EN BANC

[G.R. No. L-19671. July 26, 1966.]

PASTOR

B.

TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO,

ET AL., defendants-

appellees.
Isabelo B. Binamira, Filemon B. Barria and Crispin D. Baizas & Associates for appellants.
Vicente L. Faelnar, for appellee Mamerto Escao and Mena F. Escao.
Jalandoni & Jamir for appellee Vicenta F. Escao.
Norberto J. Quisumbing for intervenor Russel Leo Moran.
RESOLUTION
REYES, J.B.L., J p:
Not satisfied with the decision of this Court, promulgated on 29 November 1965, in the above-entitled case, plaintiffappellant Pastor B. Tenchavez and defendant-appellee Vicenta F. Escao, respectively, move for its reconsideration; in
addition, Russell Leo Moran, whom said defendant married in the United State, has filled, upon leave previously granted,
a memorandum in intervention.
Movant Tenchavez poses the novel theory that Mamerto and Mina Escao are undeserving of an award for damages
because they are guilty of contributory negligence in failing to take up proper and timely measures to dissuade their
daughter Vicenta from leaving her husband (Tenchavez), obtaining a foreign divorce and marrying another man (Moran).
This theory cannot be considered: first, because this was not raised in the court below; second, there is no evidence to
support it; third, it contradicts plaintiff's previous theory of alienation of affections in that contributory negligence involves
an omission to perform an act while alienation to affection involves the performance of a positive act.
The prayer of appellant Tenchavez in his motion for reconsideration to increase the damages against Vicenta (P25,000 for
damages and attorney's fees were awarded to Tenchavez in the decision) should, likewise, be denied, all factors and
circumstances in the case having been duly considered in the main decision.
In seeking a reexamination of the decision, defendant-appellee Vicenta Escao, in turn, urges a comparison between the
two marriages, stating, in plainer terms, that the Tenchavez-Escao marriage was no more than a ceremony, and a faulty
one at that, while the Moran-Escao marriage fits the concept of a marriage as a social institution because publicly

contracted, recognized by both civil and ecclesiastical authorities, and blessed by three children. She concludes that,
since the second marriage is the better one, it deserves the law's recognition and protection over the other. This is a
dangerous proposition: it legalizes a continuing polygamy by permitting a spouse to just drop at pleasure her consort for
another in as many jurisdictions as would grant divorce on the excuse that the new marriage is better than the previous
one; and, instead of fitting the concept of marriage as a social institution, the proposition altogether does away with the
social institution, the proposition altogether does away with the social aspects of marriage in favor of its being a matter of
private contract and personal adventure.
The said appellee claims that state recognition should be accorded the Church's disavowal of her marriage with
Tenchavez. On this point, our main decision limited itself to the statement, "On 10 September 1954, Vicenta sought papal
dispensation of her marriage (Exh. P-2)", without stating that papal dispensation was actually granted, the reason being
that Vicenta's claim that dispensation was granted was not indubitable, and her counsel, during the trial in the lower court,
did not make good his promise to submit the document evidencing the papal dispensation; in fact, no such document
appears on record. The Church's disavowal of the marriage, not being sufficiently established, it cannot be considered.
Vicenta's belated appeal to Canon law, after she had sought and failed to obtain annulment in the civil courts, and after
she had flaunted its principles by obtaining absolute divorce, does not, and can not, sound convincing. Particularly when
account is taken of the circumstances that she obtained the Nevada divorce in 1950 and only sought ecclesiastical
release from her marriage to Tenchavez in 1954.
The award of moral damages against Vicenta Escao is assailed on the ground that her refusal to perform her wifely
duties, her denial of consortium and desertion of her husband are not included in the enumeration of cases where moral
damages may lie. The argument is untenable. The acts of Vicenta (up to and including her divorce, for grounds not
countenanced by our law, which was hers at the time) constitute a willful infliction to injury upon plaintiff's feelings in a
manner "contrary to morals, good customs or public policy" (Civ. Code, Art. 21) for which Article 2219 (10) authorizes an
award of moral damages. Neither the case of Ventanilla vs. Centeno, L-14333, 28 January 1961 (which was a suit filed by
a client against his lawyer for failure to perfect an appeal on time), nor the case of Malonzo vs. Galang, L-13851, 27 July
1960 (wherein the precise ruling was that moral damages may not be recovered for a clearly unfounded civil action or
proceeding), now invoked by the said defendant-appellee, is in point.
It is also argued that, by the award of moral damages, an additional effect of legal separation has been added to Article
106. Appellee obviously mistakes our grant of damages as an effect of legal separation. It was plain in the decision that
the damages attached to her wrongful acts under the codal article (Article 2176) expressly cited.
Appellee-movant commits a similar mistake by citing Arroyo vs. Arroyo, 42 Phil. 54, and Ramirez-Cuaderno vs. Cuaderno,
L-20043, 28 November 1964, to support her argument that moral damages did not attach to her failure to
render consortium because the sanction therefor is spontaneous mutual affection, and not any legal mandate or court
order. The Arroyo case did rule that "it is not within the province of courts of this country to attempt to compel one of the

spouses to cohabit with, and render conjugal rights to, the other", but it referred to physically coercive means, the Court
declaring that
"We are disinclined to sanction the doctrine that an order, enforceable by process of contempt, may be
entered to compel restitution of the purely personal right ofconsortism." (Cas. cit., p. 60) (Emphasis
supplied)
But economics sanctions are not held in our law to be incompatible with the respect accorded to individual liberty in civil
cases. Thus, a consort who unjustifiably deserts the conjugal abode can be denied support (Art. 178, Civil Code of the
Phil.). And where the wealth of the deserting spouse renders this remedy illusory, there is no cogent reason why the court
may not award damages, at it may in cases of breach of other obligations to do intuitu personae even if in private relations
physical coercion be barred under the old maximum "Nemo potest precise cogi ad factum"
For analogous reasons, the arguments advanced against the award of attorney's fees must be rejected as devoid of merit.
Contrary to intervenor Moran's contention, the decision did not impair appellee's constitutional liberty of abode and
freedom of locomotion, as, in fact, Vicenta Escao did exercise these rights, and even abused them by stating in her
application for a passport that she was "single", the better to facilitate her flight from the wrongs she had committed
against her husband. The right of a citizen to transfer to a foreign country and seek divorce in a diverse to forum is one
this, and the recognition to be accorded to the divorce decree thus obtained is quite another; and the two should not be
confused.
Intervenor reiterates that recognition of Vicenta's divorce in Nevada is a more enlightened view. The argument should be
addressed to the legislature. As the case presently stands, the public policy of this forum is clearly adverse to such
recognition, as was extensively discussed in the decision. The principle is well-established, in private international law,
that foreign decrees cannot be enforced or recognized if they contravene public policy (Nussbaum, Principles of Private
International Law, P. 232)
"It is thoroughly established as a broad general rule that foreign law or rights based therein will not be
given effect or enforced if opposed to be settled public policy of the forum." (15 C.J.C. 853)
"SEC. 6. Limitations. In the recognition and enforcement of foreign laws the Courts are slow to
overrule the positive law of the forum, and they will never give effect to a foreign law where to do so
would prejudice the state's own rights or the rights of its citizen or where the enforcement of the foreign
law would contravene the positive policy of the law of the forum whether or not that policy is reflected in
statutory enactments." (11 Am. Jur., 300-301)

"A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is
recognized as valid in every country, unless contrary to the policy of its own law. Cottington's Case, 2
Swan St. 326, note; Roach vs. Garvan, I Ves. St. 157; Harvey vs. Farnie, LR 8 App. Cas. 43; Cheely vs.
Clayton, 110 U.S. 701 [28:298]." (Hilton vs. Guyot 159 U.S. 113, 167; 40 L. Ed. 95, 110) (Emphasis
supplied)
It is therefore, error for the intervenor to ask that "private international law rather than Philippine civil law should
decide the instant case", as if the two branches of the law contradicted one another.
In a consolidated paper (intervenor's rejoinder and appellee Vicenta Escaos supplemental motion for reconsideration),
the issue is raised that "the Supreme Court cannot reverse the decision of the lower court dismissing the complaint nor
sentence Vicenta Escao to pay damages, without resolving the question of lack of jurisdiction over her person"
A resolution by the Supreme Court of the issue of jurisdiction over the person of appellee Vicenta Escao, and which was
disallowed by the court below, was unnecessary because the matter was not properly brought to us for resolution, either
on appeal or by special remedy which could have been availed of by the appellee when the lower court, on 1 June 1957,
overruled her challenge to its jurisdiction. Neither was the alleged error of the lower court put in issue in her brief as
appellee, as it was incumbent upon her to do (Relativo vs. Castro, 76 Phil. 563; Lucero vs. De Guzman, 45 Phil. 852). Not
affecting the jurisdiction over the subject matter, the court properly ignore the point (Rev. Rule 51, section 7)

"SEC. 7. Question that may be decided. No error which does not affect the jurisdiction over the
subject matter will be considered unless stated in the assignment of errors and properly argued in the
brief, save as the court, at its option, may notice plain errors not specified, and also clerical errors."
At any rate,
" . . . When, however, the action against the non-resident defendant affects the personal status of the
plaintiff, as, for instance, an action for separation of for annulment of marriage, . . ., Philippine courts
may validly try and decide the case, because, then, they have jurisdiction over the res, and in that event
their jurisdiction over the person of the non-resident defendant is not essential. The res is the personal
status of the plaintiff domiciled in the Philippines, . . ." (1 Moran 411, 1963 Ed., citing Mabanag vs.
Gallemore, 81 Phil. 254)
The award of damages, in the present case, was merely incidental to the petition for legal separation. For all these
reasons, and because she filed a counterclaim against plaintiff (Rec. App. pp. 205- 206), Vicenta should be deemed to

have withdrawn the objection to the lower court's jurisdiction over her person, even though she had stated in the
counterclaim that she was not waiving her special defense of lack of jurisdiction.
It is urged that the actions for legal separation and for quasi- delict have prescribed: the first, because it was not filed
within one year from and after the date on which the plaintiff became cognizant of the cause; and, the second, because it
was not filed within four years since the Tenchavez-Escao marriage in 1948.
The argument on both points is untenable.
The action for legal separation was filed on 31 May 1956. Although in a letter, under date of 10 December 1954, the
Department of Foreign Affairs informed plaintiff Tenchavez that "According to information, she (appellee) secured a decree
of divorce on October 21, 1950 . . . and married an American citizen, Russel Leo Moran, on September 13, 1954", there is
no satisfactory and convincing evidence as to the time when plaintiff Tenchavez received the said letter; nor was she dutybound to act immediately upon hearsay information. Since prescription is an affirmative defense, the burden lay on the
defendant to clearly prove it, and her proof on it was inadequate.
On the argument about the action on tort having prescribed, the basis thereof is erroneous: the marriage was not the
cause of appellee's wrongful conduct. Her denial of cohabitation, refusal to render consortium and desertion of her
husband started right after their wedding but such wrongs have continued ever since. She never stopped her wrongdoings
to her husband, so that the period of limitation has never been completed.
Finally, we see no point in discussing the question of appellee Escao's criminal intent, since nothing in the main decision
was designed or intended to prejudge or rule on the criminal aspect of the case, if any, or any of its constituent elements.
It is to be noted that in this civil case only a preponderance of evidence is required, and not proof beyond reasonable
doubt. While much could be said as to the circumstances surrounding the divorce of the appellee, we prefer to abstain
from so doing in order not to influence in any way the criminal case, should any be instituted.
For the reasons above cited, all motions for reconsideration are hereby denied.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.
RESOLUTION ON THE SECOND MOTION TO RECONSIDER OF APPELLEE and INTERVENOR.
September 14, 1966
REYES, J.B.L., J p:
Their first motion for reconsideration having been denied, Vicenta Escao and Russel Leo Moran, through counsel, have
filed a second motion for reconsideration.

It is first averred that this Court's decision contradicts the doctrine laid down in Banco Espaol Filipino vs. Palanca, 37
Phil. 921, that in proceedings in rem or quasi in rem the relief must be confined to the res, and the Court cannot lawfully
render a personal judgment.
Movants' own quotation from that decision demonstrates the difference in the facts between the case at bar and the
authority cited. For their own excerpt shows that the rule now invoked was laid down for instances where the defendant
never submitted to the jurisdiction of our courts. We said then:
"If, however, the defendant is a non-resident, and remaining beyond the range of the personal process
of the court refuses to come in voluntarily, the court never acquires jurisdiction over the person at
all. . . . " (Cas. Cit. p. 930)
The defendant Palanca, in 37 Phil. 921, so much refused to come in voluntarily that he was declared in default. Was this
the case of vicenta Escao? The records show on their face that it was not. While she objected to the jurisdiction of the
Court over her person, she also filed a answer with a counterclaim asking for an award of damages against plaintiffappellant Tenchavez. Instead of "refusing to come in voluntarily", as Palanca did (in 37 Phil. 921), Escao took the
offensive and asked the Court for a remedy, a judgment against her opponent; and this after the court below overruled her
objection that she was not within its jurisdiction. In asking the Court for affirmative relief, Escao submitted to its
jurisdiction. In the United States, whence our adjective law finds its sources, the Federal Supreme Court has ruled
(Merchant's Heat & Light Co. vs. Clow & Sons, 204 U.S. 286, 51 Law Ed. 488):
"We assume that the defendant lost no rights by pleading to the merits, as required, after saving its
rights. Harkness vs. Hyde, 98 U.S. 476, 25 L. ed. 237; Southern P. Co. vs. Denton, 146 U.S. 202, 36 L.
ed. 943, 13 Sup. Ct. Rep. 44. But by setting up its counterclaim the defendant became a plaintiff in its
turn, invoked the jurisdiction of the court in same action, and, by invoking, submitted to it. It is true that
the counterclaim seems to have arisen wholly out of the same transaction that the plaintiff sued upon,
and so to have been in recoupment rather than in set-off proper. But, even that common law, since the
doctrine has been developed, a demand in recoupment is recognized as a cross demand, as
distinguished from a defense. Therefore, although there has been a difference of opinion as to whether
a defendant, by pleading it, is concluded by the judgment from bringing a subsequent suit for the
residue of his claim, a judgment in his favor being impossible at common law, the authorities agree that
he is not concluded by the judgment if he does not plead his cross demand, and that whether he shall
do so or not is left wholly to his choice. Davis vs. Hedges, L.R. 6 Q.B. 687; Mondel vs. Steel, 8 Mees. &
W. 858, 872; O'Connor vs. Varney, 10 Gray, 231. This single fact shows that the defendant, if he elects
to sue upon his claim in the action against him, assumes the position of an actor and must take the
consequence. The right to do so is of modern growth, and is merely a convenience that saves bringing
another suit, not a necessity of the defense." (Emphasis supplied)

The reason for the rule is manifest. The courts can not look with favor upon a party adopting not merely inconsistent, but
actually contradictory, positions in one and the same suit, claiming that a court has no jurisdiction to render judgment
against it, but has such jurisdiction to give a decision in its favor (Dailey vs. Kennedy, 64, Mich, 208, 31 N.W. 125; Harvey
vs. Bishop, 171 Okla. 497, 43 Pac. 2d, 48; Haverstick vs. Southern P. Co. (Calif.) 37 Pac. 2d, 146)
"Another reason, equally valid, is that if such defendant shall ask for any relief other than that
addressed to his plea, he is seeking to gain an unconscionable advantage over his adversary, whereby,
if the determination be in his favor, he may avail himself of it, while if it be against him, he may fall back
upon his plea of lack of jurisdiction of the person." (Olcese vs. Justice's Court, 156 Calif. 82, 103 Pac.
318)
True, Escao made a reservation of her former plea when she filed her counterclaim; but such reservation did not remove
the obnoxious contradictory positions she assumed.
Secondly, appellee Vicenta Escao not only adopted inconsistent positions in the court below but abandoned all pretense
that court's lack of jurisdiction over her person upon appeal to this Court. She made no reference whatever to that
question in her brief as appellee. Coupled with her previous demand for affirmative relief, Vicenta's silence on appeal only
confirms her waiver of the point. Her excuse is that, the lower court having ruled in her favor, she could not very well
assign as error the overruling of her plea of non-jurisdiction. That excuse is unserviceable; for this Court has repeatedly
held (and it is now well settled) that an appellee can make counter assignments of error for the purpose of sustaining the
appealed judgment, although it is not allowed to ask that the same be reversed or modified (Bunge Court vs. Camenforte
Co., 91 Phil. 861, and cases cited therein; Cabrera vs. Provincial Treasurer of Tayabas, 75 Phil. 780; Pineda & Ampil vs.
Bartolome, 95 Phil. 930; David vs. De la Cruz, L-11656, April 18, 1958). Having failed to do so, this Court had every
reason to consider the issue of jurisdiction abandoned, and appellee's belated attempts to resurrect it, by alleging an
imaginary error on our part, are pointless and vain. The same thing can be said of her effort to escape the jurisdiction she
had invoked in her counterclaim by not appealing its rejection by the trial court. At most, it amounts to equivocal conduct
that can not revive the inconsistent claim to non-jurisdiction, abandoned by her seeking affirmative relief.
WHEREFORE, the second motion for reconsideration is denied.
Concepcion, C.J., Barrera, Dizon, Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro, JJ., concur.
Regala, J., took no part.
||| (Tenchavez v. Escao, G.R. No. L-19671 (Resolution), [July 26, 1966])