JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent.
collusion, the prosecuting attorney shall intervene for the State in order to take care that
1.LEGAL SEPARATION; CONFESSION OF JUDGMENT; EXISTENCE OF
EVIDENCE OF ADULTERY INDEPENDENTLY OF CONFESSION.—Where there
is evidence of the adultery independently of the defendant's statement agreeing to the
legal separation, the decree of separation should be granted, since it would not be
based on the confession but upon the evidence presented by the plaintiff. What the
law prohibits is a judgment based exclusively on defendant's confession.
2.ID.; ID.; ADMISSIBILITY OF CONFESSION MADE OUTSIDE OF COURT.—
Article 101 of the new Civil Code does not exclude, as evidence, any admission or
confession made by the defendant outside of the court.
3.ID.; ID.; COLLUSION MAY NOT BE INFERRED FROM CONFESSION.—
Collusion may not be inferred from the mere fact that the guilty party confesses to
the offense of adultery, desires the divorce and makes no defense.
4.ID.; CONDONATION; FAILURE OF HUSBAND TO SEARCH FOR ERRING
WIFE.—In the case at bar, the wife left her husband after the latter discovered her
dates with other men. Held: The failure of the husband actively to search for his wife
and take her home does not constitute condonation or consent to the adultery. It was
not his duty to search for her.
PETITION for review by certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Joselito J. Coloma for petitioner.
No appearance for 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
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 defedant 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 confesssion 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 merely prohibits a decree of
separation upon a confession of judgment. Confession of judgment usually happens when
the defendant appears in court and confesses the right of plaintiff to judgment or files a
pleading expressly agreeing to the plaintiff's demand.2 This did not occur.
Yet, even supposing that the above statement of defendant constituted practically a
confession of judgment, inasmuch as there is evidence of the adultery independently of such
statement, the decree may and should be granted, since it would not be based on her
confession, but upon evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendant's confession. If a confession defeats the
action ipso facto, any defendant who opposes the separation will immediately confess _____________
judgment, purposely to prevent it.
The mere circumstance that defendant told the Fiscal that she "liked also" 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 indicated her willingness to be separated. Yet, the
law does not order the dismissal. Allowing the proceeding to continue, it takes precautions
against collusion, which implies more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the
separation and admitted the commission of the offense, it should be doubly careful lest a
collusion exists. (The Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
"* * * between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of
a valid defense, for the purpose of enabling the other to obtain a 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.
Here, the offense of adultery had really taken place, according to the evidence. The
defendant could not have falsely told the adulterous acts to the Fiscal, because her story
might send her to jail the moment her husband requests the Fiscal to prosecute. She could
not have practiced deception at such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere
fact that the guilty party confesses to the offense and thus enables the other party to
procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d)
1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d]
688.)
And proof that the defendant desires the divorce and makes no defense, is not by itself
collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.)
We do not think plaintiff's failure actively to search for defendant and take her home
(after the latter had left him in 1952) constituted condonation or consent to her adulterous
relations with Orzame. It will be remembered that she "left" him after having sinned with
Arcalas and after he had 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.
Two decisions3 are cited wherein from apparently similar circumstances, this Court
inferred the husband's consent to or condonation of his wife's misconduct. However, upon
careful examination, a vital difference will be found: in both instances, the husband had
abandoned his wife; here it was the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse
the appealed decision and decree a legal separation between these spouses, with all the
consequent effects. Costs of all instances against Serafina Florenciano. So ordered.
Parás, C. J., Padilla, Montemayor, Labrador, Concepción, Reyes, J. B.
L., Endencia, Barrera, and Gutiérrez David, JJ., concur.

Decision reversed.

A.M. No. RTJ-04-1861. July 30, 2004.*
(Formerly OCA IPI 01-1197-RTJ)
MARGIE MACIAS CORPUS, complainant, vs. JUDGE WILFREDO G. OCHOTORENA,
RTC–BR. 11, SINDANGAN, ZAMBOANGA DEL NORTE, respondent.
Courts; Judges; Pleadings and Practice; Motions to Dismiss; Where the last pleading
was a defendant’s motion to dismiss, the judge should first resolve the motion and wait for
the plaintiff ’s motion to set the case for pre-trial, and not railroad the case by completely
ignoring the motion to dismiss and proceeding to trial on the merits.—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 completely
ignoring the fact that her Motion to Dismiss, which was filed within the 30-day
reglementary period, was still pending resolution. The respondent judge disregarded the
provisions of Section 1, Rule 18 of the 1997 Rules on Civil Procedure, which states that:
“After the last pleading has been served and filed, it shall be the duty of the plaintiff to
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 should have first resolved the
motion and then waited for Mr. Macias’ motion to set the case for pre-trial. What happened
in the case is a classic example of “railroading” or “procedural short-cut.” Instead of
resolving the Motion to Dismiss, the respondent judge completely ignored it and proceeded
with the trial on the merits of the case by receiving Mr. Macias’ evidence ex-parte.
Same; Same; Same; Same; In holding the trial of the case up to its completion, the
respondent judge acted utterly oblivious to the pending Motion for Reconsideration of his
order denying the Motion to Dismiss.—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.
Same; Same; Same; Declaration of Nullity; Defaults; The Rules of Court prohibits
default proceedings in cases involving declaration of nullity of marriage.—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.
Same; Same; Same; Same; The report of the Public Prosecutor is a condition sine qua
non for further proceedings to go on in an action for declaration of nullity of marriage where
the defending party fails to answer.—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
proceedings to go on in the case. Respondent judge ignored this procedural rule. While the
record shows that Public Prosecutor Arturo M. Paculanag had filed a Certification dated
May 04, 2001 with 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.
Same; Same; Same; Gross Ignorance of the Law; 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.—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. When 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.
ADMINISTRATIVE MATTER in the Supreme Court. Bias, Partiality, and Violation of
Judicial Conduct.
The facts are stated in the opinion of the Court.
Llego & Llego Law Office for complainant.
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 February 6, 2001, a verified Complaint for declaration of nullity of marriage was
filed against Mrs. Macias by Mariano Joaquin S. Macias (“Mr. Macias”), her husband and
incumbent presiding judge of RTC, Branch 11, Liloy, Zamboanga Del Norte. The case was
raffled to the respondent’s court.2 On the same day the Complaint was filed, the respondent
immediately issued Summons to Mrs. Macias.3 However, the Summons was not served on
Mrs. Macias for the reason that her whereabouts were allegedly unknown. 4 Consequently,
Mr. Macias filed a motion to serve summons by publication. The respondent granted the
motion in 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 publication of
the Summons in the local weekly newspaper, “Tingog Peninsula,” based in Dipolog City in
its March 11-17, 2001 issue.6
 Mrs. Macias claims she learned of the aforesaid publication of Summons during the
first week of April 2001. Without delay, on April 10, 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 first acting upon the motion, the respondent judge set the
hearing on the merits of the subject case on April 19, 2001, or one day before.
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.
Without waiting for the OCA’s Indorsement, the respondent judge submitted
his Comment/Answer12 on May 25, 2001.13
The respondent judge claims that the instant Complaint is fatally defective because it is
not supported by the affidavits of persons who have knowledge of the facts and documents
needed to substantiate the allegations therein. Also, he asserts that malice, bad faith, and
the intention to harass, embarrass and humiliate him had motivated Mrs. Macias to file the
said Complaint.
The respondent judge disputes violating Mrs. Macias’ right to due process. He argues
that Mrs. Macias was given the opportunity to be heard but 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 case would show that the proceedings was done in good faith and
based on law and jurisprudence.
Furthermore, the respondent judge posits that even if he may have committed an error,
such should be corrected by availing of judicial 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 committed malice or gross ignorance that he should be administratively
sanctioned. Moreover, respondent claims that a Petition14 dated May 11, 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.
Finally, respondent judge insists that his Decision15 is valid and prays for the dismissal
of the instant Complaint for lack of merit.
In her Reply16 which she filed on July 19, 2001, Mrs. Macias admits having filed a
petition for certiorari17 under Rule 65 of the 1997 Rules of Civil 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 18, 2001.18
In addition, Mrs. Macias claims that the Court of Appeals decided the 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 Decision20 rendered 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 completely ignoring the fact that
her Motion to Dismiss, which was filed within the 30-day reglementary period, was still
pending resolution.
The respondent judge disregarded the provisions of Section 1, Rule 18 of the 1997 Rules
on Civil Procedure, which states that: “After the last pleading has been served and filed, it
shall be the duty of the plaintiff to 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 should have first resolved the motion and then waited for Mr. Macias’ motion to set
the case for pre-trial.
What happened in the case is a classic example of “railroading” or “procedural short-
cut.” Instead of resolving the Motion to Dismiss, the respondent judge completely ignored it
and proceeded with the trial on the merits of the case by receiving Mr. Macias’ evidence ex-
parte.
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 proceedings to go on in the case. _______________
Respondent judge ignored this procedural rule.
While the record shows that Public Prosecutor Arturo M. Paculanag had filed
a Certification dated May 04, 200125 with 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.
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. 26 When
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 meted a penalty,29 the Court finds a fine of
Twenty Thousand Pesos (P20,000.00) appropriate.
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.
Puno (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.
Respondent meted a P20,000 fine for gross ignorance of the law and incompetence.
Notes.—Where the complaint alleges that the couple were married in accordance with
the Civil Code, it is the said Code that is applicable in a complaint for declaration of nullity
of marriage. (Tamano vs. Ortiz, 292 SCRA 584 [1998])
Parties to a marriage should not be permitted to judge for themselves its nullity—only
competent courts have such authority. (Marbella-Bobis vs. Bobis, 336 SCRA 747 [2000])

——o0o——
 G.R. No. 137590. March 26, 2001.*
FLORENCE MALCAMPO-SIN, petitioner, vs. PHILIPP T. SIN, respondent.
Marriage; Husband and Wife; Annulment of Marriage; 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.—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, 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).”
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Romeo B. Igot Law Offices for petitioner.
Margaret Chua for 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 our traditional and
religious concepts of morality and provides the very bedrock on which our society finds
stability.2 Marriage is immutable and when both spouses give their consent to enter it, their
consent becomes 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 Appeals 5 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
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.
On June 16, 1995, the trial court dismissed Florence’s petition.9
On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court
of Appeals.10
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 preceeding 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.
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 manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto.
“(4)Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like 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
WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the Court
of Appeals in CA-G.R. CV No. 51304, promulgated On April 30, 1998 and the decision of the
Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16, 1995.
Let the case be REMANDED to the trial court for proper trial.
No costs.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Kapunan and Ynares-Santiago, JJ., concur.
Judgments of the Court of Appeals and the trial court reversed and set aside, case
remanded to the latter.
 annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney
G.R. No. 116607. April 10, 1996.*
or fiscal is ordered to appear on behalf of the state for the purpose of preventing any
EMILIO R. TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L.
collusion between the parties and to take care that their evidence is not fabricated or
TUASON, respondents.
suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare
Actions; Judgments; Relief from Judgment; A final and executory judgment or order of
him or her in default but instead, should order the prosecuting attorney to determine if
the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or
collusion exists between the parties. The prosecuting attorney or fiscal may oppose the
excusable negligence.—A petition for relief from judgment is governed by Rule 38, Section 2
application for legal separation or annulment through the presentation of his own evidence,
of the Revised Rules of Court. Under the rules, a final and executory judgment or order of
if in his opinion, the proof adduced is dubious and fabricated.
the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or
Same; Same; Same; Same; Same; Same; Same; The Constitution is committed to the policy of
excusable negligence. In addition, the petitioner must assert facts showing that he has a
strengthening the family as a basic social institution.—Our Constitution is committed to the
good, substantial and meritorious defense or cause of action. If the petition is granted, the
policy of strengthening the family as a basic social institution. Our family law is based on
court shall proceed to hear and determine the case as if a timely motion for new trial had
the policy that marriage is not a mere contract, but a social institution in which the state is
been granted therein.
vitally interested. The state can find no stronger anchor than on good, solid and happy
Same; Same; Same; Attorneys; The failure of counsel to notify his client on time of an
families. The break up of families weakens our social and moral fabric and, hence, their
adverse judgment to enable the latter to appeal therefrom is negligence which is not
preservation is not the concern alone of the family members.
excusable.—The failure of petitioner’s counsel to notify him on time of the adverse judgment
Same; Same; Same; Same; Same; Same; Same; Where the respondent in a petition for
to enable him to appeal therefrom is negligence which is not excusable. Notice sent to
annulment vehemently opposed the same, and where he does not allege that evidence was
counsel of record is binding upon the client and the neglect or failure of counsel to inform
suppressed or fabricated by any of the parties, the non-intervention of a prosecuting attorney
him of an adverse judgment resulting in the loss of his right to appeal is not a ground for
to assure lack of collusion between the contending parties is not fatal to the validity of the
setting aside a judgment valid and regular on its face.
proceedings in the trial court.—The role of the prosecuting attorney or fiscal in annulment of
Same; Same; Same; Same; Similarly inexcusable is the failure of a counsel to inform
marriage and legal separation proceedings is to determine whether collusion exists between
the trial court of his client’s confinement and medical treatment as the reason for his non-
the parties and to take care that the evidence is not suppressed or fabricated. Petitioner’s
appearance at the scheduled hearings.—Similarly inexcusable was the failure of his former
vehement opposition to the annulment proceedings negates the conclusion that collusion
counsel to inform the trial court of petitioner’s confinement and medical treatment as the
existed between the parties. There is no allegation by the petitioner that evidence was
reason for his non-appearance at the scheduled hearings. Petitioner has not given any
suppressed or fabricated by any of the parties. Under these circumstances, we are convinced
reason why his former counsel, intentionally or unintentionally, did not inform the court of
that the non-intervention of a prosecuting attorney to assure lack of collusion between the
this fact. This led the trial court to order the case deemed submitted for decision on the
contending parties is not fatal to the validity of the proceedings in the trial court.
basis of the evidence presented by the private respondent alone. To compound the
Same; Same; Same; Same; Same; Same; Psychological Incapacity; The finding of the
negligence of petitioner’s counsel, the order of the trial court was never assailed via a
trial court as to the existence or nonexistence of a party’s psychological incapacity at the time
motion for reconsideration.
of the marriage is final and binding on the Supreme Court.—Suffice it to state that the
Same; Same; Same; A petition for relief from judgment is an equitable remedy,
finding of the trial court as to the existence or nonexistence of petitioner’s psychological
allowed only in exceptional cases where there is no other available or adequate remedy. Relief
incapacity at the time of the marriage is final and binding on us. Petitioner has not
will not be granted to a party who seeks avoidance from the effects of the judgment when the
sufficiently shown that the trial court’s factual findings and evaluation of the testimonies of
loss of the remedy at law was due to his own negligence.—A petition for relief from judgment
private respondent’s witnesses vis-a-vis petitioner’s defenses are clearly and manifestly
is an equitable remedy; it is allowed only in exceptional cases where there is no other
erroneous.
available or adequate remedy. When a party has another remedy available to him, which
may be either a motion for new trial or appeal from an adverse decision of the trial court,
and he was not prevented by fraud, accident, mistake or excusable negligence from filing PETITION for review on certiorari of a decision of the Court of Appeals.
such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief
will not be granted to a party who seeks avoidance from the effects of the judgment when The facts are stated in the opinion of the Court.
the loss of the remedy at law was due to his own negligence; otherwise the petition for relief Siguion Reyna, Montecillo & Ongsiako for petitioner.
can be used to revive the right to appeal which had been lost thru inexcusable negligence. Salonga, Hernandez & Allado for private respondent.
Same; Same; Family Code; Marriage; Annulment; Legal Separation; Prosecutors; A
grant of annulment of marriage or legal separation by default is fraught with the danger of PUNO, J.:
collusion, hence, in all cases for annulment, declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for
This petition for review on certiorari seeks to annul and set aside the decision dated July 29,
the purpose of preventing any collusion between the parties and to take care that their
1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner’s appeal from an
evidence is not fabricated or suppressed.—A grant of annulment of marriage or legal
order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769.
separation by default is fraught with the danger of collusion. Hence, in all cases for
 This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial
Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage
to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and
petitioner were married on June 3, 1972 and from this union, begot two children; that at the
time of the marriage, petitioner was already psychologically incapacitated to comply with
his essential marital obligations which became manifest afterward and resulted in violent
fights between husband and wife; that in one of their fights, petitioner inflicted physical
injuries on private respondent which impelled her to file a criminal case for physical injuries
against him; that petitioner used prohibited drugs, was apprehended by the authorities and
sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner
was a womanizer, and in 1984, he left the conjugal home and cohabited with three women
in succession, one of whom he presented to the public as his wife; that after he left the
conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for
the tuition fees of their children compelling private respondent to accept donations and dole-
outs from her family and friends; that petitioner likewise became a spendthrift and abused
his administration of the conjugal partnership by alienating some of their assets and
incurring large obligations with banks, credit card companies and other financial
institutions, without private respondent’s consent; that attempts at reconciliation were
made but they all failed because of petitioner’s refusal to reform. In addition to her prayer
for annulment of marriage, private respondent prayed for powers of administration to save
the conjugal properties from further dissipation.1
Petitioner answered denying the imputations against him. As affirmative defense, he
claimed that he and private respondent were a normal married couple during the first ten
years of their marriage and actually begot two children during this period; that it was only
in 1982 that they began to have serious personal differences when his wife did not accord
the respect and dignity due him as a husband but treated him like a persona non grata; that
due to the “extreme animosities” between them, he temporarily left the conjugal home for a
“cooling-off period” in 1984; that it is private respondent who had been taking prohibited
drugs and had a serious affair with another man; that petitioner’s work as owner and
operator of a radio and television station exposed him to malicious gossip linking him to
various women in media and the entertainment world; and that since 1984, he experienced
financial reverses in his business and was compelled, with the knowledge of his wife, to
dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner
petitioned the court to allow him to return to the conjugal home and continue his
administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private respondent
presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and
marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close
friend of the spouses, and Atty. Jose F. Racela IV, private respondent’s counsel. Private
respondent likewise submitted documentary evidence consisting of newspaper articles of her
husband’s relationship with other women, his apprehension by the authorities for illegal
possession of drugs; and copies of a prior church annulment decree.2 The parties’ marriage
was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed
by the National Appellate Matrimonial Tribunal in 1986.3
During presentation of private respondent’s evidence, petitioner, on April 18, 1990, filed
his Opposition to private respondent’s petition for appointment as administratrix of the
conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception of
petitioner’s evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved
for a postponement on the ground that the principal counsel was out of the country and due
to return on the first week of June.4 The court granted the motion and reset the hearing to
June 8, 1990.5
On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the
court declared petitioner to have waived his right to present evidence and deemed the case
submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private
respondent’s marriage to petitioner and awarding custody of the children to private
respondent. The court ruled:
“WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason
and Emilio R. Tuason on June 3, 1972 is declared null and void ab initio on the ground of
psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let
herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila
where the marriage was contracted and in the registry of Makati, Metro Manila where the
marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the
defendant is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other effects of
annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines.”6
Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was
taken from the decision.
On September 24, 1990, private respondent filed a “Motion for Dissolution of Conjugal
Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties.” 7 Petitioner
opposed the motion on October 17, 1990.8
Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the
trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.9
Petitioner appealed before the Court of Appeals the order of the trial court denying his
petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the
appeal and affirmed the order of the trial court.10
Hence this petition.
The threshold issue is whether a petition for relief from judgment is warranted under
the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court which provides: “Section 2. Petition to Court of First Instance for relief from
judgment or other proceeding thereof.—When a judgment or order is entered, or any other
proceeding is taken, against a party in a Court of First Instance through fraud, accident,
mistake, or excusable negligence, he may file a petition in such court and in the same cause
praying that the judgment, order or proceeding be set aside.”
Under the rules, a final and executory judgment or order of the Regional Trial Court may be
set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the
petitioner must assert facts showing that he has a good, substantial and meritorious
defense or cause of action.11 If the petition is granted, the court shall proceed to hear and
determine the case as if a timely motion for new trial had been granted therein.12
 In the case at bar, the decision annulling petitioner’s marriage to private respondent
had already become final and executory when petitioner failed to appeal during the
reglementary period. Petitioner however claims that the decision of the trial court was null
and void for violation of his right to due process. He contends he was denied due process
when, after failing to appear on two scheduled hearings, the trial court deemed him to have
waived his right to present evidence and rendered judgment on the basis of the evidence for
private respondent. Petitioner justifies his absence at the hearings on the ground that he
was then “confined for medical and/or rehabilitation reasons.”13 In his affidavit of merit
before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the
Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990
petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation
Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine
Constabulary—Integrated National Police.14 The records, however, show that the former
counsel of petitioner did not inform the trial court of this confinement. And when the court
rendered its decision, the same counsel was out of the country for which reason the decision
became final and executory as no appeal was taken therefrom. 15
The failure of petitioner’s counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel
of record is binding upon the client and the neglect or failure of counsel to inform him of an
adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside
a judgment valid and regular on its face.16
Similarly inexcusable was the failure of his former counsel to inform the trial court of
petitioner’s confinement and medical treatment as the reason for his non-appearance at the
scheduled hearings. Petitioner has not given any reason why his former counsel,
intentionally or unintentionally, did not inform the court of this fact. This led the trial court
to order the case deemed submitted for decision on the basis of the evidence presented by
the private respondent alone. To compound the negligence of petitioner’s counsel, the order
of the trial court was never assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He may have
lost his right to present evidence but he was not denied his day in court. As the records
show, petitioner, through counsel, actively participated in the proceedings below. He filed
his answer to the petition, cross-examined private respondent’s witnesses and even
submitted his opposition to private respondent’s motion for dissolution of the conjugal
partnership of gains.17
A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional
cases where there is no other available or adequate remedy. When a party has another
remedy available to him, which may be either a motion for new trial or appeal from an
adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking such appeal, he cannot avail himself
of this petition.18 Indeed, relief will not be granted to a party who seeks avoidance from the
effects of the judgment when the loss of the remedy at law was due to his own negligence;
otherwise the petition for relief can be used to revive the right to appeal which had been lost
thru inexcusable negligence.19
Petitioner also insists that he has a valid and meritorious defense. He cites the Family
Code which provides that in actions for annulment of marriage or legal separation, the
prosecuting officer should intervene for the state because the law “looks with disfavor upon
the haphazard declaration of annulment of marriages by default.” He contends that when
he failed to appear at the scheduled hearings, the trial court should have ordered the
prosecuting officer to intervene for the state and inquire as to the reason for his non-
appearance.20
Articles 48 and 60 of the Family Code read as follows:
“Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court
shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State
to take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.”
xxx
“Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the evidence is not
fabricated or suppressed.”21
A grant of annulment of marriage or legal separation by default is fraught with the danger
of collusion.22 Hence, in all cases for annulment, declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for
the purpose of preventing any collusion between the parties and to take care that their
evidence is not fabricated or suppressed. If the defendant spouse fails to answer the
complaint, the court cannot declare him or her in default but instead, should order the
prosecuting attorney to determine if collusion exists between the parties. 23 The prosecuting
attorney or fiscal may oppose the application for legal separation or annulment through the
presentation of his own evidence, if in his opinion, the proof adduced is dubious and
fabricated.24 Our Constitution is committed to the policy of strengthening the family as a
basic social institution.25 Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the state is vitally interested. The state can find
no stronger anchor than on good, solid and happy families. The break up of families
weakens our social and moral fabric and, hence, their preservation is not the concern alone
of the family members.
The facts in the case at bar do not call for the strict application of Articles 48 and 60 of
the Family Code. For one, petitioner was not declared in default by the trial court for failure
to answer. Petitioner filed his answer to the complaint and contested the cause of action
alleged by private respondent. He actively participated in the proceedings below by filing
several pleadings and cross-examining the witnesses of private respondent. It is crystal
clear that every stage of the litigation was characterized by a no-holds barred contest and
not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the parties and to
take care that the evidence is not suppressed or fabricated. Petitioner’s vehement opposition
to the annulment proceedings negates the conclusion that collusion existed between the
parties. There is no allegation by the petitioner that evidence was suppressed or fabricated
by any of the parties. Under these circumstances, we are convinced that the non-
intervention of a prosecuting attorney to assure lack of collusion between the contending
parties is not fatal to the validity of the proceedings in the trial court.
Petitioner also refutes the testimonies of private respondent’s witnesses, particularly
Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner
alleges that if he were able to present his evidence, he could have testified that he was not
psychologically incapacitated at the time of the marriage as indicated by the fact that
during their first ten years, he and private respondent lived together with their children as
one normal and happy family, that he continued supporting his family even after he left the
conjugal dwelling and that his work as owner and operator of a radio and television
corporation places him in the public eye and makes him a good subject for malicious gossip
linking him with various women. These facts, according to petitioner, should disprove the
ground for annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or non-existence
of petitioner’s psychological incapacity at the time of the marriage is final and binding on
us.26 Petitioner has not sufficiently shown that the trial court’s factual findings and
evaluation of the testimonies of private respondent’s witnesses vis-a-vis petitioner’s
defenses are clearly and manifestly erroneous.27
IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the
Court of Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.
Regalado (Chairman), Romero and Mendoza, JJ., concur.
Torres, Jr., J., On leave.
Petition denied, judgment affirmed.
Notes.—Earnest efforts towards a compromise is a condition precedent to filing of suits
between members of the same family, non-compliance of which, complaint is assailable at
any stage of the proceedings for lack of cause of action. (O’Laco vs. Co Cho Chit, 220 SCRA
656 [1993])
Whether one spouse is psychologically incapacitated should be immediately determined
as there is no point in unreasonably delaying the resolution of the petition and prolonging
the agony of the wedded couple who still have the right to a renewed blissful life either
alone or in the company of each other. (Salita vs. Magtolis, 233 SCRA 100 [1994])

——o0o——

G.R. No. 174485. July 11, 2007.*
AGNES GAMBOA-HIRSCH, petitioner, vs. HON. COURT OF APPEALS and FRANKLIN
HARVEY HIRSCH, respondents.
Parent and Child; Custody; Child and Youth Welfare Code; Convention on the Rights
of the Child; International Law; 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.”—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).” 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.
Same; Same; Family Code; The so-called “tender age presumption” under Article 213
of the Family Code may be overcome only by compelling evidence of the mother’s unfitness.—
The so-called “tenderage presumption” under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother’s 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. 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 mother’s
custody.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the resolution of the Court.
E.C. Antiquiera and Associates for petitioner.
Asuncion Law Office for private respondent.
R E S O LU T I O N
VELASCO, JR., J.:
they stay in Boracay Island. On March 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklin’s 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 CA’s August 3, 2006
Resolution for lack of merit.
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. 0303-04-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].

This is a petition for certiorari1 under Rule 65 which seeks to set aside the June 8, 2006 (C)
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-
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to
Hirsch (Agnes) of their minor daughter Simone Noelle Hirsch (Simone); and the August 3,
lack or excess of jurisdiction when it granted joint custody in utter disregard of the
2006 CA Resolution3 denying petitioner’s Motion for Reconsideration for lack of merit.
provisions of the Family Code, as to minors seven (7) years of age and below, in relation to
Petitioner also prays for the issuance of a temporary restraining order/injunction preventing
the jurisprudence and pronouncements laid down by the Honorable Supreme Court on the
the execution and implementation of the assailed June 8, 2006 CA Decision.
matter of the said provision.4
Franklin and Agnes were married on December 23, 2000 in the City of Bacolod, and
Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioner’s
established their conjugal dwelling in Diniwid, Boracay Island, Malay, Aklan. On December
prayer for the issuance of a temporary restraining order. Petitioner then filed a Motion for
21, 2002, a child was born to them and was named Simone. In 2005, the couple started to
Reconsideration of this Resolution, and on April 11, 2007, this Court granted petitioner’s
have marital problems as Agnes wanted to stay in Makati City, while Franklin insisted that
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 mother’s 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 mother’s
custody.
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 hereby AWARDED to the mother, petitioner Agnes
Gamboa-Hirsch.
SO ORDERED.
Quisumbing (Chairperson), Carpio, Carpio-Morales and Tinga, JJ., concur.
Petition given due course, judgment and resolution set aside.
Notes.—The writ of habeas corpus is the proper legal remedy to enable parents to
regain the custody of a minor child even if the latter be in the custody of a third person of
his own free will. (Tijing vs. Court of Appeals, 354 SCRA 17 [2001])
The general rule that children under seven years of age shall not be separated from
their mother finds its raison d’être in the basic need of minor children for their mother’s
loving care. (Pablo-Gualberto vs. Gualberto V, 461 SCRA 450 [2005])

——o0o——

G.R. No. 154994. June 28, 2005.*
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO
V, respondent.
G.R. No. 156254. June 28, 2005.*
CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS; Hon.
HELEN B. RICAFORT, Presiding Judge, Regional Trial Court, Parañaque City, Branch
260; and JOYCELYN D. PABLO-GUALBERTO, respondents.
Actions; Pleadings and Practice; Post Office; Registry Receipts; The date of filing may
be shown either by the post office stamp on the envelope or by the registry receipt.—The
records disclose that Joycelyn received the CA’s 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, 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 at the Biñan,
Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face of the
envelope and attested to in the Affidavit of Service 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.” 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.
Same; Same; Same; Same; The Registry Bill does not reflect the actual mailing date—
it is the postal Registration Book 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.—
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 Biñan Post
Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange for
distribution to their final destinations. The Registry Bill does not reflect the actual mailing
date. Instead, it is the postal Registration Book 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.
Same; Certiorari; Words and Phrases; Grave abuse of discretion is committed when an
act is 1) done contrary to the Constitution, the law or jurisprudence, 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.”—To begin with, grave
abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law
or jurisprudence; 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.” 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.
Same; Same; There can be no question that a court of competent jurisdiction is vested
with the authority to resolve even unassigned issues.—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 issues raised
in a particular pleading or when the unassigned issues are inextricably linked or germane
to those that have been pleaded. This truism applies with more force when the relief
granted has been specifically prayed for, as in this case.
Same; Same; Pleadings and Practice; Verifications; Under Rule 38 of the Rules of
Court, verification is required only when relief is sought from a final and executory Order.—
Joycelyn’s Motion need not have been verified because of the provisional nature of the April
3, 2002 Order. Under Rule 38 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.
Same; Judgments; 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.—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. The
provision reads: “SECTION 1. Rendition of judgments and final orders.—A judgment or
final order determining the merits of the case shall 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.”
Parents and Children; Custody; The award of temporary custody is provisional and
subject to change as circumstances may warrant—even the award of child custody after a
judgment on a marriage annulment is not permanent as it may be reexamined and adjusted
if and when the parent who was given custody becomes unfit.—The award of temporary
custody, as the term implies, is provisional and subject to change as circumstances may
warrant. In this connection, there is no need for a lengthy discussion of the alleged finality
of the April 3, 2002 RTC Order granting Crisanto temporary custody of his son. For that
matter, even the award of child custody after a judgment on a marriage annulment is not
permanent; it may be reexamined and adjusted if and when the parent who was given
custody becomes unfit.
Same; Same; The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’être in the basic need of minor children for
their mother’s loving care.—The general rule that children under seven years of age shall
not be separated from their mother finds its raison d’être in the basic need of minor children
for their mother’s loving care. In explaining the rationale for Article 363 of the Civil Code,
the Code Commission stressed thus: “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
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 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.”
Same; Same; Statutory Construction; The word “shall” in Article 213 of the Family
Code and Section 6 of Rule 99 of the Rules of Court has been held to connote a mandatory
character.—The word “shall” in Article 213 of the Family Code and Section 6 of Rule 99 of
the Rules of Court has been held to connote a mandatory character. 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. In the present case, the parents are living separately as a matter of fact.
Same; Same; Convention on the Rights of the Child; The principle of “best interest of
the child” pervades Philippine cases involving adoption, guardianship, support, personal
status, minors in conflict with the law, and child custody.—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.” The principle of “best
interest of the child” pervades Philippine cases involving adoption, guardianship, support,
personal status, minors in conflict with the law, and child custody. In these cases, it has
long been recognized that in choosing the parent to whom custody is given, the welfare of
the minors should always be the paramount consideration. Courts are mandated to take
into account all relevant circumstances that would have a bearing on the children’s 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. 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 children’s emotional and educational needs.
Same; Same; The so-called “tender-age presumption” under Rule 213 of the Family
Code may be overcome only by compelling evidence of the mother’s unfitness.—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. The so-
called “tender-age presumption” under Article 213 of the Family Code may be overcome only
by compelling evidence of the mother’s 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.
Same; Same; Homosexuality; Sexual preference or moral laxity alone does not prove
parental neglect or incompetence—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.—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 mother’s immoral
conduct may constitute a compelling reason to deprive her of custody. 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. 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.
Same; Same; Same; It is not enough for a father to show merely that a mother is 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 child’s proper moral development.—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 child’s proper moral development.
Such a fact has not been shown here. There is no evidence that the son was exposed to the
mother’s alleged sexual proclivities or that his proper moral and psychological development
suffered as a result.
Same; Same; Habeas Corpus; A writ of habeas corpus may be issued only when the
“rightful custody of any person is withheld from the person entitled thereto.”—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 withheld from the person entitled thereto,” a situation that does not apply here.
Same; Same; Preliminary Mandatory Injunctions; 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.—The ancillary remedy of preliminary mandatory injunction
cannot be granted, because Crisanto’s right to custody has not been proven to be “clear and
unmistakable.” 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. Besides, such
an injunction would serve no purpose, now that the case has been decided on its merits.
PETITION for review on certiorari of a decision of the Court of Appeals and SPECIAL
CIVIL ACTION for certiorari in the Supreme Court.
The facts are stated in the opinion of the Court.
Miguel D. Larida and German A. Gineta for J.P. Gualberto.
Reynaldo B. Aralar & Associates for C.R. Gualberto V.
PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in separation, the
bitterest tussle is often over the custody of their children. The Court is now tasked to settle
the opposing claims of the parents for custody pendente lite of their child who is less than
seven years of age. There being no sufficient proof of any compelling reason to separate the
minor from his mother, custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review 1 filed by Joycelyn
Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002
Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 70878. The assailed Decision
disposed as follows:
“WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The
assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the
child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].
“The [respondent] court/Judge is hereby directed to consider, hear and resolve
[petitioner’s] motion to lift the award of custody pendente lite of the child to [respondent].”3
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 grave abuse of discretion for
denying his Motion for Partial Reconsideration of the August 30, 2002 Decision. The denial
was contained in the CA’s November 27, 2002 Resolution, which we quote:
“We could not find any cogent reason why the [last part of the dispositive portion of our ‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and
Decision of August 30, 2002] should be deleted, hence, subject motion is hereby DENIED.”5 [Joycelyn’s] Motion to Dismiss and the respective Oppositions thereto.
‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to
The Facts
in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo
The CA narrated the antecedents as follows:
Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter of
“x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional
fact, the body of the Complaint states her name correct[ly]. The law is intended to facilitate
Trial Court of Parañaque City] a petition for declaration of nullity of his marriage to x x x
and promote the administration of justice, not to hinder or delay it. Litigation should be
Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente lite of their
practicable and convenient. The error in the name of Joycelyn does not involve public policy
almost 4-year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took
and has not prejudiced [her].
away with her from the conjugal home and his school (Infant Toddler’s Discovery Center in
‘This case was filed on March 12, 2002. Several attempts were made to serve summons
Parañaque City) when [she] decided to abandon [Crisanto] sometime in early February
on [Joycelyn] as shown by the Sheriff’s returns. It appears that on the 4th attempt on March
2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of
21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyn’s mother and stepfather,
[Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear
respectively,] read the contents of the documents presented after which they returned the
despite notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified
same.
before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April 3,
‘The Court believes that on that day, summons was duly served and this Court acquired
2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order
jurisdiction over [Joycelyn].
partly read x x x:
‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought,
‘x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor
perforce the Motion to [D]ismiss should be denied.
child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was
‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old.
enrolled at B.F. Homes, Parañaque City. Despite effort[s] exerted by him, he has failed to
Under Article 213 of the Family Code, he shall not be separated from his mother unless the
see his child. [Joycelyn] and the child are at present staying with the former’s step-father at
Court finds compelling reasons to order otherwise. The Court finds the reason stated by
the latter’s [residence] at Caminawit, San Jose, Occidental Mindoro.
[Crisanto] not [to] be compelling reasons. The father should however be entitled to spend
‘Renato Santos, President of United Security Logistic testified that he was
time with the minor. These do not appear compelling reasons to deprive him of the company
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the
of his child.
conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu
‘When [Joycelyn] appeared before this Court, she stated that she has no objection to the
City.
father visiting the child even everyday provided it is in Mindoro.
‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of
‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
the spouses who stated that [the mother] does not care for the child as she very often goes
Gualberto, with [the] right of [Crisanto] to have the child with him every other weekend.
out of the house and on one occasion, she saw [Joycelyn] slapping the child.
‘WHEREFORE:
‘Art. 211 of the Family Code provides as follows:
1. The [M]otion to Dismiss is hereby DENIED;
‘The father and the mother shall jointly exercise parental authority over the persons of
2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with
their children. In the case of disagreement, the father’s decision shall prevail, unless there
the right of the father, x x x [Crisanto], to have him every other week-end.
is a judicial order to the contrary.’
3. Parties are admonished not to use any other agencies of the government like the
‘The authority of the father and mother over their children is exercised jointly. This
CIDG to interfere in this case and to harass the parties.’ ”6
recognition, however, does not place her in exactly the same place as the father; her
In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court
authority is subordinated to that of the father.
(Branch 260) of Parañaque City with grave abuse of discretion for issuing its aforequoted
‘In all controversies regarding the custody of minors, the sole and foremost
May 17, 2002 Order. He alleged that this Order superseded, without any factual or legal
consideration is the physical, educational, social and moral welfare of the child, taking into
basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente
account the respective resources and social and moral situations of the contending parties.
lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.
‘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. Ruling of the Court of Appeals
‘WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.’ by the trial court in reversing the latter court’s previous Order dated April 3, 2002, by
“x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award of issuing the assailed May 17, 2002 Order. The appellate court explained that the only
custody pendente lite of the child to [Crisanto] was set but the former did not allegedly incident to resolve was Joycelyn’s Motion to Dismiss, not the issuance of the earlier Order.
present any evidence to support her motion. However, on May 17, 2002, [the] Judge According to the CA, the prior Order awarding provisional custody to the father should
allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time prevail, not only because it was issued after a hearing, but also because the trial court did
awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein not resolve the correct incident in the later Order.
reproduced, to wit:
 Nonetheless, the CA stressed that the trial court judge was not precluded from The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3 and 7
considering and resolving Joycelyn’s Motion to lift the award of custody pendente lite to of Rule 13 of the Rules of Court, which we quote:
Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it “SEC. 3. Manner of filing.—The filing of pleadings, appearances, motions, notices, orders,
directed that the child be turned over to him until the issue was resolved. judgments and all other papers shall be made by presenting the original copies thereof,
Hence, these Petitions.8 plainly indicated as such personally to the clerk of court or by sending them by registered
mail. x x x In the second case, the date of mailing of motions, pleadings and other papers or
Issues
payments or deposits, as shown by the post office stamp on the envelope or the registry
In G.R. No. 154994, Petitioner Joycelyn submits these issues for our consideration:
receipt, shall be considered as the date of their filing, payment, or deposit in court. The
“1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the
envelope shall be attached to the records of the case.
child to the father, violated Art. 213 of the Family Code, which mandates that ‘no child
“x x x xxx xxx
under seven years of age shall be separated from the mother, unless the court finds
“SEC. 7. Service by mail.—Service by registered mail shall be made by depositing the
compelling reasons to order otherwise.’
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his
“2. Is it Article 213 or Article 211 which applies in this case involving four-year old
office, if known, otherwise at his residence, if known, with postage fully pre-paid, and with
Rafaello?”9
instructions to the postmaster to return the mail to the sender after ten (10) days if
On the other hand, Crisanto raises the following issues:
undelivered. If no registry service is available in the locality of either the sender of the
“A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of
addressee, service may be done by ordinary mail. (Italics supplied)
jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge ‘to
The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on September
consider, hear and resolve the motion to lift award of custody pendente lite of the child to
9, 2002. On September 17, she filed before this Court a Motion for a 30-day extension of
petitioner and x x x denied the motion for reconsideration thereof in its November 27, 2002
time to file a petition for review on certiorari. This Motion was granted, 11 and the deadline
Resolution, considering that: (1) there is no such motion ever, then or now pending, with the
was thus extended until October 24, 2002.
court a quo; (2) the November 27, 2002 Resolution is unconstitutional; and (3) the April 3,
A further perusal of the records reveals that copies of the Petition were sent to this
2002 Order of respondent Judge, the validity of which has been upheld in the August 30,
Court and to the parties by registered mail12 at the Biñan, Laguna Post Office on October
2002 Decision of the respondent Court, has become final and executory; and
24, 2002. This is the date clearly stamped on the face of the envelope13 and attested to in the
“B. Ought not the ancillary remedies [o]f habeas corpus,because the whereabouts,
Affidavit of Service14 accompanying the Petition. Petitioner Joycelyn explained that the
physical and mental condition of the illegally detained Minor Rafaello is now unknown to
filing and the service had been made by registered mail due to the “volume of delivery
petitioner and preliminary mandatory injunction with urgent prayer for immediate issuance
assignments and the lack of a regular messenger.”15
of preliminary [injunction], petitioner having a clear and settled right to custody of Minor
The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date
Rafaello which has been violated and still is being continuously violated by [petitioner
as shown by the post office stamp on the envelope. The last sentence of Section 3 of Rule 13
Joycelyn], be granted by this Honorable Court?”10
of the Rules provides that the date of filing may be shown either by the post office stamp on
Being interrelated, the procedural challenges and the substantive issues in the two
the envelope or by the registry receipt. Proof of its filing, on the other hand, is shown by the
Petitions will be addressed jointly.
existence of the petition in the record, pursuant to Section 12 of Rule 13. 16
The Court’s Ruling The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date
There is merit in the Petition in G.R. No. 154994, but not in G.R. No. 156254. November 2, 2002, merely discloses when the mail matters received by the Biñan Post
Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange for
Preliminary Issue:
distribution to their final destinations.17 The Registry Bill does not reflect the actual
The Alleged Prematurity 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
of the Petition in G.R. No. 154994
senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and 2832-
Before going into the merits of the present controversy, the Court shall first dispose of a
B, pertaining to the mailed matters for the Supreme Court, were issued on October 24,
threshold issue. In G.R. No. 154994, therein Respondent Crisanto contends that the Petition
2002.
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 of the Petition
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 As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his
Court has no jurisdiction over Joycelyn’s Petition. 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
Timeliness of the Petition 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 CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse
may be excused in the interest of resolving the substantive issues raised by the parties.
First Issue: Grave Abuse of Discretion
In G.R. 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 issues raised in a particular pleading or when the
unassigned issues are inextricably linked or germane to those that have been
pleaded.23 This 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 befor e 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, Joycelyn’s Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 3825 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 case shall 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:
“Art. 49. During the pendency of the action28 and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. x x x.”
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its
questioned Resolution, the CA clearly stated that it “could not find any cogent reason” to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory
Third, the award of temporary custody, as the term implies, is provisional and subject to
change as circumstances may warrant. In this connection, there is no need for a lengthy
discussion of the alleged finality of the April 3, 2002 RTC Order granting Crisanto
temporary custody of his son. For that matter, even the award of child custody after a
judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if
and when the parent who was given custody becomes unfit.29
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in separation, the
bitterest tussle is often over the custody of their children. The Court is now tasked to settle
the opposing claims of the parents for custody pendente lite of their child who is less than
seven years old.30 On 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, the father
argues that she is “unfit” to take care of their son; hence, for “compelling reasons,” he must
be awarded custody of the child. Article 213 of the Family Code31 provides:
“ART. 213. In case of separation of the parents, parental authority shall be exercised by the
parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the parent
chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.”
This Court has held that when the parents are separated, legally or otherwise, the foregoing
provision governs the custody of their child.32 Article 213 takes its bearing from Article 363
of the Civil Code, which reads:
“Art. 363. In all questions on the care, custody, education and property of children, the
latter’s welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.” (Italics
supplied)
The general rule that children under seven years of age shall not be separated from their
mother finds its raison d’être in the basic need of minor children for their mother’s loving
care.33 In explaining the rationale for Article 363 of the Civil Code, the Code Commission
stressed thus:
“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 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 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)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603).34 Article 17 of the same Code is even more explicit in
providing for the child’s custody under various circumstances, specifically in case the
parents are separated. It clearly 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 is reproduced in its entirety as follows:
“Art. 17. Joint Parental Authority.—The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the father’s decision shall prevail unless there is a judicial
order to the contrary.
“In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the surviving
parent’s 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 conflict with the law, and child
custody. In these cases, it has long been 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 children’s 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 children’s 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 compelling evidence of the mother’s 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
mother’s 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 REINSTATED. The Petition in G.R. No. 156254 is DISMISSED. Costs against Petitioner
effect on the welfare of the child or have distracted the offending spouse from exercising Crisanto Rafaelito Gualberto V.
proper parental care.52 SO ORDERED.
To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was Sandoval-Gutierrez, Corona, Carpio-Morales and Garcia, JJ., concur.
openly living with her brother-in-law, the child’s uncle. Under that circumstance, the Court Petition in G.R. No. 154994 granted, assailed decision reversed and order of the trial
deemed it in the nine-year-old child’s best interest to free her “from the obviously court dated May 17, 2002 reinstated. Petition in G.R. No. 156254 dismissed.
unwholesome, not to say immoral influence, that the situation in which the mother ha[d] Notes.—Impugning the legitimacy of the child is a strictly personal right of the
placed herself might create in [the child’s] moral and social outlook.”54 husband, or in exceptional cases, his heirs for the simple reason that he is the one directly
In Espiritu v. CA,55 the Court took into account psychological and case study reports on confronted with scandal and ridicule which the infidelity of his wife produces and he should
the child, whose feelings of insecurity and anxiety had been traced to strong conflicts with be the one to decide whether to conceal that infidelity or expose it in view of the moral and
the mother. To the psychologist the child revealed, among other things, that the latter was economic interest involved. (Liyao, Jr. vs. Tanhoti-Liyao, 378 SCRA 563 [2002])
disturbed upon seeing “her mother hugging and kissing a ‘bad’ man who lived in their house In the continual evolution of legal institutions, the patria potestas has been transformed
and worked for her father.” The Court held that the “illicit or immoral activities of the from the jus vitae ac necis (right of life and death) of the Roman law, under which the
mother had already caused the child emotional disturbances, personality conflicts, and offspring was virtually a chattel of his parents, into a radi-
exposure to conflicting moral values x x x.” cally different institution, due to the influence of Christian faith and doctrines. (Laxamana
Based on the above jurisprudence, it is therefore not enough for Crisanto to show vs. Laxamana, 388 SCRA 296 [2002])
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 ——o0o——
circumstances not conducive to the child’s proper moral development. Such a fact has not
been shown here. There is no evidence that the son was exposed to the mother’s alleged
sexual proclivities or that his proper moral and psychological development suffered as a
result.
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 child’s 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
mother’s 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 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 Crisanto’s 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 G.R. No. 154994 is GRANTED. The assailed Decision of the
Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order
 she in effect abandoned her action in the JDRC. The petitioner spouse—who could have
No. L-23482. August 30, 1968.
raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so—
ALFONSO LACSON, petitioner, vs. CARMEN SAN JOSELACSON and THE COURT OF
had the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the
APPEALS, respondents.
action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis
No. L-23767. August 30, 1968. pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody
CARMEN SAN JOSE-LACSON, plaintiff-appellant, vs. ALFONSO LACSON, defendant- and support of the children based on those grounds. For it is no defense against the
appellee. dismissal of the action that the case before the CFI was filed later than the action before the
JDRC, considering "x x x That the Rules do not require as a ground for dismissal of a
No. L-24259. August 30, 1968.
complaint that there is a prior pending action. They provide only that there is a pending
ALFONSO LACSON, petitioner-appellee, vs. CARMEN SAN JOSE-LACSON, petitioner-
action, not a pending prior action (Teodoro v. Mirasol, 99 Phil. 150, 153)."
appellant.
Civil law; Custody and support of minor children; Separation of mother from her child
Civil law; Compromise agreement; Separation of property of spouses and dissolution of
under seven years of age prohibited; Exception; Reason.—The Civil Code specifically
conjugal partnership; When permissible.—The law allows separation of property of the
commands in the second sentence of its article 363 that "No mother shall be separated from
spouses and the dissolution of their conjugal partnership through compromise agreement of
her child under seven years of age, unless the court finds compelling reasons for such
such spouses, provided judicial sanction is secured before hand. Thus the. new Civil Code
measure." The rationale of this new provision was explained by the Code Commission, thus:
provides: "In the absence of an express declaration in the marriage settlements, the
"The general rule is recommended in order to avoid many a tragedy where a mother has
separation of property between spouses during the marriage shall not take place save in
seen her baby torn away f rom her. No man can sound the deep sorrows of a mother who is
virtue of a judicial order" (Art. 190). Article 191, paragraph 4, of the same Code likewise
deprived of her child of tender age. The exception allowed by the rule has to be for
provides that: "The husband and the wife may agree upon the dissolution of the conjugal
'compelling reasons' for the good of the child: those cases must indeed be rare, if the
partnership during the marriage, subject to judicial approval. x x x."
mother's heart is not to be unduly hurt. If she has erred. as in cases of adultery. the Denaltv
Same; Courts cannot compel one of the spouses to cohabit with the other.—It is not
of imDrisonment and the (relative) divorce decree will ordinarily be sufficient punishment
within the province of the courts of this country to attempt to compel one of the spouses to
for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet
cohabit with, and render conjugal rights to the other. x x x At best such an order can be
unable to understand the situation." (Report of the Code Commission, p. 12) The use of the
effective for no other purpose than to compel the spouses to live under the same roof; and
word shall ("In common or ordinary parlance and in its ordinary significance, the term
the experience of those countries where the courts of justice have assumed to compel the
'shall' is a word of command, and one which has always or which must be given a
cohabitation of married couple shows that the policy of the practice is extremely
compulsory meaning, and it is generally imperative or mandatory) in article 363 of the Civil
questionable (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).
Code, coupled with the observations made by the Code Commission in respect to the said
Same; Approval of regime of separation of property and the dissolution of conjugal
legal provision, underscores its mandatory character. It prohibits in no uncertain terms the
partnership does not legalize a de facto separation of the spouses; Concept of de facto
separation of a mother and her child below seven years, unless such separation is grounded
separation of spouses.—In so approving the regime of separation of property of the spouses
upon compelling reasons as determined by a court.
and the dissolution of their conjugal partnership, this Court does not thereby accord
Same; Rights of a child; Article 356 of Civil Code construed.—Article 356 of the new
recognition to nor legalize the de facto separation of the spouses, which—again in the
Civil Code provides: "Every child: (1) Is entitled to parental care; (2) Shall receive at least
language of Arroyo v. Vasquez de Arroyo, supra—is a "state which is abnormal and f raught
elementary education; (3) Shall be given moral and civic training by the parents or
with grave danger to all concerned." We would like to douse the momentary seething
guardian; (4) Has a right to live in an atmosphere conducive to his physical, moral and
emotions of couples who, at the slightest ruffling of domestic tranquility—brought about by
intellectual development." It is clear that the abovequoted legal provision grants to every
"mere austerity of temper, petulance of manners, rudeness of language, a want of civil
child rights which are not and should not be dependent solely on the wishes, much less the
attention and accommodation, even occasional sallies of passion" without more - would be
whims and caprices, of his parents. His welfare should not be subject to the parents' say-so
minded to separate from each other. In this jurisdiction, the husband and the wife are
or mutual agreement alone.
obliged to live together, observe mutual respect and fidelity, and render mutual help and
Same; Award of care and custody of child; When a child is permitted to choose which
support (art. 109, new Civil Code). There is, therefore, virtue in making it as difficult as
parent it prefers to live wiih.—When husband and wife are divorced or living separately and
possible for married couples—impelled by no better cause than their whims and caprices—
apart from each other, and the question as to the care, custody, and control of a child or
to abandon each other's company.
children of their marriage is brought before a Court of First Instance by petition or as an
Remedial law; Res judicata; Lis pendens; Case at bar.—It is not disputed that it was
incident to any other proceeding, the court, upon hearing testimony as may be pertinent,
the Juvenile and Domestic Relations Court which first acquired jurisdiction over the matter
shall award the care, custody, and control of such child as will be for its best
of custody and support of the children. The complaint docketed as civil case E-00030 in the
interest, permitting the child to choose which parent it prefers to live with if it be over ten
JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of
years of age, unless the parent so chosen be unfit to take charge of the child by reason of
the parties docketed as special proceedings 6978 in the CFI was filed on April 27, 1963.
moral depravity, habitual drunkenness, incapacity, or poverty (Sec. 6, Rule 99, Revised
However, when the respondent spouse signed the joint petition on the same matter of
Rules of Court).
custody and support of the children and filed the same with the CFI of Negros Occidental,
APPEAL by certiorari from a decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Paredes, Poblador, Cruz & Nazareno for respondent-appellant Carm-en San Jose-
Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J.:
These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a
common fundamental issue the resolution of which will necessarily and inescapably resolve
all the other issues. Thus their joinder in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-
Lacson (hereinafter referred to as the respondent spouse) were married on February 14,
1953. To them were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara
Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963
a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of
Manila (hereinafter referred to as the JDRC) for custody of all their children as well as
support for them and herself.
However, the spouses, thru the assistance of their respective attorneys, succeeded in
reaching an amicable settlement respecting custody of the 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).
The important and pertinent portions of the petition, embodying their amicable
settlement, read as follows:
"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.
"4.Petitioners have mutually agreed upon the dissolution of their conjugal
partnership subject to judicial approval as required by Article 191 of the Civil Code of
the Philippines—the particular terms and conditions of their mutual agreement being
as follows:
"(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
Alfonso Lacson since they have acquired no property of any consequence
"(b)Hereafter, each of them shall own, dispose of, possess, administer and enjoy -such
separate estate as they may acquire without the consent of the other and all earnings
from any profession, business or industry as may be derived by each petitioner shall
belong to that petitioner exclusively.
"(c)The custody of the two elder children named Enrique and Maria Teresa shall be
awarded to petitioner Alfonso Lacson and the custody of the younger children named
Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson.
"(d)Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly
allowance of P300.00 for the support of the children in her custody.
"(e)Each petitioner shall have reciprocal rights of visitation of the children in the
custody of the other at their respective residences and, during the summer months,
the two children in the custody of each petitioner shall be given to the other except
that, for this year's summer months, all four children shall be delivered to and
remain with petitioner Carmen San JoseLacson until June 15, 1963—011 which date,
she shall return the two elder children Enrique and Maria Teresa to petitioner
Alfonso Laeson—this judgment of course being subject to enforcement by execution
writ and contempt.
"5.Petitioners have no creditors.
"WHEREFORE, they respectfully pray that notice of this petition be given to creditors and
third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that
the Court enter its judicial approval of' the foregoing agreement for the dissolution of their
conjugal partnership and for separation of property, except that the Court shall
immediately approve the terms set out in paragraph 4 above and embody the same in a
judgment immediately binding on the parties hereto to the end that any non-compliance or
violation of its terms by one party shall entitle the other to enforcement by execution writ
and contempt even though the proceedings as to creditors have not been terminated."
Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F.
Fernandez, presiding) issued 'an order on April 27, 1963, rendering judgment (hereinafter
referred to as the compromise judgment) approving and incorporating in toto their
compromise agreement. In compliance with paragraph 4(e) of their mutual agreement (par.
3[e] of Ihe compromise judgment), the petitioner spouse delivered all the four children to the
respondent spouse and remitted money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged
that she "entered into and signed the x x x Joint Petition as the only means by which she
could have immediate custody of the x x x minor children who are all below the age of 7,"
and thereafter prayed that she "he considered relieved of the x x x agreement pertaining to
the custody and visitation of her minor children x x x and that since all the children are now
in 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 dismiss the complaint based,
among other things, on the grounds of res judicata and lis pendens. The JDRC, on May 28,
1963. issued an order which sustained the petitioner spouse's plea of bar by prior judgment
and lis pendens, and dismissed the case. After the denial of her motion for reconsideration,
the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R)
wherein she raised, among others, the issue of validity or legality of the compromise
agreement in connection only with the custody of their minor children. On October 14, 1964
the Court of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767),
since "no hearing on the facts was ever held in the court below—no evidence, testimonial or
documentary, presented—only a question of law pends resolution in the appeal."
The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of
the compromise judgment dated April 27, 1963 rendered in special proceeding 6978 of the
CFI, wherein she also alleged, among others, that she entered into the joint petition as the
only means by which she could have immediate custody of her minor children, and
thereafter prayed the CFI to reconsider its judg ment pertaining to the custody and
visitation of her minor children and to relieve her from the said agreement. The petitioner
spouse opposed the said motion and, on June 1, 1963, filed a motion for execution of the
compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin,
presiding), in its order dated June 22, 1963, denied the respondent spouse's motion for
reconsideration, 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 children [i.e., to return
the two older children Enrique and Maria Teresa in accordance with her agreement with
Alfonso Lacson] to the special sheriff on or before June 29, 1963, she may be held for
contempt pursuant to the provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of
the (old) Rutes of Court." From the aforesaid compromise judgment dated April 27, 1963
and execution order dated June 22, 1963, the respondent spouse 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 11, 1965 the Court of Appeals also certified the said appeal to the Supreme Court
(G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and
x x x appellant did not specifically ask to be allowed to present evidence on her behalf."
The respondent spouse also instituted certiorari proceedings before the Court of
Appeals (CA-G.R. No. 32384R), now the subject of an appeal by certiorari to this Court (G.R.
No. L-23482). In her petition for certiorari dated June 27, 1963, she averred that the CFI
(thru Judge Querubin) committed grave abuse of discretion and acted in excess of
jurisdiction in ordering the immediate execution of the compromise judgment in its order of
June 22, 1963, thus in effect depriving her of the right to appeal. She prayed for (1) the
issuance of a writ of preliminary injunction enjoining the respondents therein and any
person acting under them from enforcing, by contempt proceedings and other means, the
writ of execution issued pursuant to the order of the respondent Judge Querubin dated June
22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after 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 Maria Teresa to her, their mother. As prayed for,
the Court of Appeals issued ex parte a writ of preliminary injunction enjoining the
enforcement of the order dated June 22, 1963 for execution of the compromise judgment
rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated
July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte, which urgent
motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The
petitioner spouse 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 decision granting the
petition for certiorari and declaring null and void both (a) the compromise judgment dated
April 27, 1963 in so far as it relates to the custody and right of visitation over the two
children, Enrique and Teresa, and (b) the order dated June 22, 1963 for execution of said
judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration
was denied by the Court of Appeals in its resolution dated July 31, 1964. From the decision
dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed
an appeal to this Court, as abovestated, and assigned the following errors:
(1)The Court of Appeals erred in annulling thru certiorari the lower court's order of
execution of the compromise judgment.
(2)The Court of Appeals erred in resolving in the certiorari case the issue of the
legality of the compromise judgment which is involved in two appeals, instead of the
issue of grave abuse of discretion in ordering its execution.
(3)The Court of Appeals erred in ruling that the compromise agreement upon which
the judgment is based violates article 363 of the Civil Code.
As heretofore adverted, the aforecited three appeals converge on one focal issue: whether
the compromise agreement entered into by the parties and the judgment of the CFI
grounded on the said agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the CFI grounded on the
said agreement are valid with respect to the separation of property of the spouses and the
dissolution of the conjugal partnership.
The law allows separation of property of the spouses and the dissolution of their
conjugal partnership provided judicial sanction is secured beforehand. Thus the new Civil
Code provides:
"In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place save in virtue of a judicial
order" (Art. 190, italics supplied)
"The husband and the wife may agree upon the dissolution of the conjugal partnership
during the marriage, subject to judicial approval. All the creditors of the husband and of the
wife, as well as of the conjugal partnership, shall be notified of any petition for judicial
approval of the voluntary dissolution of the conjugal partnership, so that any such creditors
may appear at the hearing to safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall take such measures as may protect
the creditors and other third persons." (Art, 191, par. 4, italics supplied)
In the case at bar, the spouses obtained judicial imprimatur of their separation of property
and the dissolution of their conjugal partnership. It does not appear that they have creditors
who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been separated in fact f or at least five
years—the wife's residence being in Manila, and the husband's in the conjugal home in
Bacolod City. Therefore, inasmuch as a lengthy separation has supervened between them,
the propriety of severing their financial and proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live together, as
"[I]t is not within the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. x x x At best such an order
can be effective for no other purpose than to compel the spouses. to live under the same roof;
and the experience of those countries where the courts of justice have assumed to compel
the cohabitation of married couple shows that the policy of the practice is extremely
questionable." (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60)
However, in so approving the regime of separation of property of the spouses and the
dissolution of their conjugal partnership, this Court does not thereby accord recognition to
nor legalize the de facto separation of the spouses, which—again in the language of Arroyo
v. Vasquez de Arroyo, supra—is a "state which is abnormal and fraught with grave danger
to all concerned." We would like to douse the momentary seething emotions of couples who,
at the slightest ruffling of domestic tranquility—brought about by "mere austerity of
temper, petulance of manners, rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion" without more—would be minded to
separate from each other. In this jurisdiction, the husband and the wife are obliged to live
together, observe mutual respect and fidelity, and render mutual help and support (art. 109,
new Civil Code). There is, therefore, virtue in making it as difficult as possible for married
couples—impelled by no better cause than their whims and caprices—to abandon each
other's company.
" 'x x x 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 husbands and wives; for necessity is a powerful master in teaching
the duties which it imposes x x x' (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466,
467.)" (Arroyo vs. Vasquez de Arroyo, ld., pp. 58-59).
We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which first acquired jurisdiction over the matter
of custody and support of the children. The complaint docketed as civil case E-G0030 in the
JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of
the parties docketed as special proceeding 6978 in the CFl was filed on April 27, 1963.
However, when the respondent spouse signed the joint petition on the same matter of
custody and support of the children and filed the same with the CFI of Negros Occidental,
she in effect abandoned her action in the JDRC. The 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, therefore, to cite the decision of the CFI and to ask for the dismissal of the
action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis
pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody
and support of the cKildren based on those grounds. For it is no defense against the
dismissal of the action that the case before the CFI was filed later than the action before the
JDRC, considering:
"x x x [T]hat the Rules do not require as a ground for dismissal of a complaint that there is
a prior pending action. They provide only that there is a pending action, not a pending prior
action."1
We agree with the Court of Appeals, however, that the CFI erred in depriving the mother,
the respondent spouse, of the custody of the two older children (both then below the age of
7).
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 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 shalt2 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.
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 order depriving the wife of her
minor children's company. True, the CFI stated in its order dated June 22, 1963, denying
the respondent spouse's motion for reconsideration of its order dated April 27, 1963, that
"x x x 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 as succulent morsel for scandal mongers and
idle gossipers and to save their children from embarrassment and inferiority complex which
may inevitably stain their lives. x x x If the parties agreed to submit the matter of custody
of the minor children to the Court for incorporation in the final judgment, they purposely
suppressed the 'compelling reasons for such measure' from appearing in the public records,
This is for the sake and for the welfare of the minor children."
But the foregoing statement is at best a mere hint that there were compelling reasons. The
lower court's order is eloquently silent on what 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.
Article 356 of the new Civil Code provides:
"Every child:
1. (1)Is entitled to parental care;
2. (2)Shall receive at least elementary education;
3. (3)Shall be given moral and civic training by the parents or guardian;
4. (4)Has a right to live in an atmosphere conducive to his physical, moral and
intellectual development."
It is clear that the abovequoted legal provision grants to every child rights which are not
and should not be dependent solely on the wishes, much less the whims and caprices, of his
parents. His welfare should not be subject to 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 Code requires that separation of property shall not prevail unless expressly stipulated in
determine in whose custody the child can better be assured the rights granted to him by the marriage settlements before the union is solemnized or by formal judicial decree during
law. The need, therefore, to present evidence regarding this matter, becomes imperative. A the existence of the marriage (Art. 190); and in the latter case, it may only be ordered by the
careful scrutiny of the records reveals that no such evidence was introduced in the CFI. This court for causes specified In Article 191 of the new Civil Codc" (Garcia vs. Manzano, 103
latter court relied merely on the mutual agreement of the spouses-parents. To be sure, this Phil. 798. Italics supplied).
was not a sufficient basis to determine the fitness of each parent to be the custodian of the
children.
Besides, at 1-east 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:
"x x x 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. x x x" (Italics 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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles,
JJ., concur.
Sanchez and Fernando, JJ., did not take part.
Decision affirmed with instruction.
Notes.—On the question as to who, between parents or between other persons, is
entitled to the care and custody 01 a child, the paramount consideration is the welfare of the
child (Quembin vs. Querubin, 87 Phil. 125; Flores vs. Vda. de Esteban, 97 Phil 439). In view
of this rule, the order of preference established in Article 355 of the Civil Code as to who
shall exercise substitute parental authority, even if otherwise mandatory, would be
disregarded if the child's welfare would be subserved thereby (Murdoch vs. Chuidian, 52
O.G. 5833).
With respect to separation of property, it has been stated by the Supreme Court that,
"consistently with its policy of discouraging a regime of separation as not in harmony with
the unity of the family and the mutual affection and help expected of the spouses, the Civil