Republic of the Philippines

SUPREME COURT
Manila
EN BANC
GR No. L-3693 July 29, 1950
MARGARET cherubin relapsing-appellant,
vs.
SILVESTRE cherubin turned-appealed.
Manuel A. Argel in representation of the appellant
Maximino V. Bello in representation of the appealed and appealed.

and

appellant.

PAUL J. :
Silvestre Querubin is from Caoayan, Ilocos Sur, of Filipino parents. In 1926 he went to
the United States with the object of studying but with the purpose of returning later to
his native country. He obtained the title of "Master of Arts and Sciences" at the
University of Southern California, an institution domiciled in Los Angeles, California,
where the respondent began to live since 1934.
On October 20, 1943, Silvestre Querubin married the appellant, Margaret Querubin, in
Albuquerque, New Mexico. As a result of this marriage was born Cherub Querubin,
who, at the time of the hearing of the case in the Court of first instance of Ilocos Sur,
was four years old or so.
The appellant filed in 1948 a petition for divorce against the respondent, based on
"mental cruelty." On February 7, 1948 the divorce was granted to the husband under a
counterclaim filed by him and founded on the infidelity of his wife. On April 5, 1949,
at the request of the defendant and contrademandante, (recurred inthis acting of habeas
corpus ) the Superior Court of Los Angeles issued an interlocutory order directing the
following:
It is therefore ordered, adjudged and decreed that the interlocutory judgment of
divorce hereinbefore entered on February 27, 1948, in Book 1891, page 319, and
the same is hereby amended in the following particulars in connection with the
custody of the minor child of The parties only:
(1) The care, custody and control of the minor child of the parties, Querubina
Querubin, is hereby awarded to defendant and cross-complainants;

(2) Said child is to be maintained in a neutral home, subject to the right of

reasonable visitation on the part of both parties to this action;
(3) Each party shall have the right to take said child away from said neutral home
but plaintiff and cross-defendant is restrained from taking said child to her place
of residence;
(4) Each party is restrained from molesting the other, or in any way interfering
with the other's reasonable visitation of said child;
(5) Each party is restrained from removing the child from the State of California
without first securing the permission of the court; Said parties are further
restrained from keeping the child out of the County of Los Angeles for more
than one day without first securing the consent of the court.
The defendant left San Francisco on November 7, 1949, arriving in Manila on the 25th
of the same month. On the 27th of this month I arrived in Caoayan, Ilocos Sur, where
he now lives, taking with him the little girl Cherubina, whom he brought to the
Philippines because, as a father, he wanted to prevent the unseemly conduct of his own
mother. The defendant wanted his daughter to be educated in an environment of high
morality.
On November 30, 1949, at the request of the appellant Margaret, the Superior Court
of Los Angeles, California, I amended her order of April 5, 1949, by ordering the
following:
Under interlocutory decree of March 7, 1949, the child, a girl now 3 1/2 years
old, was granted deft husband, but the child was to be kept in a neutral
home; Both parties were given reasonable visitation and both were restrained
from removing the child out of the state. Deft has taken the child with him to
the Philippine Islands. At time of trial custody was apparently denied because
she was living with another man. She is now married to this man and they have
a well equipped home. Ptf appears to be a devoted mother. She has one child,
the issue of her present marriage, and is also caring for a child that was
abandoned by certain friends of hers. Pt's husband is regularly and permanently
employed. Witnesses testified on behalf of the mother in terms of her motherly
qualities and the condition of her home. She visited the child in question
sufficiently when the child was in the neutral home and brought her toys and
other articles. Service of the order to show was made on deft's attorneys of
record.

The interlocutory decree is modified to provide that custody of the child shall be
awarded to and shall be the right of reasonable visitation. Deft shall pay for the
support of the child $ 30 each month on the 1st day thereof, commencing Jan.
1950.
On the day of the hearing of this cause of habeas corpus in Ilocos Sur, the Respondent
stated that never try to change his citizenship; That when he came to the country he
had about P2,000 of savings; That three weeks after his arrival he received an offer to
teach with monthly P250 salary in the school established by Dr. Sobrepea in Villasis,
Pangasinan; which it has never deprived of parental rights by a court decision or declared
absent from the Philippines, or subject to civil interdiction. According to the court a
quo , the appeal is irreproachable conduct.
On 10 February 1950 the appellant Margaret Cherubin, through his lawyer, presented
in the Court of First Instance of Ilocos Sur an application for habeas corpus claiming
custody of her daughter Querubina, citing as grounds the interlocutory decree of the
court of California Which granted her custody. After the corresponding view, the
court a quo , on February 28, 1950 denied the request. The appellant appeals to this
Court.
The appellant maintains that under Article 48 of Rule 39, the Exhibit A-1 decree of the
Los Angeles, California, Court must be complied with in the Philippines. Its operative
part reads as follows:
The interlocutory decree is modified so as to provide the custodian of the child
shall be awarded and shall have the right to reasonable visitation. Deft shall pay
for the support of the child $ 30 each month on the 1st day thereof, commencing
Jan. 1950.
An interlocutory decree on the custody of a minor is not a final decision. By its nature
it is not firm. It is subject to change as circumstances change. In the first decree the
father was given custody of the minor. At the request of the father, the decree of April
5 was issued, forbidding the mother to bring home at least because she was again in
adulterous relations with another man. When the defendant was no longer in Los
Angeles, because they had already come to the Philippines, the last order was amended
and it was ordered that the custody be entrusted to the appellant, paying her the
recurring $ 30 a month for the maintenance of the child. The pension is not fixed and
is increased or decreased as the needs of the pensioner increase or decrease or as the
economic conditions of the pensioner demand.

Because the interlocutory decree, Exhibit A-1, does not constitute final decision, it can
not be requested in the Philippines. In the United States itself, an interlocutory order
can not be requested in the court of another state.
The rule is of common knowledge that the definitive judgment of a court of
another state between the same parties on the same cause of action, on the merits
of the case is conclusive, but it must be a definitive judgment on the merits
only. Where the judgment is interlocutory Merely, the determination of the
question by the court Which it did not settle rendered and finally adjudge the
rights of the parties. "(National Park Bank vs. Old Colony Trust Co., 186 NYS,
717.)
As already stated the Minnesota decree, to the extent that it is final and not
subject to modification, is entitled to the protection of the full faith and credit
clause of the federal Constitution and must be enforced in this state. If, however,
a part of the Minnesota decree in final, but is subject to modification by the court
which rendered it, then neither the United States Constitution nor the principle
of comity compels the courts of this state to enforce that part of the decree ; For
in court other than the one granting the original decree could undertake to
administer
relief
without
bringing
about
a
conflict
of
authority. (Levine vs. Levine, 187 Pac., 609.)
A judgment rendered by a competent court, having jurisdiction in one state, is
conclusive on the merits in the courts of every other state, when made the basis
of an action and the merits can not be reinvestigated. Our own Supreme Court
so holds. Cook vs. Thornhill, 13 Tex. 293, 65 Am. Dec. 63. But before such a
judgment rendered in one state is entitled to acceptance, in the courts of another
state, the conclusive on the merits, it must be a final judgment and not merely an
interlocutory decree. Freeman on Judgment, Sec. 575; Baugh vs. Baugh, 4 Bibb
(7 Ky.) 556; Brinkley vs. Brinkley, 50 NY 184, 10 Am. Rep.
460; Griggs vs. Becker, 87 Wis. 313, 58 NW 396. (Walker vs. Garland et al., 235
SW, 1078.)
In general, a divorce decree entrusting the custody of a child of the marriage to one of
the spouses is respected by the courts of other states "at the time and under the
circumstances of its rendition but that such a decree has no controlling effects in
another And the courts of the latter state may, in proper proceedings, award the custody
on the basis of the proof of the facts subsequent to the decree which justify the change
in the interest of the child . " (20 ALR, 815).

In the present case the circumstances have changed. Cherubine is no longer in Los
Angeles but in Caoayan, Ilocos Sur. He is under the care of his father. There is an
enormous distance from Los Angeles and the present domicile of the minor and the
cost of the passage to that city would be very high, and it is even possible that it was
beyond the reach of the appellant. There is no evidence that she is able to pay the travel
expenses of the child and the accompanying child. She is not a packet of cigarettes that
can be mailed to Los Angeles.
It is not known that the circumstances that occurred in November of 1949 in Los
Angeles, prevailed in the same state until the moment when the cause was seen in the
Court of first instance of Ilocos Sur. There is also no evidence that the petitioner has
sufficient funds to cover the journey of the Cherub girl from Caoayan, Ilocos Sur, to
Los Angeles, California, and to account for her food, care, and education, more than
anyone else, are interested in the care and education of her daughter, and have savings
of more than P2,000 deposited in a bank, we believe that the court a quo did not err in
rejecting the application.
The Court could not, without satisfactory proof, dispose without remorse of conscience
the surrender of the girl to the lawyer of the appellant: it is her duty to ensure her safety
and well-being. It is not only a question of solving the preferential right of the father
and mother in custody. The vital and transcendental question of the future of the girl is
superior to all considerations. The state watches over its citizens. Article 171 of the Civil
Code provides that "The courts may deprive parents of parental authority or suspend the
exercise of this, if trataren their children too harshly, or if they dieren orders, advice or
corrutores examples." In Cortes against Castillo and other (41 Phil. Rep., 495), the Court
stated that no erro the District Court to appoint grandmother as guardian of two
children, instead of his mother who was convicted of adultery.
Article 154 of the Civil Code provides that "The father, and in its absence the mother,
have power over their legitimate children not emancipated." However, if this faculty is
improperly exercised, the courts, as we have already said, may deprive it of its authority
and entrust the child to other institutions, as provided for in Article 6 of Rule 100,
which is a reproduction of Article 771 Law No. 190. in the case of Lozano against
Martinez and De Vega (36 Phil. Rep., 1040), in which the first, in a writ of habeas corpus ,
against his wife claimed custody of her youngest son 10 years, the Court, on appeal,
declared that the court a quo no abuse of discretion conferred to him by article 771 of
the Code of civil procedure in rejecting the application. This interpretation of the article
concerning the due exercise of the discretion of a court of first instance has been upheld
in the case of Pelayo against Lavin (40 Phil. Rep., 529).

In the application submitted, there is not even claim that the court a quo has abused its
discretion. This Court should not revoke its action.
At the hearing in the Ilocos Sur Court of First Instance, the defendant stated that he
had brought his daughter to the Philippines because he wanted to prevent her from
being aware of the improper behavior and infidelity committed by the mother,
preventing her from seeing her To live with the man who had offended his father. The
defendant said that he wanted his daughter to be raised in an environment of high
moral, and not indirectly sanctioned the wife's infidelity. Under Divorce Law No. 2710,
the guilty spouse has no right to custody of minor children. Current legislation, good
customs and public policy interests advise that the child should be out of the care of a
mother who has violated the oath of fidelity to her husband. We believe that this Court
should not enforce a decree issued by a foreign court, which contravenes our laws and
the sound principles of morality that inform our social structure on family relations.
In Case of Manuela Barretto Gonzales against Augusto Gonzales (58 Phil. Rep., 72), was asked
by the applicant that the divorce obtained by the defendant in Reno, Nevada, on
November 28, 1927, was confirmed and ratified by the Court of First Instance of
Manila. This court rendered the judgment in accordance with the petition. Bearing in
mind Article 9 of the Civil Code, which stipulates that "Laws relating to the rights and
duties of the family, or to the state, condition and legal capacity of persons, compel
Spaniards (Filipinos) even if they reside in foreign lands" and Article 11 of the same
code, which says in part that "prohibitive laws concerning persons, their acts or their
property, and those which have as their object public order and good customs, shall not
be without effect by law or Judgments handed down, nor by provisions or conventions
agreed in a foreign country, "this Court, on appeal, declare:" Litigants, by mutual
agreement, can not compel the courts to approve their own acts, nor allow personal
relationships Of the citizens of these Islands are affected by decrees of foreign countries
in a manner which our Government believes is contrary to public order and to the
moral right, "and revoke the decision of the lower court.
Foreign court judgments can not be enforced in the Philippines if they are contrary to
laws, customs and public order. If such decisions, by simple theory of reciprocity,
courtesy courtesy and international urbanity are sufficient basis for our courts to decide
accordingly, then our courts would be in the poor position of having to issue sentences
contrary to our laws, customs and public order. This is absurd.
In Ingenohl against Olsen & Co. (47 Phil. Rep., 199), the alcanse of comity was
discussed. Article 311 of the Code of Civil Procedure, which is today Article 48, Rule
39, was the basis of the action filed by Ingenohl. He asked in his case that the Court of
First Instance of Manila should issue a judgment in accordance with that issued by the

Supreme Court of Hong Kong. After the corresponding hearing, the court gives
judgment in favor of the plaintiff with legal interests and costs. On appeal, it is alleged
that the lower court failed to declare that the decision and judgment of the Supreme
Court of Hong Kong was rendered and recorded as a result of a manifest error of fact
and law. This Court stated that "It is a well-established principle that, in the absence of
a treaty or law, and by virtue of courtesy and international law, a judgment rendered by
a court of competent jurisdiction of a foreign country, in which the parties Appearing
and discussing a matter in substance, shall be recognized and enforced in any other
foreign country. " But taking into account Article 311 of the Code of Civil Procedure
which provides that "the judgment may be rejected on the basis of lack of competence,
or of having been rendered without prior notice to the party, or that there was collusion,
fraud or manifest error In law or in fact, "I conclude:" Under that Act, when a person
tries to enforce a foreign judgment, the defendant has the right to exercise any such
defense, and if it can be shown that there is any of them, Will destroy the effects of the
sentence. " I reject the lower court's decision and declare and adjudge that "the
judgment of the Hong Kong court against the defendant constitutes a manifest error
of fact and of law and, for that reason, should not be required to be enforced in the
Philippines . "
If the request is granted, the minor would be under the care of his mother who was
declared to be judicially guilty of marital infidelity; He would live under a roof with the
man who dishonors his mother and offends his father; He would play and grow with
the fruit of his mother's adulterous love; Would reach puberty with the idea that a
woman who was unfaithful to her husband has the right to custody of her daughter. In
such an environment a girl can not be raised in an adequate way: if she learned during
her adolescence that her father had been betrayed by her mother to the man with whom
she lives, that girl would live under an impression of moral inferiority of incalculable
consequences , And therefore he would never be happy; And if, under the influence of
his mother, he came to believe that the infidelity of a wife is only an incident as fleeting
as changing a headdress, the girl would go down the path of perdition. And the moral
education your stepfather can give you can hardly be better.
If the request is denied, the girl would live with her father with the benefit of exclusive
paternal care, and not with the divided attention of a mother who has to attend to her
husband, her two daughters and a third girl, the protected one. For the welfare of the
youngest Cherubine, which is what matters most in the present case, their custody by
the father should be considered preferential.
In the same United States, the cardinal point that the courts consider, is not the claim
of the parties or the force of the interlocutory decree, but the welfare of the minor.

A consideration of all the facts and circumstances leads to the conclusion that
comity does not require the courts of this state, regardless of the well-being of
the child, to lend their aid to the enforcement of the Iowa decree by returning
Winifred to the custody Of her grandmother. A child is not to chattel to which
title and the right of possession may be secured by the decree of any court. If the
decree had been rendered by a domestic court of competent jurisdiction, it would
not have conclusively established the right to custody of the child. In a contest
between rival claimants, this court would have been free, notwithstanding the
decree, to award the custody solely with an eye to the child's welfare. (State ex
rel. Aldridge vs. Aldridge, 204 NW 324.)
On habeas corpus by the mother to Obtain possession from the father of two
children aged four and six years, Whose custody she Alleged HAD Been
Awarded her in divorce proceedings in another state, it Appeared That the
mother was without property, and HAD no means of Support save her personal
earnings of $ 15 per month, was in poor health, and lived with her mother, in
immoral surroundings, and that the father was an industrious and sober man,
earnings $ 100 per month. Held, That the welfare of the children was the only
thing to be considered, and a judgment awarding custody to the mother Their
Should be reversed. (Kentzler vs. Kentzler, 28 Pac., 370.)
The appellant, as a last resort, invokes the comity of nations . Reciprocity, courtesy among
nations is not absolute. It rules when there is a treaty and there is equality of
legislation. The doctrine of reciprocity is adopted when the foreign court has
jurisdiction to hear the case, the parties have appeared and discussed the matter in the
background. Sometimes it is granted as a privilege but not as a strict right. The courtesy
requested has not been recognized by this Court when I declare that the rights and
duties of family, state, condition and legal capacity of persons are governed by the laws
of the Philippines and not those of America (Gonzales against Gonzales, supra ) and He
did not give validity to the decision of the Supreme Court of Hong Kong because it
was erroneous in its conclusions of fact and law (Ingenohl against Olsen & Co., supra ).
Reciprocity between the states of the American Union is not absolute. It is not an
unwavering rule. The several cases cited above show it. Here is another case:
On the question of comity, esta Said court in the habeas corpus case of In
re Stockman, 71 Mich. 180, 38 NW 876:
"Comity can not be considered in this case, when the future welfare of the child
is the vital question in the case." The good of the child is superior to all other

considerations. cases of infants, Whether the question is raised upon a writ

of habeas corpus or in a court of chancery. " ( Ex parte Leu, NW 215, 384.)
We have already seen that the interlocutory order ceding custody of the minor to the
appellant is in conflict with the express provisions of the legislation in force in the
Philippines. In the first decree and in the enmendatorio the custody of the minor was
entrusted to the father and the mother was prohibited in the amended order to take the
child to his house because he was again in illegal relations with another man. But the
last decree of amendment, contrary to the sense of justice, to the law, and to good
manners, I entrust the custody of the child to which he was an unfaithful wife because
he was already married to him who committed adultery. And under the doctrine
of comity of nations , the appellant contends that must be met in the Philippines that
decree. We believe that for the various reasons stated above, the claim is unsustainable.
The judgment appealed is upheld. The appellant shall bear the costs.
Ozaeta,
Bengzon,
Montemayor
Tuason, J., concurs in the result.

and

Reyes,

JJ., Concur.