CIVIL LAW REVIEW | Family Code Assignment No.
5|1
1. G.R. No. L-13553 February 23, 1960
JOSE DE OCAMPO, petitioner,
vs.
SERAFINA FLORENCIANO, respondent.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on
the ground of adultery. The court of first instance of Nueva Ecija dismissed
it. The Court of Appeals affirmed, holding there was confession of
judgment, plus condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of
the New Civil Code, which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall cause
the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order
the prosecuting attorney to inquire whether or not a collusion
between the parties exists. If there is no collusion, the prosecuting
attorney shall intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation
was filed. As amended, it described their marriage performed in 1938, and
the commission of adultery by Serafina, in March 1951 with Jose Arcalas,
and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and
pursuant to Art. 101 above, directed the provincial fiscal to investigate
whether or not collusion existed between the parties. The fiscal examined
the defendant under oath, and then reported to the Court that there was
no collusion. The plaintiff presented his evidence consisting of the
testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo
Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that
"plaintiff and defendant were married in April 5, 1938 by a religious
ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and
wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was
betraying his trust by maintaining illicit relations with one Jose Arcalas.
Having found the defendant carrying marital relations with another man
plaintiff sent her to Manila in June 1951 to study beauty culture, where she
stayed for one year. Again, plaintiff discovered that while in the said city
defendant was going out with several other men, aside from Jose Arcalas.
Towards the end of June, 1952, when defendant had finished studying her
course, she left plaintiff and since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit
relations with another man by the name of Nelson Orzame. Plaintiff
signified his intention of filing a petition for legal separation, to which
defendant manifested her conformity provided she is not charged with
adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a
petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on
account of the defendant's adultery with Jose Arcalas had prescribed,
because his action was not filed within one year from March 1951 when
plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree
with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in
the night of June 18, 1955, the husband upon discovering the illicit
connection, expressed his wish to file a petition for legal separation and
defendant readily agreed to such filing. And when she was questioned by
the Fiscal upon orders of the court, she reiterated her conformity to the
legal separation even as she admitted having had sexual relations with
Nelson Orzame. Interpreting these facts virtually to mean a confession of
judgment the Appellate Court declared that under Art. 101, legal
separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any
admission or confession made by the defendant outside of the court. It
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merely prohibits a decree of separation upon a confession of judgment. Here, the offense of adultery had really taking place, according to the
Confession of judgment usually happens when the defendant appears in evidence. The defendant could not havefalsely told the adulterous acts to
court and confesses the right of plaintiff to judgment or files a pleading the Fiscal, because her story might send her to jail the moment her
expressly agreeing to the plaintiff's demand.2 This is not occur. husband requests the Fiscal to prosecute. She could not have practiced
deception at such a personal risk.
Yet, even supposing that the above statement of defendant constituted
practically a confession of judgment, inasmuch as there is evidence of the In this connection, it has been held that collusion may not be inferred from
adultery independently of such statement, the decree may and should be the mere fact that the guilty party confesses to the offense and thus
granted, since it would not be based on her confession, but upon evidence enables the other party to procure evidence necessary to prove it.
presented by the plaintiff. What the law prohibits is a judgment based (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs.
exclusively or mainly on defendant's confession. If a confession defeats the Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d]
action ipso facto, any defendant who opposes the separation will 688.).
immediately confess judgment, purposely to prevent it.
And proof that the defendant desires the divorce and makes no defense, is
The mere circumstance that defendants told the Fiscal that she "like also" not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
to be legally separated from her husband, is no obstacle to the successful
prosecution of the action. When she refused to answer the complaint, she We do not think plaintiff's failure actively to search for defendant and take
indicated her willingness to be separated. Yet, the law does not order the her home (after the latter had left him in 1952) constituted condonation or
dismissal. Allowing the proceeding to continue, it takes precautions against consent to her adulterous relations with Orzame. It will be remembered
collusion, which implies more than consent or lack of opposition to the that she "left" him after having sinned with Arcalas and after he had
agreement. discovered her dates with other men. Consequently, it was not his duty to
search for her to bring her home. Hers was the obligation to return.
Needless to say, when the court is informed that defendant equally desires
the separation and admitted the commission of the offense, it should be Two decisions3 are cited wherein from apparently similar circumstances,
doubly careful lest a collusion exists. (The Court of Appeals did not find this Court inferred the husband's consent to or condonation of his wife's
collusion.) misconduct. However, upon careful examination, a vital difference will be
found: in both instances, the husband had abandoned his wife; here it was
Collusion in divorce or legal separation means the agreement. the wife who "left" her husband.

. . . between husband and wife for one of them to commit, or to Wherefore, finding no obstacles to the aggrieved husband's petition we
appear to commit, or to be represented in court as having hereby reverse the appealed decision and decree a legal separation
committed, a matrimonial offense, or to suppress evidence of a between these spouse, all the consequent effects. Costs of all instances
valid defense, for the purpose of enabling the other to obtain a against Serafina Florenciano. So ordered.
divorce. This agreement, if not express, may be implied from the
acts of the parties. It is a ground for denying the divorce. (Griffiths
vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107
Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it
appear that a matrimonial offense had been committed although it was
not, or if the parties had connived to bring about a legal separation even in
the absence of grounds therefor.
 CIVIL LAW REVIEW | Family Code Assignment No. 5|3

2. A.M. No. RTJ-04-1861 July 30, 2004
MARGIE MACIAS CORPUS, complainant,
vs.
JUDGE WILFREDO G. OCHOTORENA, RTC BR. 11, SINDANGAN,
ZAMBOANGA DEL NORTE, respondent.
DECISION
TINGA, J.,
On May 22, 2001, the Office of the Court Administrator (OCA) received the
verified Complaint1 of Margie Corpus-Macias (Mrs. Macias) dated May 11,
2001, accusing Judge Wilfredo G. Ochotorena, then Presiding Judge,
Regional Trial Court (RTC), Branch 11, Sindangan, Zamboanga Del Norte,
of bias, partiality and violation of judicial conduct in connection with his
disposition of Civil Case No. S-695 for declaration of nullity of marriage,
entitled "Mariano Joaquin S. Macias v. Margie Corpus-Macias."
The antecedents follow.
On April 19, 2001, respondent judge denied the Motion to Dismiss and re-
set the hearing on the merits to April 30, May 2 and 3, 2001. 8 After the
scheduled hearings, the respondent judge terminated the proceedings and
declared the case submitted for decision.9
In the interim, from April 10, 2001 up to April 30, 2001, various motions
and manifestations, one after the other but interrelated, were filed by the
counsel of Mrs. Macias opposing the hearing on the merits of the case
before the respondent judge.10 One was denied while the rest were
ignored. As previously stated, the respondent proceeded with the hearing
on April 30, 2001 without resolving the other motions and manifestations.
It is in the light of the foregoing that Mrs. Macias believes that the
respondent judge deprived her of the fundamental right to due process
with utmost bias and partiality for Mr. Macias; hence, she filed the
instant Complaint containing the above-cited facts before the Office of the
Court Administrator (OCA).11 Also in the Complaint is her prayer that an
order be issued ex-parte directing the respondent judge to desist from
taking any further action in the subject case and imposing an
administrative sanction against him.

On February 6, 2001, a verified Complaint for declaration of nullity of Without waiting for the OCA's Indorsement, the respondent judge
marriage was filed against Mrs. Macias by Mariano Joaquin S. Macias ("Mr. submitted his Comment/Answer12 on May 25, 2001.13
Macias"), her husband and incumbent presiding judge of RTC, Branch 11,
Liloy, Zamboanga Del Norte. The case was raffled to the respondent's The respondent judge claims that the instant Complaint is fatally defective
court.2 On the same day the Complaint was filed, the respondent because it is not supported by the affidavits of persons who have
immediately issued Summons to Mrs. Macias.3 However, the Summons was knowledge of the facts and documents needed to substantiate the
not served on Mrs. Macias for the reason that her whereabouts were allegations therein. Also, he asserts that malice, bad faith, and the
allegedly unknown.4 Consequently, Mr. Macias filed a motion to serve intention to harass, embarrass and humiliate him had motivated Mrs.
summons by publication. The respondent granted the motion in Macias to file the said Complaint.
his Order5 dated March 7, 2001, with the directive that Mrs. Macias should
file her answer within 30 days after notice. Thereafter, Mr. Macias caused The respondent judge disputes violating Mrs. Macias' right to due process.
the publication of the Summons in the local weekly newspaper, "Tingog He argues that Mrs. Macias was given the opportunity to be heard but
Peninsula," based in Dipolog City in its March 11-17, 2001 issue.6 chose not to give her side, as shown by her failure to appear during the
trial despite prior notice. Furthermore, he points out that the records of the
Mrs. Macias claims she learned of the aforesaid publication case would show that the proceedings was done in good faith and based on
of Summons during the first week of April 2001. Without delay, on April 10, law and jurisprudence.
2001 or within the 30-day period to file an answer, she filed a Motion to
Dismiss, which she set for hearing on April 20, 2001.7 However, instead of Furthermore, the respondent judge posits that even if he may have
first acting upon the motion, the respondent judge set the hearing on the committed an error, such should be corrected by availing of judicial
merits of the subject case on April 19, 2001, or one day before. remedies and not by resorting to the filing of an administrative action. He
argues that it is only after the Supreme Court finds that a judge had
 CIVIL LAW REVIEW | Family Code Assignment No. 5|4

committed malice or gross ignorance that he should be administratively completely ignoring the fact that her Motion to Dismiss, which was filed
sanctioned. Moreover, respondent claims that a Petition14 dated May 11, within the 30-day reglementary period, was still pending resolution.
2001, containing similar allegations as the instant complaint, was filed
before the Court of Appeals, a copy of which he received on May 21, 2001. The respondent judge disregarded the provisions of Section 1, Rule 18 of
the 1997 Rules on Civil Procedure, which states that: "After the last
Finally, respondent judge insists that his Decision15 is valid and prays for pleading has been served and filed, it shall be the duty of the plaintiff to
the dismissal of the instant Complaint for lack of merit. promptly move ex-parte that the case be set for pre-trial." Considering that
the last pleading was Mrs. Macias' Motion to Dismiss, the respondent judge
In her Reply which she filed on July 19, 2001, Mrs. Macias admits having should have first resolved the motion and then waited for Mr. Macias'
16

filed a petition for certiorari17 under Rule 65 of the 1997 Rules of Civil motion to set the case for pre-trial.
Procedure with the Court of Appeals, docketed as CA-G.R. SP No. 64733
entitled "Margie Corpus Macias v. Judge Wilfredo G. Ochotorena" on May What happened in the case is a classic example of "railroading" or
18, 2001.18
In addition, Mrs. Macias claims that the Court of Appeals decided the merits of the case by receiving Mr. Macias' evidence ex-parte.
Petition for Certiorari and Prohibition with Application for Prayer for
Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction in
her favor on July 13, 2001, finding respondent judge blatantly
transgressing her right to due process and ignorant of the basic rudiments
of Civil Procedure. She notes that the Decision19 nullified the assailed
proceedings and the Decision20rendered by the respondent judge on May
15, 2001 in Civil Case No. S-695.21 And finally, Mrs. Macias stresses that
the instant charge against respondent judge may simply be verified by
checking the records of the case.
On June 4, 2001, the respondent judge retired from the service. However,
pursuant to the Resolution of the Court in A.M. No. 10597-Ret. dated 22
October 2001, the Court retained the amount of Forty Thousand Pesos
(P40,000.00) from his retirement benefits, to answer for whatever
administrative sanction the Court may impose in relation to the instant
case.22
In summary, Mrs. Macias now asserts before the Court that the respondent
judge's actuations constitute bias, partiality and conduct unbecoming a
judge. Moreover, according to her, what is more glaring and conclusive
from the records is that the respondent is grossly ignorant of the law and
procedure. For these administrative lapses, Mrs. Macias concludes that the
Court should sanction him.
The conclusion is amply supported by the Court of Appeals' Decision which
states that the respondent judge totally disregarded Mrs. Macias' right to
due process when he proceeded with the trial on the merits of the case
"procedural short-cut." Instead of resolving the Motion to Dismiss, the
respondent judge completely ignored it and proceeded with the trial on the
The respondent judge compounded his blunder when, after denying Mrs.
Macias' Motion to Dismiss, he continued with the reception of Mr. Macias'
evidence ex-parte, ordered the termination of the trial and thereafter,
considered the case submitted for decision despite Mrs. Macias' filing of
a Motion for Reconsideration of the order denying her Motion to Dismiss. In
holding the trial of the case up to its completion, the respondent judge had
acted utterly oblivious to the pending Motion for Reconsideration.
It is also worth mentioning that, as correctly found by the appellate court,
even if Mrs. Macias failed to file her answer to the complaint after the
period therefor had elapsed, the respondent judge was not authorized to
conduct a hearing of the case on its merits. The Rules of Court prohibits
default proceedings in cases involving declaration of nullity of marriage.23
In that regard, Mrs. Macias had already filed her Motion to Dismiss where
she indicated her address and, hence, can be notified by the Public
Prosecutor of his investigation.24
Section 3, Rule 9 of the 1997 Rules of Civil Procedure states: "If the
defending party in an 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, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated." Thus, the
report of the Public Prosecutor is a condition sine qua non for further
 CIVIL LAW REVIEW | Family Code Assignment No. 5|5

proceedings to go on in the case. Respondent judge ignored this procedural meted a penalty,29
the Court finds a fine of Twenty Thousand Pesos
rule. (P20,000.00) appropriate.

While the record shows that Public Prosecutor Arturo M. Paculanag had
filed a Certification dated May 04, 200125with the respondent judge's court,
stating, among others, that he appeared in behalf of the Solicitor General
during the ex-parte presentation of plaintiff's evidence, even cross-
examining the plaintiff and his witness, the psychiatrist Dr. Cheryl T.
Zalsos, and that he had no objection to the granting of the petition for
declaration of nullity of marriage, such Certification does not suffice to
comply with the mandatory requirement that the court should order the
investigating public prosecutor whether a collusion exists between the
parties. Such directive must be made by the court before trial could
proceed, not after the trial on the merits of the case had already been had.
Notably, said Certification was filed after the respondent judge had ordered
the termination of the case.
WHEREFORE, Judge Wilfredo G. Ochotorena is found GUILTY of gross
ignorance of the law and incompetence and is hereby FINED the amount of
Twenty Thousand Pesos (P20,000.00) to be taken from the amount earlier
withheld from his retirement benefits. The Fiscal Management Office of the
OCA is DIRECTED to immediately release to the respondent judge the
remaining balance of Twenty Thousand Pesos (P20,000.00) from the
aforesaid retained amount, unless there are other valid reasons for its
further retention.
SO ORDERED.

Considering the foregoing, the Court rules that the respondent judge
violated Mrs. Macias' right to due process when he completely ignored the
pertinent rules. A judge is called upon to exhibit more than just a modicum
of acquaintance with statutes and procedural rules, it is his duty to keep
always abreast with law and jurisprudence.26When the law or procedure is
so elementary, for him not to know it or to act as if he does not know it
constitutes gross ignorance.27

Under Section 3 in relation to Section 10 of Rule 140 of the Rules of Court,

gross ignorance of the law is considered a serious offense, for which a
penalty of either dismissal from the service with forfeiture of benefits,
suspension from office for more than three (3) months but not exceeding
six (6) months or a fine of more than Twenty Thousand Pesos
(P20,000.00) but not exceeding Forty Thousand Pesos (P40,000.00) may
be imposed.

Respondent compulsorily retired from the service on June 04, 2001, thus,
dismissal or suspension from the service is no longer possible.
Nonetheless, a penalty of fine may still be imposed upon him considering
that under the Resolution of the First Division in A.M. No. 10597-Ret. dated
October 22, 2001,28 the Court retained the amount of Forty Thousand
Pesos (P40,000.00) from his retirement benefits to answer for whatever
administrative sanction the Court may impose upon him with regard to this
case. Considering that this is the first time the respondent judge will be

3. G.R. No. 137590 March 26, 2001
FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.
PARDO, J.:
The Family Code emphasizes the permanent nature of marriage, hailing it
as the foundation of the family.1 It is this inviolability which is central to On June 16, 1995, the trial court dismissed Florence's petition.9
our traditional and religious concepts of morality and provides the very
bedrock on which our society finds stability.2 Marriage is immutable and On December 19, 1995, Florence filed with the trial court a notice of appeal
when both spouses give their consent to enter it, their consent becomes to the Court of Appeals.10
irrevocable, unchanged even by their independent wills.
However, this inviolability depends on whether the marriage exists and is
valid. If it is void ab initio, the "permanence" of the union becomes
irrelevant, and the Court can step in to declare it so. Article 36 of the
Family Code is the justification.3 Where it applies and is duly proven, a
judicial declaration can free the parties from the rights, obligations,
burdens and consequences stemming from their marriage.
A declaration of nullity of marriage under Article 36 of the Family Code
requires the application of procedural and substantive guidelines. While
compliance with these requirements mostly devolves upon petitioner, the
State is likewise mandated to actively intervene in the procedure. Should
there be non-compliance by the State with its statutory duty, there is a
need to remand the case to the lower court for proper trial.
The Case
What is before the Court4 is an appeal from a decision of the Court of
Appeals5 which affirmed the decision of the Regional Trial Court, Branch
158, Pasig City6 dismissing petitioner Florence Malcampo-Sin's (hereafter
"Florence") petition for declaration of nullity of marriage due to
psychological incapacity for insufficiency of evidence.
The Facts
CIVIL LAW REVIEW | Family Code Assignment No. 5|6
On January 4, 1987, after a two-year courtship and engagement, Florence
and respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen,
were married at St. Jude Catholic Parish in San Miguel, Manila.7
On September 20, 1994, Florence filed with the Regional Trial Court,
Branch 158, Pasig City, a complaint for "declaration of nullity of marriage"
against Philipp.8 Trial ensued and the parties presented their respective
documentary and testimonial evidence.
After due proceedings, on April 30, 1998, the Court of Appeals
promulgated its decision, the dispositive portion of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED.
The Decision appealed from is AFFIRMED. Cost against the
Appellant."11
On June 23, 1998, petitioner filed with the Court of Appeals a motion for
reconsideration of the aforequoted decision.12
On January 19, 1999, the Court of Appeals denied petitioner's motion for
reconsideration.13
Hence, this appeal.14
The Court's Ruling
We note that throughout the trial in the lower court, the State did not
participate in the proceedings. While Fiscal Jose Danilo C. Jabson15 filed
with the trial court a manifestation dated November 16, 1994, stating that
he found no collusion between the parties,16 he did not actively participate
therein. Other than entering his appearance at certain hearings of the case,
nothing more was heard from him. Neither did the presiding Judge take
any step to encourage the fiscal to contribute to the proceedings.
The Family Code mandates:

"ARTICLE 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
evidence is not fabricated or suppressed (italics ours).
"In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment."
It can be argued that since the lower court dismissed the petition, the evil
sought to be prevented (i.e., dissolution of the marriage) did not come
about, hence, the lack of participation of the State was cured. Not so. The
task of protecting marriage as an inviolable social institution requires
vigilant and zealous participation and not mere pro-forma compliance. The
protection of marriage as a sacred institution requires not just the defense
of a true and genuine union but the exposure of an invalid one as well. This
is made clear by the following pronouncement:
"(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision,17 briefly stating
therein his reasons for his agreement or opposition as the case
may be, to the petition. The Solicitor-General shall discharge the
equivalent function of the defensor vinculi contemplated under
Canon 1095 (italics ours)."18
The records are bereft of any evidence that the State participated in the
prosecution of the case not just at the trial level but on appeal with the
Court of Appeals as well. Other than the "manifestation" filed with the trial
court on November 16, 1994, the State did not file any pleading, motion or
position paper, at any stage of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we upheld
the validity of the marriage, we nevertheless characterized the decision of
the trial court as "prematurely rendered" since the investigating prosecutor
was not given an opportunity to present controverting evidence before the
judgment was rendered. This stresses the importance of the participation
of the State.
CIVIL LAW REVIEW | Family Code Assignment No. 5|7
Having so ruled, we decline to rule on the factual disputes of the case, this
being within the province of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of
Appeals,20 the guidelines in the interpretation and application of Article 36
of the Family Code are as follows (omitting guideline [8] in the
enumeration as it was already earlier quoted):
"(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of
the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity
of the family. Thus, our Constitution devotes an entire Article on
the Family, recognizing it "as the foundation of the nation." It
decrees marriage as legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family and
marriage are to be "protected" by the state. The Family Code
echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.
"(2) The root cause of the psychological incapacity must be: a)
medically or clinically identified, b) alleged in the complaint, c)
sufficiently proven by experts and d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity
must be psychological not physical, although its manifestations
and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or
psychically (sic) ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could
not have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis,
nevertheless such root cause must be identified as a psychological
illness and its incapacitating nature fully explained. Expert evidence
may be given by qualified psychiatrists and clinical psychologists.
"(3) The incapacity must be proven to be existing at "the time of
the celebration" of the marriage. The evidence must show that the
illness was existing when the parties exchanged their "I do's." The
 CIVIL LAW REVIEW | Family Code Assignment No. 5|8

manifestation of the illness need not be perceivable at such time, WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision
but the illness itself must have attached at such moment, or prior of the Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30,
thereto. 1998 and the decision of the Regional Trial Court, Branch 158, Pasig City in
Civil Case No. 3190, dated June 16, 1995.
"(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be absolute Let the case be REMANDED to the trial court for proper trial.
or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such No costs.
incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like SO ORDERED.
the exercise of a profession or employment in a job. Hence, a
pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but may not be psychologically
capacitated to procreate, bear and raise his/her own children as an
essential obligation of marriage.

"(5) Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of marriage. Thus,
"mild characteriological peculiarities, mood changes, occasional
emotional outbursts" cannot be accepted as root causes. The
illness must be shown as downright incapacity or inability, not
refusal, neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.

"(6) The essential marital obligations must be those embraced by

Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.

"(7) Interpretations given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our
courts."

The Fallo

4. G.R. No. 116607 April 10, 1996
EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.
PUNO, J.:p
This petition for review on certiorari seeks to annul and set aside the
decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No.
37925 denying petitioner's appeal from an order of the Regional Trial
Court, Branch 149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the
Regional Trial Court, Branch 149, Makati a petition for annulment or
declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her
complaint, private respondent alleged that she and petitioner were married
on June 3, 1972 and from this union, begot two children; that at the time
of the marriage, petitioner was already psychologically incapacitated to
comply with his essential marital obligations which became manifest
afterward and resulted in violent fights between husband and wife; that in
one of their fights, petitioner inflicted physical injuries on private
respondent which impelled her to file a criminal case for physical injuries
against him; that petitioner used prohibited drugs, was apprehended by
the authorities and sentenced to a one-year suspended penalty and has not
been rehabilitated; that petitioner was a womanizer, and in 1984, he left
the conjugal home and cohabited with three women in succession, one of
whom he presented to the public as his wife; that after he left the conjugal
dwelling, petitioner gave minimal support to the family and even refused to
pay for the tuition fees of their children compelling private respondent to
accept donations and dole-outs from her family and friends; that petitioner
likewise became a spendthrift and abused his administration of the
conjugal partnership by alienating some of their assets and incurring large
obligations with banks, credit card companies and other financial
institutions, without private respondent's consent; that attempts at
reconciliation were made but they all failed because of petitioner's refusal
to reform. In addition to her prayer for annulment of marriage, private
respondent prayed for powers of administration to save the conjugal
properties from further dissipation.1
CIVIL LAW REVIEW | Family Code Assignment No. 5|9
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
 CIVIL LAW REVIEW | Family Code Assignment No. 5|10

On June 8, 1990, petitioner failed to appear. On oral motion of private Petitioner appealed before the Court of Appeals the order of the trial court
respondent, the court declared petitioner to have waived his right to denying his petition for relief from judgment. On July 29, 1994, the Court
present evidence and deemed the case submitted for decision on the basis of Appeals dismissed the appeal and affirmed the order of the trial court. 10
of the evidence presented.
Hence this petition.
On June 29, 1990, the trial court rendered judgment declaring the nullity of
private respondent's marriage to petitioner and awarding custody of the The threshold issue is whether a petition for relief from judgment is
children to private respondent. The court ruled: warranted under the circumstances of the case.

WHEREFORE, in view of the foregoing, the marriage We rule in the negative.

contracted by Ma. Victoria L. Tuason and Emilio R. Tuason
on June 3, 1972 is declared null and void ab initio on the A petition for relief from judgment is governed by Rule 38, Section 2 of the
ground of psychological incapacity on the part of the Revised Rules of Court which provides:
defendant under Sec. 36 of the Family Code. Let herein
judgment of annulment be recorded in the registry of Sec. 2. Petition to Court of First Instance for relief from
Mandaluyong, Metro Manila where the marriage was judgment or other proceeding thereof. When a judgment
contracted and in the registry of Makati, Metro Manila or order is entered, or any other proceeding is taken,
where the marriage is annulled. against a party in a Court of First Instance through fraud,
accident, mistake, or excusable negligence, he may file a
The custody of the two (2) legitimate children of the petition in such court and in the same cause praying that
plaintiff and the defendant is hereby awarded to the the judgment, order or proceeding be set aside.
plaintiff.
Under the rules, a final and executory judgment or order of the Regional
The foregoing judgment is without prejudice to the Trial Court may be set aside on the ground of fraud, accident, mistake or
application of the other effects of annulment as provided excusable negligence. In addition, the petitioner must assert facts showing
for under Arts . 50 and 51 of the Family Code of the that he has a good, substantial and meritorious defense or cause of
Philippines.6 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
Counsel for petitioner received a copy of this decision on August 24, 1990. therein. 12
No appeal was taken from the decision.
In the case at bar, the decision annulling petitioner's marriage to private
On September 24, 1990, private respondent filed a "Motion for Dissolution respondent had already become final and executory when petitioner failed
of Conjugal Partnership of Gains and Adjudication to Plaintiff of the to appeal during the reglementary period. Petitioner however claims that
Conjugal Properties."7 Petitioner opposed the motion on October 17, 1990.8 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
Also on the same day, October 17, 1990, petitioner, through new counsel, appear on two scheduled hearings, the trial court deemed him to have
filed with the trial court a petition for relief from judgment of the June 29, waived his right to present evidence and rendered judgment on the basis
1990 decision. 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
The trial court denied the petition on August 8, 1991. 9 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
 CIVIL LAW REVIEW | Family Code Assignment No. 5|11

petitioner was admitted for treatment of drug dependency at the Drug avoidance from the effects of the judgment when the loss of the remedy at
Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila law was due to his own negligence; otherwise the petition for relief can be
of the Philippine Constabulary-Integrated National Police. 14 The records, used to revive the right to appeal which had been lost thru inexcusable
however, show that the former counsel of petitioner did not inform the trial negligence. 19
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 Petitioner also insists that he has a valid and meritorious defense. He cites
final and executory as no appeal was taken therefrom. 15 the Family Code which provides that in actions for annulment of marriage
or legal separation, the prosecuting officer should intervene for the state
The failure of petitioner's counsel to notify him on time of the adverse because the law "looks with disfavor upon the haphazard declaration of
judgment to enable him to appeal therefrom is negligence which is not annulment of marriages by default." He contends that when he failed to
excusable. Notice sent to counsel of record is binding upon the client and appear at the scheduled hearings, the trial court should have ordered the
the neglect or failure of counsel to inform him of an adverse judgment prosecuting officer to intervene for the state and inquire as to the reason
resulting in the loss of his right to appeal is not a ground for setting aside a for his non-appearance. 20
judgment valid and regular on its face. 16
Articles 48 and 60 of the Family Code read as follows:
Similarly inexcusable was the failure of his former counsel to inform the
trial court of petitioner's confinement and medical treatment as the reason Art. 48. In all cases of annulment or declaration of absolute
for his non-appearance at the scheduled hearings. Petitioner has not given nullity of marriage, the Court shall order the prosecution
any reason why his former counsel, intentionally or unintentionally, did not attorney or fiscal assigned to it to appear on behalf of the
inform the court of this fact. This led the trial court to order the case State to take steps to prevent collusion between the parties
deemed submitted for decision on the basis of the evidence presented by and to take care that evidence is not fabricated or
the private respondent alone. To compound the negligence of petitioner's suppressed.
counsel, the order of the trial court was never assailed via a motion for
reconsideration. In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
Clearly, petitioner cannot now claim that he was deprived of due process. confession of judgment.
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 xxx xxx xxx
participated in the proceedings below. He filed his answer to the petition,
cross-examined private respondent's witnesses and even submitted his Art. 60. No decree of legal separation shall be based upon
opposition to private respondent's motion for dissolution of the conjugal a stipulation of facts or a confession of judgment.
partnership of gains. 17

In any case, the Court shall order the prosecuting attorney

A petition for relief from judgment is an equitable remedy; it is allowed or fiscal assigned to it to take steps to prevent collusion
only in exception cases where there is no other available or adequate between the parties and to take care that the evidence is
remedy. When a party has another remedy available or adequate remedy. not fabricated or suppressed. 21
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
A grant of annulment of marriage or legal separation by default is fraught
appeal from an adverse decision of the trial court, and he was not
with the danger of collusion. 22 Hence, in all cases for annulment,
prevented by fraud, accident, mistake or excusable negligence from filing
declaration of nullity of marriage and legal separation, the prosecuting
such motion or taking such appeal, he cannot avail himself of this
attorney or fiscal is ordered to appear on behalf of the state for the
petition. 18 Indeed, relief will not be granted to a party who seeks
purpose of preventing any collusion between the parties and to take care
 CIVIL LAW REVIEW | Family Code Assignment No. 5|12

that their evidence is not fabricated or suppressed. If the defendant spouse of a radio and television corporation places him in the public eye and
fails to answer the complaint, the court cannot declare him or her in makes him a good subject for malicious gossip linking him with various
default but instead, should order the prosecuting attorney to determine if women. These facts, according to petitioner, should disprove the ground
collusion exists between the parties.23 The prosecuting attorney or fiscal for annulment of his marriage to petitioner.
may oppose the application for legal separation or annulment through the
presentation of his own evidence, if in his opinion, the proof adduced is Suffice it to state that the finding of the trial court as to the existence or
dubious and fabricated.24 Our Constitution is committed to the policy of non-existence of petitioner's psychological incapacity at the time of the
strengthening the family as a basic social institution. 25Our family law is marriage is final and binding on us. 26 Petitioner has not sufficiently shown
based on the policy that marriage is not a mere contract, but a social that the trial court's factual findings and evaluation of the testimonies of
institution in which the state is vitally interested. The state can find no private respondent's witnesses vis-a-vis petitioner's defenses are clearly
stronger anchor than on good, solid and happy families. The break up of and manifestly erroneous. 27
families weakens our social and moral fabric and, hence, their preservation
is not the concern alone of the family members. 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.
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

5. G.R. No. 174485 July 11, 2007
AGNES GAMBOA-HIRSCH Petitioner,
vs.
HON. COURT OF APPEALS and FRANKLIN HARVEY
HIRSCH, Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks to set aside the
June 8, 2006 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No.
94329, which granted private respondent Franklin Harvey Hirsch (Franklin)
joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor
daughter Simone Noelle Hirsch (Simone); and the August 3, 2006 CA
Resolution3 denying petitioners Motion for Reconsideration for lack of
merit. Petitioner also prays for the issuance of a temporary restraining
order/injunction preventing the execution and implementation of the
assailed June 8, 2006 CA Decision.
Franklin and Agnes were married on December 23, 2000 in the City of
Bacolod, and established their conjugal dwelling in Diniwid, Boracay Island,
Malay, Aklan. On December 21, 2002, a child was born to them and was
named Simone. In 2005, the couple started to have marital problems as
Agnes wanted to stay in Makati City, while Franklin insisted that they stay
in Boracay Island. On March 23, 2006, Agnes came to their conjugal home
in Boracay, and asked for money and for Franklins permission for her to
bring their daughter to Makati City for a brief vacation. Franklin readily
agreed, but soon thereafter discovered that neither Agnes nor their
daughter Simone would be coming back to Boracay.
Franklin then filed a petition for habeas corpus before the CA for Agnes to
produce Simone in court. On May 19, 2006, the CA issued a Resolution
which ordered that a writ of habeas corpus be issued ordering that Simone
be brought before said court on May 26, 2006. After a series of hearings
and presentation of evidence, the CA, on June 8, 2006, promulgated the
assailed Decision granting Franklin joint custody with Agnes of their minor
child. Agnes filed a Motion for Reconsideration of this Decision, which was
denied in the CAs August 3, 2006 Resolution for lack of merit. Acting on the petition, this Court issued its October 2, 2006 Resolution
denying petitioners prayer for the issuance of a temporary restraining
order. Petitioner then filed a Motion for Reconsideration of this Resolution,
CIVIL LAW REVIEW | Family Code Assignment No. 5|13
Petitioner now comes before this Court praying that we set aside the June
8, 2006 Decision and August 3, 2006 Resolution of the CA, and that we
issue a temporary restraining order/injunction on the execution and
implementation of the assailed rulings of the CA based on the following
grounds:
(A)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it ruled
upon, granted, and decided the matter of custody x x x during the
May 26, 2006 hearing conducted on the petition for writ of habeas
corpus in relation to and with custody of a minor under A.M. No.
03-03-04-SC, C.A.-GR SP. No. 94329, as no reception of evidence
to support said decision was had thereon, and the honorable court
merely based its decision on mere conjectures and presumptions.
(B)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it
denied the motion for reconsideration filed by [petitioner Agnes]
and only made addendums thereon appertaining to the custody
aspect in its Decision that the same is deemed necessary for the
protection of the interest of the child and a mere temporary
arrangement while the case involving the herein parties are
pending before the Regional Trial Court x x x quite contrary to its
pronouncements during the May 26, 2006 hearing when the matter
of custody was insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted with grave abuse of
discretion amounting to lack or excess of jurisdiction when it
granted joint custody in utter disregard of the provisions of the
Family Code, as to minors seven (7) years of age and below, in
relation to the jurisprudence and pronouncements laid down by the
Honorable Supreme Court on the matter of the said provision.4
 CIVIL LAW REVIEW | Family Code Assignment No. 5|14

and on April 11, 2007, this Court granted petitioners Motion for
Reconsideration, issued a temporary restraining order, and awarded the
sole custody of the minor, Simone, to petitioner.

This petition has merit.

The CA committed grave abuse of discretion when it granted joint custody

of the minor child to both parents.

The Convention on the Rights of the Child provides that "in all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration (emphasis
supplied)."5 The Child and Youth Welfare Code, in the same way,
unequivocally provides that in all questions regarding the care and custody,
among others, of the child, his/her welfare shall be the paramount
consideration.6

The so-called "tender-age presumption" under Article 213 of the Family

Code may be overcome only by compelling evidence of the mothers
unfitness. The mother is declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, or affliction with a communicable
disease.7 Here, the mother was not shown to be unsuitable or grossly
incapable of caring for her minor child. All told, no compelling reason has
been adduced to wrench the child from the mothers custody.1avvphi1

WHEREFORE, premises considered, the petition is GIVEN DUE COURSE.

The June 8, 2006 Decision and August 3, 2006 Resolution of the CA are
hereby SET ASIDE. Sole custody over Simone Noelle Hirsch is
herebyAWARDED to the mother, petitioner Agnes Gamboa-Hirsch.

SO ORDERED.
 CIVIL LAW REVIEW | Family Code Assignment No. 5|15

6. G.R. No. 154994 June 28, 2005 "The [respondent] court/Judge is hereby directed to consider, hear and
resolve [petitioners] motion to lift the award of custody pendente lite of
JOYCELYN PABLO-GUALBERTO, petitioner, the child to [respondent]."3
vs.
CRISANTO RAFAELITO GUALBERTO V, respondent. The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto
V under Rule 65 of the Rules of Court, charging the appellate court with
x - - - - - - - - - - - - - - - - - - - - - - -x grave abuse of discretion for denying his Motion for Partial Reconsideration
of the August 30, 2002 Decision. The denial was contained in the CAs
G.R. No. 156254 June 28, 2005 November 27, 2002 Resolution, which we quote:

CRISANTO RAFAELITO G. GUALBERTO V, petitioner,
vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge,
Regional Trial Court Paraaque City, Branch 260; and JOYCELYN D.
PABLO-GUALBERTO, respondents.
"We could not find any cogent reason why the [last part of the dispositive
portion of our Decision of August 30, 2002] should be deleted, hence,
subject motion is hereby DENIED."5
The Facts

DECISION The CA narrated the antecedents as follows:

PANGANIBAN, J.: "x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before
[the Regional Trial Court of Paraaque City] a petition for declaration of
When love is lost between spouses and the marriage inevitably results in nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an
separation, the bitterest tussle is often over the custody of their children. ancillary prayer for custody pendente lite of their almost 4-year-old son,
The Court is now tasked to settle the opposing claims of the parents for minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took
custody pendente lite of their child who is less than seven years of age. away with her from the conjugal home and his school (Infant Toddlers
There being no sufficient proof of any compelling reason to separate the Discovery Center in Paraaque City) when [she] decided to abandon
minor from his mother, custody should remain with her. [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002,
[RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for
The Case custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear
despite notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry
Batistel, testified before the x x x Judge; x x x documentary evidence
Before us are two consolidated petitions. The first is a Petition for
[was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded
Review1 filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of
custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x
Court, assailing the August 30, 2002 Decision2 of the Court of Appeals (CA)
x:
in CA-GR SP No. 70878. The assailed Decision disposed as follows:

x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn]

"WHEREFORE, premises considered, the Petition for Certiorari is
took their minor child with her to Caminawit, San Jose, Occidental Mindoro.
hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET
At that time, the minor was enrolled at B.F. Homes, Paraaque City.
ASIDE and ANNULLED. The custody of the child is hereby ordered
Despite effort[s] exerted by him, he has failed to see his child. [Joycelyn]
returned to [Crisanto Rafaelito G. Gualberto V].
and the child are at present staying with the formers step-father at the
latters [residence] at Caminawit, San Jose, Occidental Mindoro.

Renato Santos, President of United Security Logistic testified that he was
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and
came up with the conclusion that [she] is having lesbian relations with one
Noreen Gay Cuidadano in Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a
house helper of the spouses who stated that [the mother] does not care for
the child as she very often goes out of the house and on one occasion, she
saw [Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the
persons of their children. In the case of disagreement, the fathers decision This case was filed on March 12, 2002. Several attempts were made to
shall prevail, unless there is a judicial order to the contrary.
The authority of the father and mother over their children is exercised Ronnie Nolasco, [Joycelyns mother and stepfather, respectively,] read the
jointly. This recognition, however, does not place her in exactly the same contents of the documents presented after which they returned the
place as the father; her authority is subordinated to that of the father.
In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the
child, taking into account the respective resources and social and moral
situations of the contending parties.
The Court believes that [Joycelyn] had no reason to take the child with
her. Moreover, per Sheriff returns, she is not with him at Caminawit, San
Jose, Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards custody of the
minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G.
Gualberto V.
"x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the
award of custody pendente lite of the child to [Crisanto] was set but the
former did not allegedly present any evidence to support her motion.
However, on May 17, 2002, [the] Judge allegedly issued the assailed Order
reversing her Order of April 3, 2002 and this time awarding custody of the
child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to
wit:
CIVIL LAW REVIEW | Family Code Assignment No. 5|16
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente
Lite and [Joycelyns] Motion to Dismiss and the respective Oppositions
thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the
person referred to in the caption of the Petition is one JOCELYN Pablo
Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the
person referred to in the Complaint. As a matter of fact, the body of the
Complaint states her name correct[ly]. The law is intended to facilitate and
promote the administration of justice, not to hinder or delay it. Litigation
should be practicable and convenient. The error in the name of Joycelyn
does not involve public policy and has not prejudiced [her].
serve summons on [Joycelyn] as shown by the Sheriffs returns. It appears
that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x
same.lawphil.net
The Court believes that on that day, summons was duly served and this
Court acquired jurisdiction over [Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002 was an after
thought, perforce the Motion to [D]ismiss should be denied.
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely
four years old. Under Article 213 of the Family Code, he shall not be
separated from his mother unless the Court finds compelling reasons to
order otherwise. The Court finds the reason stated by [Crisanto] not [to]
be compelling reasons.1avvphil.zw+ The father should however be entitled
to spend time with the minor. These do not appear compelling reasons to
deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no
objection to the father visiting the child even everyday provided it is in
Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto
Rafaello P. Gualberto, with [the] right of [Crisanto] to have the child with
him every other weekend.

WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn
Pablo Gualberto with the right of the father, x x x [Crisanto], to
have him every other week-end.
3. Parties are admonished not to use any other agencies of the
government like the CIDG to interfere in this case and to harass
the parties."6
In a Petition for Certiorari7 before the CA, Crisanto charged the Regional
Trial Court (Branch 260) of Paraaque City with grave abuse of discretion
for issuing its aforequoted May 17, 2002 Order. He alleged that this Order
superseded, without any factual or legal basis, the still valid and subsisting
April 3, 2002 Order awarding him custody pendente lite of his minor son;
and that it violated Section 14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had
been committed by the trial court in reversing the latter courts previous
Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The
appellate court explained that the only incident to resolve was Joycelyns
Motion to Dismiss, not the issuance of the earlier Order. According to the
CA, the prior Order awarding provisional custody to the father should
prevail, not only because it was issued after a hearing, but also because
the trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded
from considering and resolving Joycelyns Motion to lift the award of
custody pendente lite to Crisanto, as that Motion had yet to be properly
considered and ruled upon. However, it directed that the child be turned
over to him until the issue was resolved.
Hence, these Petitions.8
Issues
CIVIL LAW REVIEW | Family Code Assignment No. 5|17
In GR No. 154994, Petitioner Joycelyn submits these issues for our
consideration:
"1. Whether or not the Respondent Court of Appeals, when it
awarded the custody of the child to the father, violated Art. 213 of
the Family Code, which mandates that no child under seven years
of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise.
"2. Is it Article 213 or Article 211 which applies in this case
involving four-year old Rafaello?"9
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion
amounting to or in excess of jurisdiction when, in its August 30,
2002 Decision, it ordered respondent court/Judge to consider, hear
and resolve the motion to lift award of custody pendente lite of the
child to petitioner and x x x denied the motion for reconsideration
thereof in its November 27, 2002 Resolution, considering that: (1)
there is no such motion ever, then or now pending, with the court
a quo; (2) the November 27, 2002 Resolution is unconstitutional;
and (3) the April 3, 2002 Order of respondent Judge, the validity of
which has been upheld in the August 30, 2002 Decision of the
respondent Court, has become final and executory; and
"B. Ought not the ancillary remedies [o]f habeas corpus, because
the whereabouts, physical and mental condition of the illegally
detained Minor Rafaello is now unknown to petitioner and
preliminary mandatory injunction with urgent prayer for immediate
issuance of preliminary [injunction], petitioner having a clear and
settled right to custody of Minor Rafaello which has been violated
and still is being continuously violated by [petitioner Joycelyn], be
granted by this Honorable Court?"10
Being interrelated, the procedural challenges and the substantive issues in
the two Petitions will be addressed jointly.
The Courts Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:
The Alleged Prematurity of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall
first dispose of a threshold issue. In GR No. 154994, therein Respondent
Crisanto contends that the Petition for Review was filed beyond the
deadline (October 24, 2002) allowed by the Rules of Court and by this
Court. He claims that Registry Bill No. 88 shows that the Petition was sent
by speed mail, only on November 4, 2002. Furthermore, he assails the
Petition for its prematurity, since his Motion for Partial Reconsideration of
the August 30, 2002 CA Decision was still pending before the appellate
court. Thus, he argues that the Supreme Court has no jurisdiction over
Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by mail is governed by
Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote:
"SEC. 3. Manner of filing. The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by
presenting the original copies thereof, plainly indicated as such personally
to the clerk of court or by sending them by registered mail. xxx In the
second case, the date of mailing of motions, pleadings and other papers or
payments or deposits, as shown by the post office stamp on the envelope
or the registry receipt, shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be attached to the records
of the case.
"x x x x x x x x x
"SEC. 7. Service by mail. Service by registered mail shall be made by
depositing the copy in the office, in a sealed envelope, plainly addressed to
the party or his counsel at his office, if known, otherwise at his residence,
if known, with postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of either the
sender of the addressee, service may be done by ordinary mail. (Italics
supplied)
CIVIL LAW REVIEW | Family Code Assignment No. 5|18
The records disclose that Joycelyn received the CAs August 30, 2002
Decision on September 9, 2002. On September 17, she filed before this
Court a Motion for a 30-day extension of time to file a petition for review
on certiorari. This Motion was granted,11 and the deadline was thus
extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were
sent to this Court and to the parties by registered mail 12 at the Bian,
Laguna Post Office on October 24, 2002. This is the date clearly stamped
on the face of the envelope13 and attested to in the Affidavit of
Service14 accompanying the Petition. Petitioner Joycelyn explained that the
filing and the service had been made by registered mail due to the "volume
of delivery assignments and the lack of a regular messenger."15
The Petition is, therefore, considered to have been filed on October 24,
2002, its mailing date as shown by the post office stamp on the envelope.
The last sentence of Section 3 of Rule 13 of the Rules provides that the
date of filing may be shown either by the post office stamp on the
envelope or by the registry receipt. Proof of its filing, on the other hand, is
shown by the existence of the petition in the record, pursuant to Section
12 of Rule 13.16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows
the date November 2, 2002, merely discloses when the mail matters
received by the Bian Post Office on October 24, 2002, were dispatched or
sent to the Central Mail Exchange for distribution to their final
destinations.17 The Registry Bill does not reflect the actual mailing date.
Instead, it is the postal Registration Book18 that shows the list of mail
matters that have been registered for mailing on a particular day, along
with the names of the senders and the addressees. That book shows that
Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters
for the Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto points
out that his Urgent Motion for Partial Reconsideration19 was still awaiting
resolution by the CA when she filed her Petition before this Court on
October 24, 2002. The CA ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed

her Motion for Extension of Time to file her Petition for Review, she might
have still been unaware that he had moved for a partial reconsideration of
the August 20, 2002 CA Decision. Nevertheless, upon being notified of the
filing of his Motion, she should have manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration,
Joycelyns lapse may be excused in the interest of resolving the
substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its
discretion when it ordered the trial court judge to "consider, hear and
resolve the motion to lift the award of custody pendente lite" without any
proper motion by Joycelyn and after the April 3, 2002 Order of the trial
court had become final and executory. The CA is also charged with grave
abuse of discretion for denying his Motion for Partial Reconsideration
without stating the reasons for the denial, allegedly in contravention of
Section 1 of Rule 36 of the Rules of Court.
The Order to Hear the Motion to Lift the Award of Custody Pendente Lite
Proper
To begin with, grave abuse of discretion is committed when an act is 1)
done contrary to the Constitution, the law or jurisprudence; 20 or 2)
executed "whimsically or arbitrarily" in a manner "so patent and so gross
as to amount to an evasion of a positive duty, or to a virtual refusal to
perform the duty enjoined."21 What constitutes grave abuse of discretion is
such capricious and arbitrary exercise of judgment as that which is
equivalent, in the eyes of the law, to lack of jurisdiction.22
On the basis of these criteria, we hold that the CA did not commit grave
abuse of discretion.
First, there can be no question that a court of competent jurisdiction is
vested with the authority to resolve even unassigned issues. It can do so
when such a step is indispensable or necessary to a just resolution of "Art. 49. During the pendency of the action28 and in the absence of
issues raised in a particular pleading or when the unassigned issues are adequate provisions in a written agreement between the spouses, the
inextricably linked or germane to those that have been pleaded. 23 This Court shall provide for the support of the spouses and the custody and
support of their common children. x x x."
CIVIL LAW REVIEW | Family Code Assignment No. 5|19
truism applies with more force when the relief granted has been specifically
prayed for, as in this case.
Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her
ancillary prayer for the court to lift and set aside its April 3, 2002 Order
awarding to Crisanto custody pendente lite of their minor son. Indeed, the
necessary consequence of granting her Motion to Dismiss would have been
the setting aside of the Order awarding Crisanto provisional custody of the
child. Besides, even if the Motion to Dismiss was denied -- as indeed it was
-- the trial court, in its discretion and if warranted, could still have granted
the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of
the provisional nature of the April 3, 2002 Order. Under Rule 38 25 of the
Rules of Court, verification is required only when relief is sought from a
final and executory Order. Accordingly, the court may set aside its own
orders even without a proper motion, whenever such action is warranted
by the Rules and to prevent a miscarriage of justice.26
Denial of the Motion for Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly
and distinctly the reasons for their dispositions) refers only to decisions and
final orders on the merits, not to those resolving incidental matters.27 The
provision reads:
"SECTION 1. Rendition of judgments and final orders. A judgment or final
order determining the merits of the caseshall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and filed with the clerk of
court." (Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the main
case, in which the issue of custody pendente lite is an incident. That
custody and support of common children may be ruled upon by the court
while the action is pending is provided in Article 49 of the Family Code,
which we quote :
 CIVIL LAW REVIEW | Family Code Assignment No. 5|20

Clearly then, the requirement cited by Crisanto is inapplicable. In any child.32

Article 213 takes its bearing from Article 363 of the Civil Code,
event, in its questioned Resolution, the CA clearly stated that it "could not which reads:
find any cogent reason" to reconsider and set aside the assailed portion of
its August 30, 2002 Decision. "Art. 363. In all questions on the care, custody, education and property of
children, the latters welfare shall be paramount. No mother shall be
The April 3, 2002 Order Not Final and Executory separated from her child under seven years of age, unless the court finds
compelling reasons for such measure."(Italics supplied)
Third, the award of temporary custody, as the term implies, is provisional
and subject to change as circumstances may warrant. In this connection, The general rule that children under seven years of age shall not be
there is no need for a lengthy discussion of the alleged finality of the April separated from their mother finds its raison detre in the basic need of
3, 2002 RTC Order granting Crisanto temporary custody of his son. For minor children for their mothers loving care.33 In explaining the rationale
that matter, even the award of child custody after a judgment on a for Article 363 of the Civil Code, the Code Commission stressed thus:
marriage annulment is not permanent; it may be reexamined and adjusted
if and when the parent who was given custody becomes unfit.29 "The general rule is recommended in order to avoid a tragedy where a
mother has seen her baby torn away from her. No man can sound the deep
Second Issue: sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for compelling reasons for the
Custody of a Minor Child good of the child: those cases must indeed be rare, if the mothers heart is
not to be unduly hurt. If she has erred, as in cases of adultery, the penalty
When love is lost between spouses and the marriage inevitably results in of imprisonment and the (relative) divorce decree will ordinarily be
separation, the bitterest tussle is often over the custody of their children. sufficient punishment for her. Moreover, her moral dereliction will not have
The Court is now tasked to settle the opposing claims of the parents for any effect upon the baby who is as yet unable to understand the situation."
custody pendente lite of their child who is less than seven years old.30 On (Report of the Code Commission, p. 12)
the one hand, the mother insists that, based on Article 213 of the Family
Code, her minor child cannot be separated from her. On the other hand, A similar provision is embodied in Article 8 of the Child and Youth Welfare
the father argues that she is "unfit" to take care of their son; hence, for Code (Presidential Decree No. 603).34Article 17 of the same Code is even
"compelling reasons," he must be awarded custody of the child. more explicit in providing for the childs custody under various
circumstances, specifically in case the parents are separated. It clearly
Article 213 of the Family Code provides:
31 mandates that "no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so." The provision
"ART. 213. In case of separation of the parents, parental authority shall be is reproduced in its entirety as follows:
exercised by the parent designated by the court. The court shall take into
"Art. 17. Joint Parental Authority. The father and the mother shall
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. exercise jointly just and reasonable parental authority and responsibility
over their legitimate or adopted children. In case of disagreement, the
No child under seven years of age shall be separated from the mother, fathers decision shall prevail unless there is a judicial order to the
unless the court finds compelling reasons to order otherwise." contrary.

This Court has held that when the parents are separated, legally or "In case of the absence or death of either parent, the present or surviving
otherwise, the foregoing provision governs the custody of their parent shall continue to exercise parental authority over such children,
unless in case of the surviving parents remarriage, the court for justifiable
reasons, appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall
be separated from his mother, unless the court finds compelling reasons to
do so." (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the
Family Code. It is unmistakable from the language of these provisions that
Article 21135 was derived from the first sentence of the aforequoted Article
17; Article 212,36 from the second sentence; and Article 213,37 save for a
few additions, from the third sentence. It should be noted that the Family
Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.38
Mandatory Character of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in
Article 363 of the Civil Code and the observations made by the Code
Commission underscore the mandatory character of the word.40 Holding in
that case that it was a mistake to deprive the mother of custody of her two
children, both then below the age of seven, the Court stressed:
"[Article 363] prohibits in no uncertain terms the separation of a mother
and her child below seven years, unless such a separation is grounded
upon compelling reasons as determined by a court."41
In like manner, the word "shall" in Article 213 of the Family Code and
Section 642 of Rule 99 of the Rules of Court has been held to connote a
mandatory character.43 Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each other, but
are separated by virtue of either a decree of legal separation or a de facto
separation.44 In the present case, the parents are living separately as a
matter of fact.
The Best Interest of the Child a Primary Consideration
The Convention on the Rights of the Child provides that "[i]n all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration."45
The principle of "best interest of the child" pervades Philippine cases
involving adoption, guardianship, support, personal status, minors in To this effect did the Court rule in Unson III v. Navarro, wherein the
conflict with the law, and child custody. In these cases, it has long been mother was openly living with her brother-in-law, the childs uncle. Under
CIVIL LAW REVIEW | Family Code Assignment No. 5|21
recognized that in choosing the parent to whom custody is given, the
welfare of the minors should always be the paramount
consideration.46 Courts are mandated to take into account all relevant
circumstances that would have a bearing on the childrens well-being and
development. Aside from the material resources and the moral and social
situations of each parent, other factors may also be considered to ascertain
which one has the capability to attend to the physical, educational, social
and moral welfare of the children.47 Among these factors are the previous
care and devotion shown by each of the parents; their religious
background, moral uprightness, home environment and time availability;
as well as the childrens emotional and educational needs
Tender-Age Presumption
As pointed out earlier, there is express statutory recognition that, as a
general rule, a mother is to be preferred in awarding custody of children
under the age of seven. The caveat in Article 213 of the Family Code
cannot be ignored, except when the court finds cause to order otherwise.48
The so-called "tender-age presumption" under Article 213 of the Family
Code may be overcome only by compellingevidence of the mothers
unfitness. The mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable
disease.49
Here, Crisanto cites immorality due to alleged lesbian relations as the
compelling reason to deprive Joycelyn of custody. It has indeed been held
that under certain circumstances, the mothers immoral conduct may
constitute a compelling reason to deprive her of custody.50
But sexual preference or moral laxity alone does not prove parental neglect
or incompetence. Not even the fact that a mother is a prostitute or has
been unfaithful to her husband would render her unfit to have custody of
her minor child.51 To deprive the wife of custody, the husband must clearly
establish that her moral lapses have had an adverse effect on the welfare
of the child or have distracted the offending spouse from exercising proper
parental care.52
53
 CIVIL LAW REVIEW | Family Code Assignment No. 5|22

that circumstance, the Court deemed it in the nine-year-old childs best
interest to free her "from the obviously unwholesome, not to say immoral
influence, that the situation in which the mother ha[d] placed herself might
create in [the childs] moral and social outlook."54
In Espiritu v. CA,55 the Court took into account psychological and case
study reports on the child, whose feelings of insecurity and anxiety had
been traced to strong conflicts with the mother. To the psychologist the
child revealed, among other things, that the latter was disturbed upon
seeing "her mother hugging and kissing a bad man who lived in their
house and worked for her father." The Court held that the "illicit or immoral
activities of the mother had already caused the child emotional
disturbances, personality conflicts, and exposure to conflicting moral values
x x x."
Based on the above jurisprudence, it is therefore not enough for Crisanto
to show merely that Joycelyn was a lesbian. He must also demonstrate that
she carried on her purported relationship with a person of the same sex in
the presence of their son or under circumstances not conducive to the
childs proper moral development. Such a fact has not been shown here.
There is no evidence that the son was exposed to the mothers alleged
sexual proclivities or that his proper moral and psychological development
suffered as a result.
withheld from the person entitled thereto,"57 a situation that does not apply
here.
On the other hand, the ancillary remedy of preliminary mandatory
injunction cannot be granted, because Crisantos right to custody has not
been proven to be "clear and unmistakable."58 Unlike an ordinary
preliminary injunction, the writ of preliminary mandatory injunction is more
cautiously regarded, since the latter requires the performance of a
particular act that tends to go beyond the maintenance of the status
quo.59 Besides, such an injunction would serve no purpose, now that the
case has been decided on its merits.60
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed
Decision of the Court of Appeals is hereby REVERSED and the May 17,
2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito
Gualberto V.
SO ORDERED.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-
Ricafort, ruled in her May 17, 2002 Order that she had found the "reason
stated by [Crisanto] not to be compelling"56 as to suffice as a ground for
separating the child from his mother. The judge made this conclusion after
personally observing the two of them, both in the courtroom and in her
chambers on April 16, 2002, and after a chance to talk to the boy and to
observe him firsthand. This assessment, based on her unique opportunity
to witness the childs behavior in the presence of each parent, should carry
more weight than a mere reliance on the records. All told, no compelling
reason has been adduced to wrench the child from the mothers custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her
custody, the writ of habeas corpus and the preliminary mandatory
injunction prayed for by Crisanto have no leg to stand on. A writ of habeas
corpus may be issued only when the "rightful custody of any person is
 CIVIL LAW REVIEW | Family Code Assignment No. 5|23

7. G.R. No. L-23482 August 30, 1968 the JDRC) for custody of all their children as well as support for them and
herself.
ALFONSO LACSON, petitioner,
vs. However, the spouses, thru the assistance of their respective attorneys,
CARMEN SAN JOSE-LACSON and THE COURT OF succeeded in reaching an amicable settlement respecting custody of the
APPEALS, respondents. children, support, and separation of property. On April 27, 1963 they filed
a joint petition dated April 21, 1963, docketed as special proceeding 6978
----------------------------- of the Court of First Instance of Negros Occidental (hereinafter referred to
as the CFI).
G.R. No. L-23767 August 30, 1968
The important and pertinent portions of the petition, embodying their
CARMEN SAN JOSE-LACSON, plaintiff-appellant, amicable settlement, read as follows:
vs.
ALFONSO LACSON, defendant-appellee. 3. Petitioners have separated last January 9, 1963 when petitioner
Carmen San Jose-Lacson left their conjugal home at the Santa
----------------------------- Clara Subdivision, Bacolod City, did not return, and decided to
reside in Manila.
G.R. No. L-24259 August 30, 1968
4. Petitioners have mutually agreed upon the dissolution of their
ALFONSO LACSON, petitioner-appellee, conjugal partnership subject to judicial approval as required by
vs. Article 191 of the Civil Code of the Philippines the particular
CARMEN SAN JOSE-LACSON, petitioner-appellant. terms and conditions of their mutual agreement being as follows:

CASTRO, J.: (a) There will be separation of property petitioner

Carmen San Jose-Lacson hereby waiving any and all claims
for a share in property that may be held by petitioner
These three cases (G.R. L-23482, L-23767 and L-24259) involving the
Alfonso Lacson since they have acquired no property of any
same parties pose a common fundamental issue the resolution of which will
consequence.
necessarily and inescapably resolve all the other issues. Thus their joinder
in this decision.
(b) Hereafter, each of them shall own, dispose of, possess,
administer and enjoy such separate estate as they may
The antecedent facts are not disputed.
acquire without the consent of the other and all earnings
from any profession, business or industry as may be
Alfonso Lacson (hereinafter referred to as the petitioner spouse) and
derived by each petitioner shall belong to that petitioner
Carmen San Jose-Lacson (hereinafter referred to as the respondent
exclusively.
spouse) were married on February 14, 1953. To them were born four
children, all alive.
(c) The custody of the two elder children named Enrique
and Maria Teresa shall be awarded to petitioner Alfonso
On January 9, 1963 the respondent spouse left the conjugal home in Santa
Lacson and the custody of the younger children named
Clara Subdivision, Bacolod City, and commenced to reside in Manila. She
Gerrard and Ramon shall be awarded to petitioner Carmen
filed on March 12, 1963 a complaint docketed as civil case E-00030 in the
San Jose-Lacson.
Juvenile and Domestic Relations Court of Manila (hereinafter referred to as
 CIVIL LAW REVIEW | Family Code Assignment No. 5|24

(d) Petitioner Alfonso Lacson shall pay petitioner Carmen "be considered relieved of the ... agreement pertaining to the custody and
San Jose-Lacson a monthly allowance of P300.00 for the visitation of her minor children ... and that since all the children are now in
support of the children in her custody. her custody, the said custody in her favor be confirmed pendente lite." On
May 24, 1963 the petitioner spouse opposed the said motion and moved to
(e) Each petitioner shall have reciprocal rights of visitation dismiss the complaint based, among other things, on the grounds of res
of the children in the custody of the other at their judicata and lis pendens. The JDRC on May 28, 1963, issued an order
respective residences and, during the summer months, the which sustained the petitioner spouse's plea of bar by prior judgment
two children in the custody of each petitioner shall be given and lis pendens, and dismissed the case. After the denial of her motion for
to the other except that, for this year's summer months, all reconsideration, the respondent spouse interposed an appeal to the Court
four children shall be delivered to and remain with of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the
petitioner Carmen San Jose-Lacson until June 15, 1963 issue of validity or legality of the compromise agreement in connection only
on which date, she shall return the two elder children with the custody of their minor children. On October 14, 1964 the Court of
Enrique and Maria Teresa to petitioner Alfonso Lacson Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767),
this judgment of course being subject to enforcement by since "no hearing on the facts was ever held in the court below no
execution writ and contempt. evidence, testimonial or documentary, presented only a question of law
pends resolution in the appeal." .
5. Petitioners have no creditors.
The respondent spouse likewise filed a motion dated May 15, 1963 for
WHEREFORE, they respectfully pray that notice of this petition be reconsideration of the compromise judgment dated April 27, 1963 rendered
given to creditors and third parties pursuant to Article 191 of the in special proceeding 6978 of the CFI, wherein she also alleged, among
Civil Code of the Philippines and thereafter that the Court enter its others, that she entered into the joint petition as the only means by which
judicial approval of the foregoing agreement for the dissolution of she could have immediate custody of her minor children, and thereafter
their conjugal partnership and for separation of property, except prayed the CFI to reconsider its judgment pertaining to the custody and
that the Court shall immediately approve the terms set out in visitation of her minor children and to relieve her from the said agreement.
paragraph 4 above and embody the same in a judgment The petitioner spouse opposed the said motion and, on June 1, 1963, filed
immediately binding on the parties hereto to the end that any non- a motion for execution of the compromise judgment and a charge for
compliance or violation of its terms by one party shall entitle the contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated
other to enforcement by execution writ and contempt even though June 22, 1963, denied the respondent spouse's motion for reconsideration,
the proceedings as to creditors have not been terminated.". granted the petitioner spouse's motion for execution, and ordered that
upon "failure on the part of Carmen San Jose-Lacson to deliver the said
Finding the foregoing joint petition to be "conformable to law," the CFI children [i.e., to return the two older children Enrique and Maria Teresa in
(Judge Jose F. Fernandez, presiding) issued an order on April 27, 1963, accordance with her agreement with Alfonso Lacson] to the special sheriff
rendering judgment (hereinafter referred to as the compromise judgment) on or before June 29, 1963, she may be held for contempt pursuant to the
approving and incorporating in toto their compromise agreement. In provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old)
compliance with paragraph 4 (e) of their mutual agreement (par. 3[e] of Rules of Court." From the aforesaid compromise judgment dated April 27,
the compromise judgment), the petitioner spouse delivered all the four 1963 and execution order dated June 22, 1963, the respondent spouse
children to the respondent spouse and remitted money for their support. interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R)
wherein she likewise questioned the validity or legality of her agreement
with the petitioner spouse respecting custody of their children. On February
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein
11, 1965 the Court of Appeals also certified the said appeal to the Supreme
she alleged that she "entered into and signed the ... Joint Petition as the
Court (G.R. No. L-24259), since "no evidence of any kind was introduced
only means by which she could have immediate custody of the ... minor
children who are all below the age of 7," and thereafter prayed that she
 CIVIL LAW REVIEW | Family Code Assignment No. 5|25

before the trial court and ... appellant did not specifically ask to be allowed involved in two appeals, instead of the issue of grave abuse of
to present evidence on her behalf." . discretion in ordering its execution.

The respondent spouse also instituted certiorari proceedings before the (3) The Court of Appeals erred in ruling that the compromise
Court of Appeals (CA-G.R. No. 32384R), now the subject of an appeal by agreement upon which the judgment is based violates article 363
certiorari to this Court (G.R. No. L-23482). In her petition for certiorari of the Civil Code. 1wph1.t
dated June 27, 1963, she averred that the CFI (thru Judge Querubin)
committed grave abuse of discretion and acted in excess of jurisdiction in As heretofore adverted, the aforecited three appeals converge on one focal
ordering the immediate execution of the compromise judgment in its order issue: whether the compromise agreement entered into by the parties and
of June 22, 1963, thus in effect depriving her of the right to appeal. She the judgment of the CFI grounded on the said agreement, are conformable
prayed for (1) the issuance of a writ of preliminary injunction enjoining the to law.
respondents therein and any person acting under them from enforcing, by
contempt proceedings and other means, the writ of execution issued We hold that the compromise agreement and the judgment of the CFI
pursuant to the order of the respondent Judge Querubin dated June 22, grounded on the said agreement are valid with respect to the separation of
1963 in special proceeding 6978 of the CFI, (2) the setting aside, after property of the spouses and the dissolution of the conjugal partnership.
hearing, of the compromise judgment dated April 27, 1963 and the order
dated June 22, 1963, and (3) the awarding of the custody of Enrique and The law allows separation of property of the spouses and the dissolution of
Maria Teresa to her, their mother. As prayed for, the Court of Appeals their conjugal partnership provided judicial sanction is secured beforehand.
issued ex parte a writ of preliminary injunction enjoining the enforcement Thus the new Civil Code provides:
of the order dated June 22, 1963 for execution of the compromise
judgment rendered in special proceeding 6978. The petitioner spouse filed
In the absence of an express declaration in the marriage
an urgent motion dated July 5, 1963 for the dissolution of the writ of
settlements, the separation of property between spouses during
preliminary injunction ex parte which urgent motion was denied by the
the marriage shall not take place save in virtue of a judicial order.
Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse
(Art. 190, emphasis supplied)
likewise filed his answer. After hearing, the Court of Appeals on May 11,
1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its
The husband and the wife may agree upon the dissolution of the
decision granting the petition for certiorari and declaring null and void both
conjugal partnership during the marriage, subject to judicial
(a) the compromise judgment dated April 27, 1963 in so far as it relates to
approval. All the creditors of the husband and of the wife, as well
the custody and right of visitation over the two children, Enrique and
as of the conjugal partnership, shall be notified of any petition for
Teresa, and (b) the order dated June 22, 1963 for execution of said
judicial approval of the voluntary dissolution of the conjugal
judgment. The petitioner spouse moved to reconsider, but his motion for
partnership, so that any such creditors may appear at the hearing
reconsideration was denied by the Court of Appeals in its resolution dated
to safeguard his interests. Upon approval of the petition for
July 31, 1964. From the decision dated May 11, 1964 and the resolution
dissolution of the conjugal partnership, the court shall take such
dated July 31, 1964, the petitioner spouse interposed an appeal to this
measures as may protect the creditors and other third persons.
Court, as abovestated, and assigned the following errors:
(Art. 191, par. 4, emphasis supplied).

(1) The Court of Appeals erred in annulling thru certiorari the lower
In the case at bar, the spouses obtained judicial imprimatur of their
court's order of execution of the compromise judgment.
separation of property and the dissolution of their conjugal partnership. It
does not appeal that they have creditors who will be prejudiced by the said
(2) The Court of Appeals erred in resolving in the certiorari case
arrangements.
the issue of the legality of the compromise judgment which is
 CIVIL LAW REVIEW | Family Code Assignment No. 5|26

It is likewise undisputed that the couple have been separated in fact for at husbands and wives; for necessity is a powerful master in teaching
least five years - the wife's residence being in Manila, and the husband's in the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35;
the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id.,
separation has supervened between them, the propriety of severing their pp. 58-59).
financial and proprietary interests is manifest.
We now come to the question of the custody and support of the children.
Besides, this Court cannot constrain the spouses to live together, as
It is not disputed that it was the JDRC which first acquired jurisdiction over
[I]t is not within the province of the courts of this country to the matter of custody and support of the children. The complaint docketed
attempt to compel one of the spouses to cohabit with, and render as civil case E-00030 in the JDRC was filed by the respondent spouse on
conjugal rights to, the other. .. At best such an order can be March 12, 1963, whereas the joint petition of the parties docketed as
effective for no other purpose than to compel the spouse to live special proceeding 6978 in the CFI was filed on April 27, 1963. However,
under the same roof; and the experience of those countries where when the respondent spouse signed the joint petition on the same matter
the courts of justice have assumed to compel the cohabitation of of custody and support of the children and filed the same with the CFI of
married couple shows that the policy of the practice is extremely Negros Occidental, she in effect abandoned her action in the JDRC. The
questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60). petitioner spouse who could have raised the issue of lis pendens in
abatement of the case filed in the CFI, but did not do so - had the right,
However, in so approving the regime of separation of property of the therefore, to cite the decision of the CFI and to ask for the dismissal of the
spouses and the dissolution of their conjugal partnership, this Court does action filed by the respondent spouse in the JDRC, on the grounds of res
not thereby accord recognition to nor legalize the de facto separation of the judicata and lis pendens. And the JDRC acted correctly and justifiably in
spouses, which again in the language of Arroyo v. Vasquez de Arroyo, dismissing the case for custody and support of the children based on those
supra is a "state which is abnormal and fraught with grave danger to all grounds. For it is no defense against the dismissal of the action that the
concerned." We would like to douse the momentary seething emotions of case before the CFI was filed later than the action before the JDRC,
couples who, at the slightest ruffling of domestic tranquility brought considering:.
about by "mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional ... [T]hat the Rules do not require as a ground for dismissal of a
sallies of passion" without more would be minded to separate from each complaint that there is a prior pending action. They provide only
other. In this jurisdiction, the husband and the wife are obliged to live that there is a pending action, not a pending prior action. 1
together, observe mutual respect and fidelity, and render mutual help and
support (art. 109, new Civil Code). There is, therefore, virtue in making it We agree with the Court of Appeals, however, that the CFI erred in
as difficult as possible for married couples impelled by no better cause depriving the mother, the respondent spouse, of the custody of the two
than their whims and caprices to abandon each other's company. older children (both then below the age of 7).

'... For though in particular cases the repugnance of the law to
dissolve the obligations of matrimonial cohabitation may operate
with great severity upon individuals, yet it must be carefully
remembered that the general happiness of the married life is
secured by its indissolubility. When people understand that they
must live together, except for a very few reasons known to the
law, they learn to soften by mutual accommodation that yoke
which they know they cannot shake off; they become good
husbands and good wives from the necessity of remaining
The Civil Code specifically commands in the second sentence of its article
363 that "No mother shall be separated from her child under seven years
of age, unless the court finds compelling reasons for such measure." The
rationale of this new provision was explained by the Code Commission
thus:
The general rule is recommended in order to avoid many a tragedy
where a mother has seen her baby torn away from her. No man
can sound the deep sorrows of a mother who is deprived of her
 CIVIL LAW REVIEW | Family Code Assignment No. 5|27

child of tender age. The exception allowed by the rule has to be for
"compelling reasons" for the good of the child: those cases must
indeed be rare, if the mother's heart is not to be unduly hurt. If she
has erred, as in cases of adultery, the penalty of imprisonment and
the (relative) divorce decree will ordinarily be sufficient punishment
for her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the situation."
(Report of the Code Commission, p. 12).
The use of the word shall2 in article 363 of the Civil Code, coupled with the
observations made by the Code Commission in respect to the said legal
provision, underscores its mandatory character. It prohibits in no
uncertain: terms the separation of a mother and her child below seven
years, unless such separation is grounded upon compelling reasons as
determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded custody
of the two older children who were 6 and 5 years old, respectively, to the
father, in effect sought to separate them from their mother. To that extent
therefore, it was null and void because clearly violative of article 363 of the
Civil Code.
these compelling reasons are. Needless to state, courts cannot proceed on
mere insinuations; they must be confronted with facts before they can
properly adjudicate.
It might be argued and correctly that since five years have elapsed
since the filing of these cases in 1963, the ages of the four children should
now be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and
Ramon 5. Therefore, the issue regarding the award of the custody of
Enrique and Maria Teresa to the petitioner spouse has become moot and
academic. The passage of time has removed the prop which supports the
respondent spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement regarding
the custody of the children. 1wph1.t
Article 356 of the new Civil Code provides:
Every child:
(1) Is entitled to parental care;

(2) Shall receive at least elementary education;

Neither does the said award of custody fall within the exception because
the record is bereft of any compelling reason to support the lower court's
(3) Shall be given moral and civic training by the parents
order depriving the wife of her minor children's company. True, the CFI
or guardian;
stated in its order dated June 22, 1963, denying the respondent spouse's
motion for reconsideration of its order dated April 27, 1963, that .
(4) Has a right to live in an atmosphere conducive to his
physical, moral and intellectual development.
... If the parties have agreed to file a joint petition, it was because
they wanted to avoid the exposure of the bitter truths which serve
It is clear that the abovequoted legal provision grants to every child rights
as succulent morsel for scandal mongers and idle gossipers and to
which are not and should not be dependent solely on the wishes, much less
save their children from embarrassment and inferiority complex
the whims and caprices, of his parents. His welfare should not be subject to
which may inevitably stain their lives. ..
the parents' say-so or mutual agreement alone. Where, as in this case, the
parents are already separated in fact, the courts must step in to determine
If the parties agreed to submit the matter of custody of the minor children
in whose custody the child can better be assured the right granted to him
to the Court for incorporation in the final judgment, they purposely
by law. The need, therefore, to present evidence regarding this matter,
suppressed the "compelling reasons for such measure" from appearing in
becomes imperative. A careful scrutiny of the records reveals that no such
the public records. This is for the sake and for the welfare of the minor
evidence was introduced in the CFI. This latter court relied merely on the
children.".
mutual agreement of the spouses-parents. To be sure, this was not a
sufficient basis to determine the fitness of each parent to be the custodian
But the foregoing statement is at best a mere hint that there were of the children.
compelling reasons. The lower court's order is eloquently silent on what
 CIVIL LAW REVIEW | Family Code Assignment No. 5|28

Besides, at least one of the children Enrique, the eldest is now eleven
years of age and should be given the choice of the parent he wishes to live
with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court
which, states, inter alia:

... When husband and wife are divorced or living separately and
apart from each other, and the question as to the care, custody,
and control of a child or children of their marriage is brought before
a Court of First Instance by petition or as an incident to any other
proceeding, the court, upon hearing testimony as may be
pertinent, shall award the care, custody and control of each such
child as will be for its best interest permitting the child to choose
which parent it prefers to live with if it be over ten years of age,
unless the parent so chosen be unfit to take charge of the child by
reason of moral depravity, habitual drunkenness, incapacity, or
poverty... (Emphasis supplied).

One last point regarding the matter of support for the children assuming
that the custody of any or more of the children will be finally awarded to
the mother. Although the spouses have agreed upon the monthly support
of P150 to be given by the petitioner spouse for each child, still this Court
must speak out its mind on the insufficiency of this amount. We, take
judicial notice of the devaluation of the peso in 1962 and the steady
skyrocketing of prices of all commodities, goods, and services, not to
mention the fact that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150 according to the
needs of each child.

With the view that we take of this case, we find it unnecessary to pass
upon the other errors assigned in the three appeals.

ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated
July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter
of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of
the Juvenile and Domestic Relations Court (subject matter of G.R. L-
23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of
First Instance of Negros Occidental for further proceedings, in accordance
with this decision. No pronouncement as to costs.