when the latter found another
boyfriend. 6. His father next took up an affair with Julie de Leon (de Leon) whom Robert met
when de Leon fetched Alfredo on one occasion when their vehicle broke down in the middle
of the road.

7. Robert read various Short Message Service (SMS) exchanges between Julie and Alfredo
on Alfredo’s mobile phone.

8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and Alfredo’s conjugal
dwelling and stayed in the conjugal room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint
affidavit in support of Rosa’s allegations:

1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.

2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and slept
overnight with Alfredo in the conjugal room.

As a result, Rosa and their other son Alfred forthwith flew to Davao City without informing Alfredo of
their impending return. Upon Rosa’s return, she gathered and consolidated information on her
husband’s sexual affairs.

Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averred that
during the course of their marriage, apart from the marital infidelity, Alfredo physically and verbally
abused her and her family. On one occasion after Rosa confirmed the affairs, Alfredo threatened
their family, including other members of their household that he will gun them down should he
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly dismissed house
helper Liza Diambangan and threatened her.

As expected, Alfredo, in his counter-affidavit, denied all accusations against him and alleged that:

1. Rosa, despite his pleas for them to remain and raise their family in the Philippines, chose
to live in the US, separate from him.

2. Rosa’s allegations that he had kept photographs of, and love letters from, other women,
were only made to create a cause of action for the suit for Legal Separation which Rosa filed
sometime in 1998.

3. It was highly improbable that he committed acts of concubinage with Sia and de Leon
since from the time he became Chief of Hospital of the Davao Regional Hospital in Tagum
City, he practically stayed all days of the work week in the hospital. The instances he went
home were few and far between, only to check on the house and provide for household
expenses.

4. When Robert returned to Davao City and lived with him, it became more impossible for
him to have shacked up with Sia and de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without admitting to anything, that Sia, for
a time, may have lived in his and Rosa’s conjugal house, staying at the maids’ quarters.
However, at no instance did he keep Sia as his mistress in the conjugal dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayed
with de Leon in the conjugal room, Alfredo pointed out that said dates were busiest days of
the year in the hospital where his presence as Chief of Hospital is most required.

7. By Rosa’s own admission, she first learned of Alfredo’s alleged concubinage in 1997, and
yet she still continued with her yearly visits to Alfredo in Davao City. Those instances ought
to be construed as condonation of the concubinage.
 8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with
Alfredo as party-respondents in the complaint in violation of Article 344 of the Revised Penal
Code.

Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262 and Grave Threats.
He claimed that, at no time, did he threaten, the lives or, to harm his wife, their family and members
of their household. He only berated the help for perpetrating gossip about his behavior and conduct.

In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo’s culpability, and
naturally, Alfredo claimed innocence.

In the course thereof, the procedural issue of Rosa’s failure to implead Sia and de Leon as
respondents cropped up. Alfredo insisted that Rosa’s complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both
Rosa and Alfredo were represented by their respective counsels:

x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for
Concubinage pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to the
amendment of the complaint, at this point in time, due to the alleged procedural lapse committed by
Rosa, this Office explained to the parties that the position of Alfredo would just prolong the conduct
of the preliminary investigation since Rosa can just re-file her complaint. The doctrine of res judicata
does not apply in the preliminary investigation stage. Hence, the counsel for Rosa was directed to
submit to this Office the addresses of the alleged mistresses so that they could be served with the
Order directing them to file their counter-affidavits.

Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy
Sia. x x x.3

On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-
respondents in the complaint for Concubinage and directing them to submit their respective counter-
affidavits within a period of time. Copies of the Joint Order were mailed to Sia’s and de Leon’s last
known addresses, as provided by Rosa to the Ombudsman.

Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to
Sia’s last known address was returned to the Ombudsman with the notation on the Registry Return
Receipt No. 1624 "Return to Sender; removed," while a copy thereof to de Leon was received on 3
September 2008 by Ananias de Leon.5

Apparently still opposed to the Ombudsman’s ruling to simply amend the complaint and implead
therein Alfredo’s alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with
Motion to Dismiss and/or Refer the charges to the Appropriate Provincial/City Prosecutor6 praying for
dismissal of the complaint for: (1) failure to implead the two mistresses in violation of Article 344 of
the Revised Penal Code; and in the alternative, (2) referral of the complaint to the Office of the City
Prosecutor as provided in OMB-DOJ Circular No. 95-001.

Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the
procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary
issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory
pleading by resorting to a procedural short cut which would result to the delay in the disposition of
this case; and 2.) the criminal charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case pursuant to OMB-DOJ Joint
Circular No. 95-001, Series of 1995.

On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit
the alleged deficiency in the complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She averred that this Office is empowered
to investigate and prosecute any act or omission of a public official or employee to the exclusion of
non-government employees. She stated that the inclusion of the alleged concubines in the
Information to be filed in court is a matter of procedure, within the competence of the investigating
prosecutor.

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings.

On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor
was belatedly filed. Record would show that the motion praying for the referral of this case to the
Office of the City Prosecutor was filed on 17 July 2008, after the parties have already filed all their
pleadings and the case is now ripe for resolution. Further, referral to the said office is not mandatory
as cited in the said Joint Circular.7

In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and
Sia of Concubinage and directed the filing of an Information against them in the appropriate court:

WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article
334 of the Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y
ABRIO, and EMY SIA, are probably guilty thereof.

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.)
Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against
Women and Children Act), are hereby DISMISSED for lack of merit.8

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s ruling on the
automatic inclusion of Sia as respondent in the complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosa’s complaint should have, at the outset, impleaded his
alleged concubines. Failing such, the Ombudsman cannot resort to automatic inclusion of party-
respondents, erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosa’s own allegations, she had condoned or pardoned
Alfredo’s supposed concubinage. Alfredo likewise submitted Liza S. Diambangan’s affidavit,
recanting her previous affidavit corroborating Rosa’s charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for
Reconsideration was filed out of time, and gave scant attention to Liza S. Diambangan’s affidavit of
recantation:

WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby
DENIED. The findings in the questioned Resolution hereby remains undisturbed. Let the Information
for Concubinage be filed in the proper court against herein Busuego.9

Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the
Ombudsman’s finding of probable cause to indict him and Sia for Concubinage. Alfredo’s badges of
grave abuse of discretion are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the
complaint;

2. The Ombudsman did not refer the complaint to the Department of Justice, considering that
the offense of Concubinage is not committed in relation to his office as Chief of Hospital;

3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s supposed Concubinage

when she alleged in the complaint that she had known of Alfredo’s womanizing and believed
him to have changed his ways;

4. The Ombudsman did not take into consideration the affidavit of recantation of Liza
Diambangan; and

5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.

We sustain the Ombudsman.

The Ombudsman has full discretionary authority in the determination of probable cause during a
preliminary investigation.10 This is the reason why judicial review of the resolution of the Ombudsman
in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment
for that of the Ombudsman.11

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction.12 The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.

First. Alfredo insists that the Ombudsman’s automatic inclusion, over his vehement objections of Sia
and de Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5,
Rule 110 of the Rules of Court, which respectively provide:

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

Section 5. Who must prosecute criminal action. – xxx.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or
pardoned the offenders.

We do not agree.

The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions
of its Rules of Procedure. Thus:

Rule II
PROCEDURE IN CRIMINAL CASES

xxxx

Section 2. Evaluation – Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

xxxx

Section 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:

a) x x x

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.
 c) If the respondents does not file a counter-affidavit, the investigating officer may consider
the comment filed by him, if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.

Neither may a motion for a bill of particulars be entertained.

If respondent desires any matter in the complainant’s affidavit to be clarified, the

particularization thereof may be done at the time of the clarificatory questioning in the
manner provided in paragraph (f) of this section.

e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases. (Emphasis supplied).

Notably, Rosa’s complaint contained not just the Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the Ombudsman’s perusal, the complaint was
supported by affidavits corroborating Rosa’s accusations. Thus, at that stage, the Ombudsman
properly referred the complaint to Alfredo for comment. Nonetheless, while the Ombudsman found
no reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to discuss the
applicability of Article 344 of the Revised Penal Code, the issue having been insisted upon by
Alfredo.

Surely the procedural sequence of referral of the complaint to respondent for comment and
thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and
paragraphs d and f, Section 4 of Rule II, which we have at the outset underscored. Thus did the
Ombudsman rule:

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings.14

The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out
by Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the complaint
when amendment thereof is allowed by its Rules of Procedure15 and the Rules of Court.16

Second. Alfredo claims that the Ombudsman should have referred Rosa’s complaint to the
Department of Justice (DOJ), since the crime of Concubinage is not committed in relation to his
being a public officer. This is not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without regard to its commission in relation to office,
had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ,17 and
affirmed in subsequent cases:

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan
Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other government investigating agencies
such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases
against public officers involving violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary
jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent
jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the
conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE

OMBUDSMAN

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY

PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES,

THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS
AND THEIR ASSISTANTS.

x---------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, discussion centered around the latest pronouncement of the SUPREME COURT on the
extent to which the OMBUDSMAN may call upon the government prosecutors for assistance in the
investigation and prosecution of criminal cases cognizable by his office and the conditions under
which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "AN ACT TO
STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS
AMENDED" and its implications on the jurisdiction of the office of the Ombudsman on criminal
offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on

jurisdiction between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and
by procedural conflicts in the filing of complaints against public officers and employees, the conduct
of preliminary investigations, the preparation of resolutions and informations, and the prosecution of
cases by provincial and city prosecutors and their assistants as DEPUTIZED PROSECUTORS OF
THE OMBUDSMAN.

Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, in a series of consultations, have agreed on the following guidelines to be observed in the
investigation and prosecution of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and

employees IN RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN or the
REGULAR COURTS, and whether filed with the OFFICE OF THE OMBUDSMAN or with the
OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under the control and
supervision of the office of the OMBUDSMAN.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe
otherwise, offenses NOT IN RELATION TO OFFICE and cognizable by the REGULAR
COURTS shall be investigated and prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer

who conducted the preliminary investigation. Resolutions recommending prosecution
together with the duly accomplished criminal informations shall be forwarded to the
appropriate approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over public officers
and employees and for effective monitoring of all investigations and prosecutions of cases
involving public officers and employees, the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall submit to the OFFICE OF THE OMBUDSMAN a monthly list of
complaints filed with their respective offices against public officers and employees.

xxxx

A close examination of the circular supports the view of the respondent Ombudsman that it is just an
internal agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations –

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the
complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of
such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the

prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same Rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal
complaints filed with them for offenses cognizable by the proper court within their respective
territorial jurisdictions, including those offenses which come within the original jurisdiction of the
Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their
resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot
dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can
the prosecutor file an Information with the Sandiganbayan without being deputized by, and without
prior written authority of the Ombudsman or his deputy.

xxxx

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges
against any public officers or employees may be exercised by an investigator or by any provincial or
city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the
OMB-DOJ circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by
the Ombudsman to conduct the preliminary investigation for complaints filed with it because the
DOJ’s authority to act as the principal law agency of the government and investigate the commission
of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case citation omitted as not being contrary to the Constitution. Thus, there
is not even a need to delegate the conduct of the preliminary investigation to an agency which has
the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation. (Emphasis supplied).

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged
with coup d’etat for the occupation of Oakwood on 27 July 2003, the preliminary investigation
therefor was conducted by the DOJ. Honasan questioned the jurisdiction of the DOJ to do so,
proferring that it was the Ombudsman which had jurisdiction since the imputed acts were committed
in relation to his public office. We clarified that the DOJ and the Ombudsman have concurrent
jurisdiction to investigate offenses involving public officers or employees. Nonetheless, we pointed
out that the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the Ombudsman has primary
jurisdiction, albeit concurrent with the DOJ, over Rosa’s complaint, and after choosing to exercise
such jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In
other words, the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.

Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of
his womanizing and yet continuing with their relationship as demonstrated in Rosa’s annual visits to
him in Davao City.

We are not convinced.

Old jurisprudence has held that the cynosure in the question of whether the wife condoned the
concubinage lies in the wife’s "line of conduct under the assumption that she really believed [her
husband] guilty of concubinage:"

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the ‘conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed.’

xxxx

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed ‘acts
of rank infidelity amounting to adultery’ committed by defendant-wife. Admitting for the sake of
argument that the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to
come along with him, and the fact that she went with him and consented to be brought to the house
of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and
one night, and the further fact that in the second night they again slept together in their house
likewise as husband and wife — all these facts have no other meaning in the opinion of this court
than that a reconciliation between them was effected and that there was a condonation of the wife by
the husband. The reconciliation occurred almost ten months after he came to know of the acts of
infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that ‘condonation is
implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong.’

In Tiffany’s Domestic and Family Relations, section 107 says:

‘Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.’

It has been held in a long line of decisions of the various supreme courts of the different states of the
U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the
offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27
Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and
of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).18

Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the
holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosa’s
admission was that she believed her husband had stopped womanizing, not that she had knowledge
of Alfredo’s specific acts of concubinage with Sia and de Leon, specifically keeping them in the
conjugal dwelling. This admission set against the specific acts of concubinage listed in Article
33419 of the Revised Penal Code does not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s
relations with his concubines. On that score, we have succinctly held:

We can find nothing in the record which can be construed as pardon or condonation. It is true that
the offended party has to a considerable extent been patient with her husband's shortcomings, but
that seems to have been due to his promises of improvement; nowhere does it appear that she has
consented to her husband's immorality or that she has acquiesced in his relations with his
concubine.20

Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to eliminate his probable
culpability for concubinage.

Again, we are not swayed by Alfredo’s asseverations.

We have generally looked with disfavor upon retraction of testimonies previously given in court.
Affidavits of recantation are unreliable and deserve scant consideration. The asserted motives for
the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit
of repudiation are frequently and deservedly subject to serious doubt.21

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false and that what he now says is true,
is not sufficient ground for concluding that the previous testimony is false. No such reasoning has
ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous
contradictory statement x x x not that a previous statement is presumed to be false merely because
a witness now says that the same is not true. The jurisprudence of this Court has always been
otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the
previous testimony if the contradictions are satisfactorily explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court
of justice in an open and free trial and under conditions precisely sought to discourage and forestall
falsehood simply because one of the witnesses who had given the testimony later on changed his
mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the
mercy of unscrupulous witnesses. Unless there be special circumstances which, coupled with the
retraction of the witness, really raise doubt as to the truth of the testimony given by him at the trial
and accepted by the trial judge, and only if such testimony is essential to the judgment of conviction,
or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused
based on such a retraction would not be justified.22

In this case, Liza S. Diambangan’s testimony merely corroborates the still standing story of Robert
and Melissa Diambangan, the other helper in the Busuego household. Clearly, the two’s consistent
story may still be the basis of the Ombudsman’s finding of a prima facie case of concubinage against
Alfredo and Sia.

Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for indicting him
and Sia for concubinage.

Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:

(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; and (3) cohabiting with a woman who is not his
wife in any other place.

The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of
Robert, Melissa S. Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal
dwelling where Sia even stayed at the conjugal room. We completely agree with the Ombudsman’s
disquisition:

x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family and
would strive to keep the family harmonious and united. This is the very reason why Robert did not
inform his mother about his father’s infidelities during the time when his father was keeping his
mistress at the conjugal dwelling. A son would never turn against his father by fabricating such a
serious story which will cause his home to crumble, if such is not true. His natural instinct is to
protect his home, which he did when he kept silent for a long time. What broke the camel’s back was
the abusive treatment he allegedly suffered and the thought that things would change for the better if
his mom would intervene.

The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S. Diambangan
and Liza S. Diambangan, who were employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but returned in 2006. Liza started working
1âwphi 1

with the family in 2002. Melissa revealed that it was Emy Sia who recruited her to work with the
Busuego family. They both attested to the fact that Alfredo and Emy Sia slept together in the
bedroom of Alfredo but Emy Sia would sleep in the maid’s quarter when Rosa and Alfred came
home for a visit in 1997. They recalled that Emy Sia calls Alfredo "papa". They narrated that Emy Sia
would even confide to them some private matters relating to her sexual proclivities with Alfredo.23

We further note that the presence of Sia at the Busuego household and her interim residence
thereat was not disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in
the conjugal dwelling, but never as his mistress, and Sia supposedly slept in the maids’ quarters.

While such a claim is not necessarily preposterous we hold that such is a matter of defense which
Alfredo should raise in court given that Rosa s complaint and its accompanying affidavits have
created a prima facie case for Concubinage against Alfredo and Sia.

WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009
and 11 October 2010 are AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,

vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein
plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The
dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided
for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal
separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case.2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.
The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order.3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself — actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
1933, 332.")4 .

Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the
reason that death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule
3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased
party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..

A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper
action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And furthermore,
the liquidation of any conjugal partnership that might have resulted from such voidable marriage
must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

G.R. No. 169900 March 18, 2010

MARIO SIOCHI, Petitioner,

vs.
ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE, INTER-DIMENSIONAL REALTY, INC., and
ELVIRA GOZON, Respondents.

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

G.R. No. 169977

INTER-DIMENSIONAL REALTY, INC., Petitioner,

vs.
MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, and WINIFRED GOZON, Respondents.

RESOLUTION

CARPIO, J.:

This is a consolidation of two separate petitions for review,1 assailing the 7 July 2005 Decision2 and
the 30 September 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 74447.

This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357.4 The property
is situated in Malabon, Metro Manila and is registered in the name of "Alfredo Gozon (Alfredo),
married to Elvira Gozon (Elvira)."

On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a petition
for legal separation against her husband Alfredo. On 2 January 1992, Elvira filed a notice of lis
pendens, which was then annotated on TCT No. 5357.

On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario Siochi
(Mario) entered into an Agreement to Buy and Sell5 (Agreement) involving the property for the price
of ₱18 million. Among the stipulations in the Agreement were that Alfredo would: (1) secure an
Affidavit from Elvira that the property is Alfredo’s exclusive property and to annotate the Agreement
at the back of TCT No. 5357; (2) secure the approval of the Cavite RTC to exclude the property from
the legal separation case; and (3) secure the removal of the notice of lis pendens pertaining to the
said case and annotated on TCT No. 5357. However, despite repeated demands from Mario, Alfredo
failed to comply with these stipulations. After paying the ₱5 million earnest money as partial payment
of the purchase price, Mario took possession of the property in September 1993. On 6 September
1993, the Agreement was annotated on TCT No. 5357.

Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision6 in the legal separation case, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and
respondent. Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from
respondent Alfredo Gozon without dissolution of their marriage bond. The conjugal partnership of
gains of the spouses is hereby declared DISSOLVED and LIQUIDATED. Being the offending
spouse, respondent is deprived of his share in the net profits and the same is awarded to their child
Winifred R. Gozon whose custody is awarded to petitioner.

Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her
needs arises.

SO ORDERED.7

As regards the property, the Cavite RTC held that it is deemed conjugal property.

On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their
daughter, Winifred Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled TCT
No. 5357 and issued TCT No. M-105088 in the name of Winifred, without annotating the Agreement
and the notice of lis pendens on TCT No. M-10508.

On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney9 executed in his favor by
Winifred, sold the property to Inter-Dimensional Realty, Inc. (IDRI) for ₱18 million.10 IDRI paid Alfredo
₱18 million, representing full payment for the property.11 Subsequently, the Register of Deeds of
Malabon cancelled TCT No. M-10508 and issued TCT No. M-1097612 to IDRI.

Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for Specific
Performance and Damages, Annulment of Donation and Sale, with Preliminary Mandatory and
Prohibitory Injunction and/or Temporary Restraining Order.

On 3 April 2001, the Malabon RTC rendered a decision,13 the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

01. On the preliminary mandatory and prohibitory injunction:

1.1 The same is hereby made permanent by:

1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-

Dimensional Realty, Inc. and Gil Tabije, their agents, representatives and all
 persons acting in their behalf from any attempt of commission or continuance
of their wrongful acts of further alienating or disposing of the subject property;

1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from entering and

fencing the property;

1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-

Dimensional Realty, Inc. to respect plaintiff’s possession of the property.

02. The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant
Alfredo Gozon is hereby approved, excluding the property and rights of defendant Elvira
Robles-Gozon to the undivided one-half share in the conjugal property subject of this case.

03. The Deed of Donation dated 22 August 1994, entered into by and between defendants
Alfredo Gozon and Winifred Gozon is hereby nullified and voided.

04. The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred
Gozon, through defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty,
Inc. is hereby nullified and voided.

05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer
Certificate of Title No. M-10976 to the Register of Deeds of Malabon, Metro Manila.

06. The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel Certificate
of Title Nos. 10508 "in the name of Winifred Gozon" and M-10976 "in the name of Inter-
Dimensional Realty, Inc.," and to restore Transfer Certificate of Title No. 5357 "in the name
of Alfredo Gozon, married to Elvira Robles" with the Agreement to Buy and Sell dated 31
August 1993 fully annotated therein is hereby ordered.

07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor of
plaintiff over his one-half undivided share in the subject property and to comply with all the
requirements for registering such deed.

08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling price
of her undivided one-half share in the subject property, thereafter, to execute and deliver a
Deed of Absolute Sale over the same in favor of the plaintiff and to comply with all the
requirements for registering such deed, within fifteen (15) days from the receipt of this
DECISION.

09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of
Four Million Pesos (₱4,000,000.00) in his one-half undivided share in the property to be set
off by the award of damages in plaintiff’s favor.

10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they had
agreed upon for the sale of her one-half undivided share in the subject property.

11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay the
plaintiff, jointly and severally, the following:

11.1 Two Million Pesos (₱2,000,000.00) as actual and compensatory damages;

 11.2 One Million Pesos (₱1,000,000.00) as moral damages;

11.3 Five Hundred Thousand Pesos (₱500,000.00) as exemplary damages;

11.4 Four Hundred Thousand Pesos (₱400,000.00) as attorney’s fees; and

11.5 One Hundred Thousand Pesos (₱100,000.00) as litigation expenses.

11.6 The above awards are subject to set off of plaintiff’s obligation in paragraph 9
hereof.

12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay Inter-
Dimensional Realty, Inc. jointly and severally the following:

12.1 Eighteen Million Pesos (₱18,000,000.00) which constitute the amount the
former received from the latter pursuant to their Deed of Absolute Sale dated 26
October 1994, with legal interest therefrom;

12.2 One Million Pesos (₱1,000,000.00) as moral damages;

12.3 Five Hundred Thousand Pesos (₱500,000.00) as exemplary damages; and

12.4 One Hundred Thousand Pesos (₱100,000.00) as attorney’s fees.

13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of suit.

SO ORDERED.14

On appeal, the Court of Appeals affirmed the Malabon RTC’s decision with modification. The
dispositive portion of the Court of Appeals’ Decision dated 7 July 2005 reads:

WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC, Branch
74, Malabon is hereby AFFIRMED with MODIFICATIONS, as follows:

1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is
declared null and void for the following reasons:

a) The conveyance was done without the consent of defendant-appellee Elvira

Gozon;

b) Defendant Alfredo Gozon’s one-half (½) undivided share has been forfeited in
favor of his daughter, defendant Winifred Gozon, by virtue of the decision in the legal
separation case rendered by the RTC, Branch 16, Cavite;

2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount of ₱5

Million which the latter paid as earnest money in consideration for the sale of the subject
land;

3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay
plaintiff-appellant Siochi jointly and severally, the following:
 a) ₱100,000.00 as moral damages;

b) ₱100,000.00 as exemplary damages;

c) ₱50,000.00 as attorney’s fees;

d) ₱20,000.00 as litigation expenses; and

e) The awards of actual and compensatory damages are hereby ordered deleted for
lack of basis.

4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendant-
appellant IDRI jointly and severally the following:

a) ₱100,000.00 as moral damages;

b) ₱100,000.00 as exemplary damages; and

c) ₱50,000.00 as attorney’s fees.

Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon was
awarded, is hereby given the option whether or not to dispose of her undivided share in the subject
land.

The rest of the decision not inconsistent with this ruling stands.

SO ORDERED.15

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario alleges that
the Agreement should be treated as a continuing offer which may be perfected by the acceptance of
the other spouse before the offer is withdrawn. Since Elvira’s conduct signified her acquiescence to
the sale, Mario prays for the Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale
over the property upon his payment of ₱9 million to Elvira.

On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI prays that
the Court should uphold the validity of IDRI’s TCT No. M-10976 over the property.

We find the petitions without merit.

This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the property
occurred after the effectivity of the Family Code, the applicable law is the Family Code. Article 124 of
the Family Code provides:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to the
recourse to the court by the wife for a proper remedy, which must be availed of within five years from
the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration
of the conjugal properties, the other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance which must have the authority of
the court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected as
a binding contract upon the acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (Emphasis supplied)

In this case, Alfredo was the sole administrator of the property because Elvira, with whom Alfredo
was separated in fact, was unable to participate in the administration of the conjugal property.
However, as sole administrator of the property, Alfredo still cannot sell the property without the
written consent of Elvira or the authority of the court. Without such consent or authority, the sale is
void.16 The absence of the consent of one of the spouse renders the entire sale void, including the
portion of the conjugal property pertaining to the spouse who contracted the sale.17 Even if the other
spouse actively participated in negotiating for the sale of the property, that other spouse’s written
consent to the sale is still required by law for its validity.18 The Agreement entered into by Alfredo
and Mario was without the written consent of Elvira. Thus, the Agreement is entirely void. As regards
Mario’s contention that the Agreement is a continuing offer which may be perfected by Elvira’s
acceptance before the offer is withdrawn, the fact that the property was subsequently donated by
Alfredo to Winifred and then sold to IDRI clearly indicates that the offer was already withdrawn.

However, we disagree with the finding of the Court of Appeals that the one-half undivided share of
Alfredo in the property was already forfeited in favor of his daughter Winifred, based on the ruling of
the Cavite RTC in the legal separation case. The Court of Appeals misconstrued the ruling of the
Cavite RTC that Alfredo, being the offending spouse, is deprived of his share in the net profits and
the same is awarded to Winifred.

The Cavite RTC ruling finds support in the following provisions of the Family Code:

Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds
shall not be severed;

(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership, which shall be
forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and

The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce
the following effects:

xxx
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share
of the net profits of the community property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse; (Emphasis supplied)

Thus, among the effects of the decree of legal separation is that the conjugal partnership is
dissolved and liquidated and the offending spouse would have no right to any share of the net profits
earned by the conjugal partnership. It is only Alfredo’s share in the net profits which is forfeited in
favor of Winifred. Article 102(4) of the Family Code provides that "[f]or purposes of computing the net
profits subject to forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its dissolution." Clearly, what is
forfeited in favor of Winifred is not Alfredo’s share in the conjugal partnership property but merely in
the net profits of the conjugal partnership property.

With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer in good
faith. As found by the RTC Malabon and the Court of Appeals, IDRI had actual knowledge of facts
and circumstances which should impel a reasonably cautious person to make further inquiries about
the vendor’s title to the property. The representative of IDRI testified that he knew about the
existence of the notice of lis pendens on TCT No. 5357 and the legal separation case filed before
the Cavite RTC. Thus, IDRI could not feign ignorance of the Cavite RTC decision declaring the
property as conjugal.

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

Besides, had IDRI been more prudent before buying the property, it would have discovered that
Alfredo’s donation of the property to Winifred was without the consent of Elvira. Under Article
12520 of the Family Code, a conjugal property cannot be donated by one spouse without the consent
of the other spouse. Clearly, IDRI was not a buyer in good faith. 1avvphi1

Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the reimbursement of
the ₱18 million paid by IDRI for the property, which was inadvertently omitted in the dispositive
portion of the Court of Appeals’ decision.

WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of
Appeals in CA-G.R. CV No. 74447 with the following MODIFICATIONS:

(1) We DELETE the portions regarding the forfeiture of Alfredo Gozon’s one-half undivided
share in favor of Winifred Gozon and the grant of option to Winifred Gozon whether or not to
dispose of her undivided share in the property; and

(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc.
jointly and severally the Eighteen Million Pesos (₱18,000,000) which was the amount paid by
Inter-Dimensional Realty, Inc. for the property, with legal interest computed from the finality
of this Decision.
SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

G.R. NO. 155409 June 8, 2007

VIRGILIO MAQUILAN, petitioner,

vs.
DITA MAQUILAN, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing
the Decision1 dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No.
69689, which affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the
Regional Trial Court (RTC), Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated
January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656.

The facts of the case, as found by the CA, are as follows:

Herein petitioner and herein private respondent are spouses who once had a blissful married life and
out of which were blessed to have a son. However, their once sugar coated romance turned bitter
when petitioner discovered that private respondent was having illicit sexual affair with her paramour,
which thus, prompted the petitioner to file a case of adultery against private respondent and the
latter’s paramour. Consequently, both the private respondent and her paramour were convicted of
the crime charged and were sentenced to suffer an imprisonment ranging from one (1) year, eight
(8) months, minimum of prision correccional as minimum penalty, to three (3) years, six (6) months
and twenty one (21) days, medium of prision correccional as maximum penalty.
Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage,
Dissolution and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with
the Regional Trial Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No.
656, imputing psychological incapacity on the part of the petitioner.

During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE
AGREEMENT in the following terms, to wit:

1. In partial settlement of the conjugal partnership of gains, the parties agree to the following:

a. ₱500,000.00 of the money deposited in the bank jointly in the name of the spouses shall be
withdrawn and deposited in favor and in trust of their common child, Neil Maquilan, with the deposit
in the joint account of the parties.

The balance of such deposit, which presently stands at ₱1,318,043.36, shall be withdrawn and
divided equally by the parties;

b. The store that is now being occupied by the plaintiff shall be allotted to her while the bodega shall
be for the defendant. The defendant shall be paid the sum of ₱50,000.00 as his share in the stocks
of the store in full settlement thereof.

The plaintiff shall be allowed to occupy the bodega until the time the owner of the lot on which it
stands shall construct a building thereon;

c. The motorcycles shall be divided between them such that the Kawasaki shall be owned by the
plaintiff while the Honda Dream shall be for the defendant;

d. The passenger jeep shall be for the plaintiff who shall pay the defendant the sum of ₱75,000.00
as his share thereon and in full settlement thereof;

e. The house and lot shall be to the common child.

2. This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties
that have not been mentioned;

xxxx

The said Compromise Agreement was given judicial imprimatur by the respondent judge in the
assailed Judgment On Compromise Agreement, which was erroneously dated January 2, 2002.2

However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of
the Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by
the respondent judge on the grounds that his previous lawyer did not intelligently and judiciously
apprise him of the consequential effects of the Compromise Agreement.

The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned
Omnibus Motion.

Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was
denied in the assailed Order dated February 7, 2002.3 (Emphasis supplied)
The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of
Court claiming that the RTC committed grave error and abuse of discretion amounting to lack or
excess of jurisdiction (1) in upholding the validity of the Compromise Agreement dated January 11,
2002; (2) when it held in its Order dated February 7, 2002 that the Compromise Agreement was
made within the cooling-off period; (3) when it denied petitioner’s Motion to Repudiate Compromise
Agreement and to Reconsider Its Judgment on Compromise Agreement; and (4) when it conducted
the proceedings without the appearance and participation of the Office of the Solicitor General
and/or the Provincial Prosecutor.4

On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction
of the respondent of the crime of adultery does not ipso facto disqualify her from sharing in the
conjugal property, especially considering that she had only been sentenced with the penalty of
prision correccional, a penalty that does not carry the accessory penalty of civil interdiction which
deprives the person of the rights to manage her property and to dispose of such property inter vivos;
that Articles 43 and 63 of the Family Code, which pertain to the effects of a nullified marriage and the
effects of legal separation, respectively, do not apply, considering, too, that the Petition for the
Declaration of the Nullity of Marriage filed by the respondent invoking Article 36 of the Family Code
has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family Code;
that, although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in
the instant case since no petition to that effect was filed by the petitioner against the respondent; that
the spouses voluntarily separated their property through their Compromise Agreement with court
approval under Article 134 of the Family Code; that the Compromise Agreement, which embodies
the voluntary separation of property, is valid and binding in all respects because it had been
voluntarily entered into by the parties; that, furthermore, even if it were true that the petitioner was
not duly informed by his previous counsel about the legal effects of the Compromise Agreement, this
point is untenable since the mistake or negligence of the lawyer binds his client, unless such mistake
or negligence amounts to gross negligence or deprivation of due process on the part of his client;
that these exceptions are not present in the instant case; that the Compromise Agreement was
plainly worded and written in simple language, which a person of ordinary intelligence can discern
the consequences thereof, hence, petitioner’s claim that his consent was vitiated is highly incredible;
that the Compromise Agreement was made during the existence of the marriage of the parties since
it was submitted during the pendency of the petition for declaration of nullity of marriage; that the
application of Article 2035 of the Civil Code is misplaced; that the cooling-off period under Article 58
of the Family Code has no bearing on the validity of the Compromise Agreement; that the
Compromise Agreement is not contrary to law, morals, good customs, public order, and public
policy; that this agreement may not be later disowned simply because of a change of mind; that the
presence of the Solicitor General or his deputy is not indispensable to the execution and validity of
the Compromise Agreement, since the purpose of his presence is to curtail any collusion between
the parties and to see to it that evidence is not fabricated, and, with this in mind, nothing in the
Compromise Agreement touches on the very merits of the case of declaration of nullity of marriage
for the court to be wary of any possible collusion; and, finally, that the Compromise Agreement is
merely an agreement between the parties to separate their conjugal properties partially without
prejudice to the outcome of the pending case of declaration of nullity of marriage.

Hence, herein Petition, purely on questions of law, raising the following issues:

I.

WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN

STILL SHARE IN THE CONJUGAL PARTNERSHIP;

II
WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF
WHOM WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE
CONJUGAL PROPERTY, VALID AND LEGAL;

III

WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-

REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE
DISQUALIFIED AND PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY;

IV

WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY

FROM SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL INTERDICTION.5

The petitioner argues that the Compromise Agreement should not have been given judicial
imprimatur since it is against law and public policy; that the proceedings where it was approved is
null and void, there being no appearance and participation of the Solicitor General or the Provincial
Prosecutor; that it was timely repudiated; and that the respondent, having been convicted of
adultery, is therefore disqualified from sharing in the conjugal property.

The Petition must fail.

The essential question is whether the partial voluntary separation of property made by the spouses
pending the petition for declaration of nullity of marriage is valid.

First. The petitioner contends that the Compromise Agreement is void because it circumvents the
law that prohibits the guilty spouse, who was convicted of either adultery or concubinage, from
sharing in the conjugal property. Since the respondent was convicted of adultery, the petitioner
argues that her share should be forfeited in favor of the common child under Articles 43(2)6 and
637 of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from
sharing in the conjugal property; and because the Compromise Agreement is void, it never became
final and executory.

Moreover, the petitioner cites Article 20358 of the Civil Code and argues that since adultery is a
ground for legal separation, the Compromise Agreement is therefore void.

These arguments are specious. The foregoing provisions of the law are inapplicable to the instant
case.

Article 43 of the Family Code refers to Article 42, to wit:

Article 42. The subsequent marriage referred to in the preceding Article9 shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil
registry of the residence of the parties to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact
of reappearance being judicially determined in case such fact is disputed.

where a subsequent marriage is terminated because of the reappearance of an absent spouse;

while Article 63 applies to the effects of a decree of legal separation. The present case involves a
proceeding where the nullity of the marriage is sought to be declared under the ground of
psychological capacity.

Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially
divided the properties of the conjugal partnership of gains between the parties and does not deal
with the validity of a marriage or legal separation. It is not among those that are expressly prohibited
by Article 2035.

Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the
law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law
and jurisprudence do not impose such disqualification.

Under Article 143 of the Family Code, separation of property may be effected voluntarily or for
sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was
judicially approved is exactly such a separation of property allowed under the law. This conclusion
holds true even if the proceedings for the declaration of nullity of marriage was still pending.
However, the Court must stress that this voluntary separation of property is subject to the rights of all
creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to
Article 136 of the Family Code.

Second. Petitioner’s claim that since the proceedings before the RTC were void in the absence of
the participation of the provincial prosecutor or solicitor, the voluntary separation made during the
pendency of the case is also void. The proceedings pertaining to the Compromise Agreement
involved the conjugal properties of the spouses. The settlement had no relation to the questions
surrounding the validity of their marriage. Nor did the settlement amount to a collusion between the
parties.

Article 48 of the Family Code states:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed. (Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x

xxxx

(e) Where no defaults allowed.— If the defending party in action for annulment or declaration of
nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties exists if there is no collusion,
to intervene for the State in order to see to it that the evidence submitted is not fabricated.
(Emphasis supplied
Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to
ensure that the interest of the State is represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or
suppression of evidence.10 While the appearances of the Solicitor General and/or the Public
Prosecutor are mandatory, the failure of the RTC to require their appearance does not per se nullify
the Compromise Agreement. This Court fully concurs with the findings of the CA:

x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor
General and/or State prosecutor in all proceedings of legal separation and annulment or declaration
of nullity of marriage is to curtail or prevent any possibility of collusion between the parties and to
see to it that their evidence respecting the case is not fabricated. In the instant case, there is no
exigency for the presence of the Solicitor General and/or the State prosecutor because as already
stated, nothing in the subject compromise agreement touched into the very merits of the case of
declaration of nullity of marriage for the court to be wary of any possible collusion between the
parties. At the risk of being repetiti[ve], the compromise agreement pertains merely to an agreement
between the petitioner and the private respondent to separate their conjugal properties partially
without prejudice to the outcome of the pending case of declaration of nullity of marriage.11

Third. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the
Revised Penal Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. – Civil interdiction shall deprive the offender during the time of his sentence
of the rights of parental authority, or guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium
and maximum periods. Article 333 should be read with Article 43 of the same Code. The latter
provides:

Art. 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall
carry with it that of suspension from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in
this article although pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the
accessory penalty of civil interdiction which deprives the person of the rights to manage her property
and to dispose of such property inter vivos.

Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the
consequential effects of the compromise agreement, and that, on this basis, he may repudiate the
Compromise Agreement. The argument of the petitioner that he was not duly informed by his
previous counsel about the legal effects of the voluntary settlement is not convincing. Mistake or
vitiation of consent, as now claimed by the petitioner as his basis for repudiating the settlement,
could hardly be said to be evident. In Salonga v. Court of Appeals,12 this Court held:

[I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any
act performed by a lawyer within the scope of his general or implied authority is regarded as an act
of his client. Consequently, the mistake or negligence of petitioners' counsel may result in the
rendition of an unfavorable judgment against them.
Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross
negligence of counsel deprives the client of due process of law, or when its application "results in the
outright deprivation of one's property through a technicality." x x x x13

None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED with
MODIFICATION that the subject Compromise Agreement is VALID without prejudice to the rights of
all creditors and other persons with pecuniary interest in the properties of the conjugal partnership of
gains.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR: